United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
October 9, 2006
FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
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No. 05-10880
(Summary Calendar)
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ROBERT OGLE,
Defendant-Appellant.
Appeal from the United States District Court
For the Northern District of Texas
USDC No. 3:02-CR-369-4
Before KING, HIGGINBOTHAM, and GARZA, Circuit Judges.
PER CURIAM:*
Robert Ogle appeals the denial of his motion to dismiss the indictment against him for
conspiring to distribute controlled substance outside the usual course of professional practice, in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
violation of 21 U.S.C. § 846 of the Controlled Substances Act (“CSA”), and conspiring to launder
money, in violation of 18 U.S.C. §§ 1956, 1957. Ogle argues that the indictment improperly subjects
him to criminal liability for a civil regulatory violation. Ogle also challenges the indictment on the
ground that his prosecution under the CSA constitutes an impermissible federal regulation of medical
practice, an area traditionally reserved to the states.
We review the district court’s denial of Ogle’s motion to dismiss his indictment de novo. See
United States v. Wilson, 249 F.3d 366, 371 (5th Cir. 2001). Ogle, a physician, was indicted for
violating 21 U.S.C. § 846 by conspiring to dispense hydrocodone over the internet in violation of 21
U.S.C. § 841(a)(1). Hydrocodone, a Schedule III controlled substance, can only be legally dispensed
either directly by, or through the prescription of, a practitioner. 21 U.S.C. § 829(b). 21 C.F.R.
§ 1306.04, a regulation promulgated by the Attorney General, provides that only those prescriptions
“issued for a legitimate medical purpose by an individual practitioner acting in the usual course of his
professional practice” may be used to legally dispense controlled substances under § 829(b). 21
C.F.R. § 1306.04(a).
Ogle argues that the indictment reflects an attempt to impermissibly “bootstrap” a violation
of 21 C.F.R. § 1306.04(a), which he characterizes as a civil regulation, into a criminal offense. This
argument is without merit. § 1306.04(a) is not a civil regulation but instead an interpretive one that
defines the circumstances subjecting practitioners to criminal prosecution. United States v. Hayes,
595 F.2d 258, 259 (5th Cir. 1979). Further, the indictment only charges Ogle with violating § 846
by conspiring to violate § 841(a)(1), and does not rely on § 1306.04(a) at all. It is well established
that “registered physicians can be prosecuted under § 841 when their activities fall outside the usual
course of professional practice.” United States v. Moore, 423 U.S. 122, 124 (1975); United States
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v. Rosen, 582 F.2d 1032, 1033 (5th Cir. 1978). The fact that the elements of Ogle’s conduct
necessary to prove the criminal offense under § 846 and § 841(a)(1) also encompass facts sufficient
to prove a violation of § 1306.04(a) does not invalidate the indictment.
Ogle also contends that his prosecution under the CSA constitutes an impermissible federal
regulation of medical practice. This issue was raised by Ogle below in a motion to reconsider his
motion to dismiss the indictment but shares no common legal ground with the arguments made in the
original motion to dismiss. The motion to reconsider was filed after Ogle pleaded guilty and waived
most of his rights of appeal. After the district court denied this motion, Ogle failed to move to modify
the original waiver of appeal, which only reserves the right to appeal the original order denying the
motion to dismiss, to add an exception for the argument raised in the motion to reconsider. He also
made no attempt to withdraw his guilty plea and accompanying waiver of appeal. Ogle’s appeal of
the district court’s denial of the argument raised in the motion to reconsider is therefore barred by
the waiver. See United States v. Burns, 433 F.3d 442, 450 n.9 (5th Cir. 2005) (enforcing defendant’s
waiver of appeal and barring consideration of issue on appeal where defendant did not seek to amend
waiver or withdraw plea after court denied sentencing objection, and instead sought on appeal to
modify the waiver while retaining the benefits of the government’s concessions in the plea
agreement).
AFFIRMED.
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