United States v. Orlando Birbragher

Filing

OPINION FILED - THE COURT: ROGER L. WOLLMAN, JOHN R. GIBSON and BOBBY E. SHEPHERD. Bobby E. Shepherd, Authoring Judge (PUBLISHED) [3658203] [08-4004]

United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 08-4004
___________
United States of America,

*
*
Appellee,
*
* Appeal from the United States
v.
* District Court for the Northern
* District of Iowa.
Orlando Birbragher, also known as
*
Orlando Villarreal Birbragher,
*
also known as Orlando Villarreal,
*
*
Appellant.
*
___________
Submitted: November 20, 2009
Filed: April 26, 2010
___________
Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
___________
SHEPHERD, Circuit Judge.
Orlando Birbragher conditionally pled guilty to conspiracy to distribute
controlled substances, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(D),
841(b)(1)(D)(2), 846, 856(a)(1), and 861(a)(1), and conspiracy to launder money from
the drug conspiracy, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i), 1956(a)(1)(B)(i),
1956(h), and 1957. The district court1 sentenced Birbragher to 35 months

1

The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.

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imprisonment to be followed by a two-year term of supervised release. The court also
entered a preliminary forfeiture order of $2,465,209.92.2 Birbragher appeals the
denial of his motion to dismiss the indictment, contending that the Controlled
Substances Act (CSA), 21 U.S.C. §§ 801-971, is unconstitutionally vague as applied
to him. Birbragher also challenges his sentence. We affirm the district court’s denial
of Birbragher’s motion to dismiss the indictment and dismiss Birbragher’s appeal of
his sentence in accordance with his appeal waiver.
I.
Because Birbragher moves to dismiss the drug conspiracy charge on the ground
that the CSA is unconstitutionally vague as applied to the allegations in the
indictment, we consider the facts as alleged in the indictment. See United States v.
Mazurie, 419 U.S. 544, 550 (1975) (“It is well established that vagueness challenges
to statutes which do not involve First Amendment freedoms must be examined in the
light of the facts of the case at hand.”); see also United States v. Farm & Home Sav.
Ass’n, 932 F.2d 1256, 1259 n.3 (8th Cir. 1991) (providing that, in considering a
motion to dismiss an indictment, “we accept the government’s allegations as true,
without reference to allegations outside the indicting document” (citing Boyce Motor
Lines, Inc. v. United States, 342 U.S. 337, 343 & n.16 (1952)).

2

In its Amended Preliminary Order of Forfeiture, the district court determined
that $3,784,023 represented the amount of money involved in the drug and money
laundering conspiracy offenses. The court reduced the forfeiture amount to
$2,465,209.92 as a result of the civil forfeiture of Birbragher’s personal property in
the form of bank accounts and interest accrued on such accounts. The forfeiture
amount is not fixed in that “[t]he United States [has agreed to] seek to amend [the]
Preliminary Order of Forfeiture to credit [Birbragher] for the interest accrued on [the]
accounts.” United States v. Birbragher, No. CR 07-1023, slip op. at 4 n.1 (N.D. Iowa
June 29, 2009).
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Between approximately January 2003 and May 20, 2004, Birbragher and
Marshall Kanner were the principal owners and operators of Pharmacom International
Corporation (“Pharmacom”), a company that used the internet to distribute
prescription drugs, including Schedule III and IV controlled substances, for which a
valid prescription is required.3 Pharmacom conducted these transactions through a
website, www.buymeds.com, and other affiliated websites. Internet users logged onto
one of these websites “and placed orders for prescription drugs.” (Indictment ¶ 13.)
The individuals completed a short health history questionnaire and provided credit
card payment information. Pharmacom did not verify the customers’ identities or
require them to submit any medical records during this process.
Doctors, who had contracted with Pharmacom, reviewed “the prescription drug
orders.” (Id.) Among the doctors Pharmacom hired were Armando Angulo,
employed from July 2003 to February 2004, and Peter Lopez, employed from October
2003 to April 2004. Angulo was a Florida resident licensed to practice medicine in
Florida. Lopez was not licensed to practice medicine anywhere in the United States.
The doctors approved the orders without an in-person examination, and, generally,
without reviewing any medical records. Occasionally, the doctors emailed or called
a customer on the telephone. If the doctor “approve[d] a drug order,” Pharmacom
“digitally affixed” the doctor’s electronic signature to a “prescription” created by its
computers. (Id.)
Pharmacom contracted with pharmacies to fill the “approved ‘prescription’
orders.” (Id.) They were batched and downloaded from Pharmacom’s website by the
pharmacies, who then filled and shipped them to customers throughout the United
States. For example, Union Family Pharmacy (“Union Family”) of Dubuque, Iowa,
3

The Controlled Substances Act (CSA), 21 U.S.C. §§ 801-971, defines certain
drugs as “controlled substances” and lists them within one of five established
schedules, depending on potential for abuse and accepted medical use. 21 U.S.C. §
802(6).
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filled “prescriptions” for Pharmacom from August 18, 2003, through September 12,
2003. Jack Huzl, a licensed pharmacist in Iowa and Colorado, owned and operated
Union Family. Huzl hired Douglas Bouchey, a pharmacist licensed in Iowa and
Michigan, to fill Pharmacom’s “prescriptions.” Union Family filled at least 4,195
“prescriptions” for Pharmacom and distributed at least 180,430 Schedule III and
53,310 Schedule IV dosage units. Union Family shipped the vast majority of these
“prescriptions” to customers outside Iowa, even though Union Family was only
registered as a pharmacy in Iowa.
Collectively, Pharmacom’s doctors and pharmacies authorized and filled more
than 246,000 “prescriptions” for controlled substances, totaling over 12.5 million
Schedule III dosage units and more than 1.9 million Schedule IV dosage units.
Pharmacom’s customers paid in excess of $40 million for these “prescriptions.”
Pharmacom used the proceeds of this unlawful activity to pay contracting doctors
approximately $2.29 million for authorizing “prescriptions.” Pharmacom paid
approximately $2.26 million to the pharmacies for filling the orders. The funds
deposited into the bank accounts of the doctors and the pharmacies allowed them to
continue operating as critical members of the drug conspiracy. Pharmacom also paid
approximately $7.75 million to acquire the Schedule III and IV controlled substances;
$1.60 million for shipping costs; $3.14 million for marketing costs, including internet
advertising; and $1.99 million to its employees to help operate its business. These
financial transactions totaled approximately $19 million.
Birbragher, along with Kanner, Huzl, Bouchey, Angulo, and Lopez
(collectively “codefendants”), and others acting at their behest, shifted drug proceeds
to shell corporations that they had created to conceal the nature, location, source,
ownership and control of the proceeds. The shell corporations were almost all Florida
corporations, with the exception of one corporation registered in the U.S. Virgin
Islands. Pharmacom also sent money to various bank accounts or trust accounts
controlled by or for the benefit of Birbragher’s relatives or Kanner’s relatives.
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Birbragher, his codefendants, and others working at their behest, conducted at least
859 money-laundering transactions involving $10,000 or more in drug proceeds.4
On November 7, 2007, Birbragher and his codefendants were charged in a
31-count indictment.5 Birbragher was charged in Count I, a drug conspiracy with
multiple objects, and Count II, a multiple object conspiracy to launder money from
the drug conspiracy alleged in Count I.
With regard to the drug conspiracy, the indictment alleges that between
approximately January 2003 and May 20, 2004, “in the Northern District of Iowa and
elsewhere,” Birbragher, his codefendants, and others conspired to violate the CSA,
specifically, 21 U.S.C. § 846. (See Indictment ¶ 11.) The drug conspiracy had four
objects:
1)

To dispense and cause to be dispensed Schedule III controlled
substances outside of the usual course of professional practice and

4

These money-laundering transactions involved using the proceeds of the drug
conspiracy to: pay individuals, who operated affiliate websites that funneled Internet
drug customers to www.buymeds.com; pay medical doctors, or purported medical
doctors, for authorizing “prescriptions” on behalf of Pharmacom; and pay pharmacies
for filling “prescriptions” on behalf of Pharmacom. (Indictment ¶ 26.) In addition,
the transactions included the transfer of drug conspiracy proceeds from Pharmacom
bank accounts to: accounts controlled by Birbragher; accounts controlled by Kanner;
and A.A., an original investor and officer of Pharmacom. (Id.) Finally, the
transactions involved transferring proceeds of the drug conspiracy from bank accounts
controlled by Pharmacom or Birbragher to: M.N. for the purchase of jewelry; pay
private charter plane companies; purchase or lease vehicles; and purchase real estate,
professional basketball tickets, coffee, landscaping, interior design services, and
artwork; and pay investment company fees. (Id.)
5

A superceding indictment was filed on August 6, 2008; however, the
superceding indictment did not materially alter the substantive charges against
Birbragher.
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without legitimate medical purpose, in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(D); and
2)

To dispense and cause to be dispensed Schedule IV controlled
substances outside of the usual course of professional practice and
without legitimate medical purpose, in violation of Title 21,
United States Code, Sections 841(a)(1) and 841(b)(1)(D)(2);

3)

To knowingly open, lease, rent, use, and maintain pharmacy
fulfillment centers for the purpose of distributing Schedule III and
Schedule IV controlled substances outside the usual course of
professional practice and without legitimate medical purpose, in
violation of Title 21, United States Code, Section 856(a)(1); and

4)

To knowingly and intentionally employ, hire, persuade, induce,
entice, and coerce [minors], to violate the drug laws by dispensing
and causing to be dispensed Schedule III and Schedule IV
controlled substances outside of the usual course of professional
practice and without legitimate medical purpose, in violation of
Title 21, United States Code, Section 861(a)(1).

This is in violation of Title 21, United States Code, Section 846.
(Indictment ¶ 11.)
As to the money laundering conspiracy, the indictment alleges that between
approximately January 2003 and August 9, 2004, “in the Northern District of Iowa
and elsewhere,” Birbragher, his codefendants, and others conspired to conduct, and
attempt to conduct, financial transactions involving the proceeds of the Count I drug
conspiracy (“the unlawful activity”), in violation in 18 U.S.C. § 1956(h). The money
laundering conspiracy had three objects:
1)

To conduct and attempt to conduct one or more financial
transaction(s) which involved the proceeds of specified unlawful
activity, that is the illegal dispensing of Schedule III and IV
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controlled substances, in violation of Title 21, United States Code,
Section 841(a)(1), knowing that the property involved in the
financial transaction(s) represented the proceeds of unlawful
activity, with the intent to promote the carrying on of the specified
unlawful activity, in violation of Title 18, United States Code,
Section 1956(a)(1)(A)(i);
2)

To conduct and attempt to conduct one or more financial
transaction(s) which involved the proceeds of specified unlawful
activity, that is the illegal dispensing of Schedule III and IV
controlled substances, in violation of Title 21, United States Code,
Section 841(a)(1), knowing that the property involved in the
financial transaction(s) represented the proceeds of unlawful
activity, and knowing that the transactions were designed in whole
or in part to conceal and disguise the nature, the source, the
ownership, or the control of the proceeds of specified unlawful
activity, in violation of Title 18, United States Code, Section
1956(a)(1)(B)(i); and

3)

To knowingly engage and attempt to engage in one or more
monetary transaction(s) of a value greater than $10,000 derived
from specified unlawful activity, that is, the illegal dispensing of
Schedule III and IV controlled substances (a violation of Title 21,
United States Code, Section 841(a)(1)), in violation of Title 18,
United States Code, Section 1957.

(Indictment ¶ 22.)
Bouchey and Kanner moved to dismiss the indictment on the ground that the
CSA was unconstitutionally vague as applied to them. Birbragher and Lopez joined
the motions.6 The district court denied the motions to dismiss as to all of the
defendants, concluding that the vagueness doctrine did not apply. Specifically, as to

6

Huzl died shortly after the indictment was filed. Angulo is a fugitive whose
last known location was Panama.
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Birbragher and Kanner, the court observed that: (1) they were nonregistrants under
the CSA,7 (2) courts have considered and rejected void for vagueness challenges to
the application of the CSA to nonregistrants, (3) nonregistrants have been charged and
convicted under the CSA for conduct similar to that alleged in the indictment, and (4)
neither had offered precedent to the contrary or any reason to depart from that
precedent.
Birbragher entered into a plea agreement which contained an appeal waiver
provision. On August 5, 2008, Birbragher entered a conditional plea of guilty8 to the
first two objects of the Count I drug conspiracy and the third object of the Count II
money laundering conspiracy. The district court conducted Birbragher’s sentencing
hearing on December 17, 2008. Based on his offense, the court determined that
Birbragher’s advisory Guidelines range was 46 to 57 months. The court then granted
the government’s downward departure motion due to Birbragher’s substantial
assistance. See United States Sentencing Commission, Guidelines Manual, §5K1.1
(Nov. 2009) (“Upon motion of the government stating that the defendant has provided
substantial assistance in the investigation or prosecution of another person who has
committed an offense, the court may depart from the guidelines.”). The government
recommended a 5-10 percent reduction; however, the court reduced Birbragher’s
advisory Guidelines range by approximately 24 percent, resulting in a final advisory
Guidelines range of 35 to 43 months. The court sentenced Birbragher to 35 months
imprisonment to be followed by a 2-year term of supervised release. The court also

7

“Every person who manufactures or distributes any controlled substance” must
obtain a registration from the Attorney General. 21 U.S.C. § 822(a). Therefore,
“nonregistrants” under the CSA include those who have not obtained such a
registration.
8

A defendant who wishes to preserve his right to appeal may enter a conditional
plea of guilty, “reserving in writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.” Fed. R. Crim. P. 11(a)(2).
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entered a preliminary forfeiture order in the net amount of $2,645,760.59. See infra
note 2. Birbragher brings this appeal.
II.
Birbragher asserts that the CSA is unconstitutionally vague in violation of his
Fifth Amendment right to due process of law as applied to his ownership and
operation of Pharmacom from March 2003 through May 2004. We review de novo
whether a penal statute, like the CSA, is void for vagueness under the Fifth
Amendment. United States v. Orchard, 332 F.3d 1133, 1137 (8th Cir. 2003).
“The Fifth Amendment guarantees every citizen the right to due process.
Stemming from this guarantee is the concept that vague statutes are void.” United
States v. Washam, 312 F.3d 926, 929 (8th Cir. 2002) (citing Connally v. Gen. Constr.
Co., 269 U.S. 385, 391 (1926)). The vagueness doctrine recognizes that “[a] statute
which either forbids or requires the doing of an act in terms so vague that men of
common intelligence must necessarily guess at its meaning and differ as to its
application, violates the first essential of due process of law.” Id. (quoting Connally,
269 U.S. at 391). In other words, “[v]oid for vagueness simply means that criminal
responsibility should not attach where one could not reasonably understand that his
contemplated conduct is proscribed.” Id. (quoting United States v. Nat’l Dairy Prods.
Corp., 372 U.S. 29, 32-33 (1963)); see also Grayned v. City of Rockford, 408 U.S.
104, 108 (1972) (“[L]aws [must] give the person of ordinary intelligence a reasonable
opportunity to know what is prohibited, so that he may act accordingly. Vague laws
may trap the innocent by not providing fair warning.”). “To defeat [Birbragher’s]
vagueness challenge, [the CSA] must pass a two-part test: The statute must first
provide adequate notice of the proscribed conduct, and second, not lend itself to
arbitrary enforcement.” United States v. Barraza, 576 F.3d 798, 806 (8th Cir. 2009)
(quotation omitted).

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A.
First, we consider whether the CSA provided Birbragher with adequate notice
that the statute prohibited his ownership and operation of Pharmacom. Birbragher
asserts that he lacked the requisite notice for two reasons: (1) when reading the CSA
in 2003, it was unclear that the manner in which Pharmacom dispensed Schedule III
and IV controlled substances was prohibited, and (2) the fact that Congress passed the
Ryan Haight Online Pharmacy Consumer Protection Act of 2008 (the “Online
Pharmacy Act”),9 21 U.S.C. § 829(e), on October 15, 2008 (effective on April 15,
2009) establishes that, prior to the Online Pharmacy Act’s passage, it was unclear
whether the CSA criminalized Birbragher’s ownership and operation of Pharmacom.
Here, individuals purchased Schedule III and IV drugs through Pharmacom.
See 21 U.S.C. § 802(6). The CSA provides: “it shall be unlawful for any person
knowingly or intentionally [to] distribute . . . a controlled substance.” 21 U.S.C.
§ 841. The CSA further criminalizes a conspiracy to violate § 841. Id. § 846. It is
also unlawful to conspire to launder the proceeds of “specified unlawful activity,”
which includes illegal distribution of controlled substances. 18 U.S.C. § 1956.
The CSA contains several exceptions to § 841’s broad prohibition on the
distribution of controlled substances. The exception relevant here empowers the
Attorney General to implement a registration process to authorize medical
professionals, known as “registrants,” to dispense controlled substances such that
every physician and pharmacy that distributes or dispenses any controlled substances
must obtain a registration issued by the Attorney General. 21 U.S.C. § 822(a)-(b).
Thus, the responsibility for the proper prescribing and dispensing of controlled
9

“Ryan Haight . . . died at age eighteen in 2001 from an overdose of
hydrocodone he obtained over the internet from a prescription [that was] issued
unlawfully . . . .” United States v. Fuchs, No. 3:02-CR-369-P, 2005 WL 440429, at
*1 (N.D. Tex. Feb. 23, 2005) (unpublished).
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substances falls not only on the prescribing physician but also upon the pharmacist
who fills the prescription. 21 C.F.R. §§ 1306.04(a), 1306.05(a). A controlled
substance may be prescribed only “for a legitimate medical purpose by an individual
practitioner acting in the usual course of his professional practice.” Id. § 1306.04(a).
There are no statutory definitions of “legitimate medical purpose” or “usual course of
professional practice.” However, case law provides that “[t]he term ‘professional
practice’ refers to generally accepted medical practice[.]” United States v. Vamos,
797 F.2d 1146, 1151 (2d Cir. 1986) (citing United States v. Norris, 780 F.2d 1207,
1209 (5th Cir. 1986)).
Section 841(a)(1) provides: “Except as authorized by this subchapter, it shall
be unlawful for any person knowingly or intentionally . . . to manufacture, distribute,
or dispense, or possess with intent to manufacture, distribute, or dispense a controlled
substance.” 21 U.S.C. § 841(a)(1). In United States v. Moore, 423 U.S. 122 (1975),
the Supreme Court held that, despite registration, “physicians can be prosecuted under
§ 841 when their activities fall outside the usual course of professional practice”
because “only the lawful acts of registrants are exempted.” Id. at 124, 131. With
respect to the evidence supporting the physician’s conviction for distributing
methadone in violation of § 841, the Court determined:
The evidence presented at trial was sufficient for the jury to find that
respondent’s conduct exceeded the bounds of “professional practice.”
[H]e gave inadequate physical examinations or none at all. He ignored
the results of the tests he did make. He did not give methadone at the
clinic and took no precautions against its misuse and diversion. He did
not regulate the dosage at all, prescribing as much and as frequently as
the patient demanded. He did not charge for medical services rendered,
but graduated his fee according to the number of tablets desired. In
practical effect, he acted as a large-scale “pusher”—not as a physician.
Id. at 142-43 (footnote omitted).

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In addition to its holding concerning physicians, the Moore Court observed,
“By its terms, § 841 reaches ‘any person.’” Id. at 131; see also United States v.
Johnson, 831 F.2d 124, 127 (6th Cir. 1987) (“[T]he basic proscription in section 841
applies to ‘any person’ . . . .”). It follows that § 841 applies to nonregistrants. The
Sixth Circuit expressly addressed this issue in Johnson. There, the defendant, who
was not a licensed physician, oversaw the administration of a medical center where
prescriptions for controlled substances were illegally dispensed and was convicted of
10 counts of distribution of controlled substances and 2 counts of aiding and abetting.
831 F.2d at 126 (citing 21 U.S.C. §§ 2, 841(a)). On appeal, he contended that, as a
nonphysician, he could not “be lawfully convicted under section 841 for issuing bogus
prescriptions.” Id. at 128. The Sixth Circuit observed,
We are not persuaded by this argument. Essentially, [the defendant] is
contending that he does not fit within the category of physicians which,
under Moore, were excluded from the exception for practitioners
registered under section 822. Proceeding from this assumption, [the
defendant] then reaches the dubious conclusion that he is not subject to
the general rule. The weakness of this argument is apparent. Obviously,
the Supreme Court’s pronouncements in Moore are not directly
applicable to [the defendant] since he was never a licensed practitioner,
and therefore, never eligible for the exception contained in the first
sentence of section 841. Thus, [the administrator of a medical center]
falls within the general rule which applies to “any person.”
Id.; see also United States v. Mahar, 801 F.2d 1477, 1480, 1487 (6th Cir. 1986)
(rejecting challenge to the sufficiency of the evidence to convict medical clinic
owner/president/manager under CSA for drug conspiracy); Vamos, 797 F.2d at 1148,
1151-54 (affirming nurse/office manager’s conviction for aiding and abetting the
distribution of controlled substances outside the scope of professional medical practice
under the CSA); United States v. Albert, 675 F.2d 712, 715-16 (5th Cir. 1982)
(rejecting physician’s argument that his conviction for conspiracy to dispense
controlled substances in violation of the CSA should be reversed because his
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coconspirators were nonphysicians); United States v. Hicks, 529 F.2d 841, 844 (5th
Cir. 1976) (per curiam) (rejecting security guard’s argument that, as a matter of law,
he was exempt from prosecution under § 841 because as a nonphysician he was
legally incapable of dispensing); United States v. Green, 511 F.2d 1062, 1070-71 (7th
Cir. 1975) (rejecting challenge of the defendant, owner of a building that housed a
medical center and pharmacy involved in prescription sales operation, to the
sufficiency of the evidence supporting his conviction for conspiracy with physician
and pharmacist to violate § 841(a)); United States v. Prejean, 429 F. Supp. 2d 782,
787, 804 (E.D. La. 2006) (rejecting argument of defendant, the owner of three pain
management clinics and two pharmacies, that indictment should be dismissed because
it failed to state a violation of § 841 because the statute could not be applied to
nonphysician/nonregistrant); United States v. Lovin, No. 07cr2016-IEG, 2008 WL
4492616, at *4 (S.D. Cal. Sept. 29, 2008) (unpublished) (“Courts have upheld
convictions of non-practitioners for conspiring to distribute, or aiding and abetting the
distribution of controlled substances based upon prescriptions issued outside the
course of medical practice.”). Thus, it is well settled that § 841 applies to Birbragher,
as the owner and operator of a company involved in an alleged conspiracy with
doctors and pharmacists to distribute controlled substances outside the scope of their
professional practice.
Furthermore, the fact that the nonregistrant in this case engaged in a drug
conspiracy in violation of § 841 via the internet is immaterial. The Fifth and Tenth
Circuits, and two district courts, have approved the application of § 841 to the
operation of internet pharmacies. See United States v. Fuchs, 467 F.3d 889, 908-09
(5th Cir. 2006) (rejecting sufficiency of the evidence challenge to drug conspiracy
conviction of pharmacist who had set up internet pharmacy); United States v. Nelson,
383 F.3d 1227, 1228-30 (10th Cir. 2004) (rejecting sufficiency of the evidence
challenge to drug conspiracy conviction of physician who had issued prescriptions for
internet pharmacy); United States v. Quinones, 536 F. Supp. 2d 267, 268-73
(E.D.N.Y. 2008) (denying motion to dismiss indictment charging creators/operators
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of websites with distribution of controlled substances, conspiracy with medical
professionals to distribute controlled substances, and money laundering on the ground
that the acts committed were not prohibited by section 841 of the CSA); United States
v. Hernandez, No. 07-60027-CR, 2007 WL 2915854, at *1-11 (S.D. Fla. Oct. 4, 2007)
(unpublished) (denying motion to dismiss indictment charging physicians, business
owners, and corporations with conspiracy to distribute controlled substances in
connection with sales over the internet).
Birbragher was not indicted because his business, Pharmacom, utilized the
internet to distribute controlled substances. Rather, he was prosecuted for conspiring
with doctors and pharmacists to distribute controlled substances in a manner which
the government alleges is outside the usual course of professional practice. See
Quinones, 536 F. Supp. 2d at 271 (“[N]on-registrants can be prosecuted for conspiring
with or aiding and abetting registrants . . . regardless of the means used to carry out
the distribution: If the means are within the usual scope of professional practice, they
are legal; if they are outside that scope, they are illegal.”). Specifically, Birbragher
was prosecuted because of the manner in which Pharmacom allegedly operated in that:
Contracting doctors issued “prescriptions” for controlled substances:
(1) based on “a short health history questionnaire,” where “[t]he customers’
identities were not verified, nor were customers required to submit any
medical records, as part of the ordering process[,]”
(2) “without examining any of the customers, and in the vast majority of
cases, without reviewing any medical records[,]” and
(3) “[t]he only contact the doctors had with the customers, if any contact
occurred at all, was the occasional brief telephone call or an exchange of
e-mails.”

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Contracting pharmacies filled “prescriptions” for controlled substances:
(1) “shipp[ing] the controlled substance ‘prescriptions’ to customers
throughout the United States,”
(2) “without contacting the customers or the doctors who had approved, or
purportedly approved, the prescription drug orders.”
(Indictment ¶ 13.) The Tenth Circuit recently rejected a vagueness challenge to the
CSA by a pharmacist in a similar fact situation. See United States v. Lovern, 590 F.3d
1095 (10th Cir. 2009). The court stated:
Mr. Lovern was a pharmacist with decades of experience. According to
his own testimony, Mr. Lovern understood that he had a legal duty to
ensure he filled only those prescriptions issued in the usual course of
medical practice. He understood as well that a patient-physician
relationship, including a physical examination, usually precedes a
prescription in contemporary medical practice. And he knew that the
prescriptions he filled at [the pharmacy] were issued after a customer
filled in an online questionnaire with no follow-up physical examination
or consultation with a physician. A reasonable jury could find that Mr.
Lovern knowingly filled prescriptions issued outside the usual course of
medical practice, something Mr. Lovern admitted he could not do
lawfully. On this record, we cannot say that Mr. Lovern was the
unwitting victim of a law he didn’t understand.
Id. at 1103.
A reasonable person reading § 841(a)(1) is on notice that distributing controlled
substances violates the CSA unless such distribution fits within an exception. Such
a person is also on notice that the “prescription exception” of § 1306.04 does not
apply to “prescriptions” issued and/or filled outside the usual course of professional
practice. Furthermore, we note that Birbragher has not cited any authority, and we
find none, that either the CSA or 21 C.F.R. § 1306.04 fails to provide adequate notice
of what conduct is prohibited. Cf. United States v. DeBoer, 966 F.2d 1066, 1068-69
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(6th Cir. 1992) (“[T]he language in § 841(a)(1) and 21 C.F.R. § 1306.04(a) clearly
defines the pharmacist’s responsibilities that give rise to conduct that constitutes an
unlawful distribution of a prescription drug.”); United States v. Rosenberg, 515 F.2d
190, 197 (9th Cir. 1975) (“The language [‘in the course of professional practice’]
clearly means that a doctor is not exempt from the statute when he takes actions that
he does not in good faith believe are for legitimate medical purposes.”); United States
v. Collier, 478 F.2d 268, 270-72 (5th Cir. 1973) (rejecting argument that § 841(a), as
applied to physicians, is unconstitutionally vague). In sum, Birbragher had adequate
notice that the distribution of controlled substances outside the course of professional
practice violated the CSA regardless of the means of distribution.
B.
Next, we ask whether § 841(a)(1) of the CSA allows for arbitrary enforcement.
“Congress must provide minimal requirements to guide law enforcement . . . .”
Washam, 312 F.3d at 931. The Supreme Court has identified this inquiry as “the more
important aspect of the vagueness doctrine” because “[w]here the legislature fails to
provide such minimal guidelines, a criminal statute may permit ‘a standardless sweep
[that] allows policemen, prosecutors, and juries to pursue their personal
predilections.’” Kolender v. Lawson, 461 U.S. 352, 358 (1983) (quoting Smith v.
Goguen, 415 U.S. 566, 575 (1974)). Furthermore,
It would certainly be dangerous if the legislature could set a net large
enough to catch all possible offenders, and leave it to the courts to step
inside and say who could be rightfully detained, and who should be set
at large. This would, to some extent, substitute the judicial for the
legislative department of the government.
United States v. Reese, 92 U.S. 214, 221 (1875).

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Section 841(a)(1) broadly prohibits the distribution of controlled substances.
Section 822 provides an exception for physicians and pharmacies who obtain a
registration from the Attorney General in order to prescribe and dispense controlled
substances. Pursuant to § 1306.04(a), a controlled substance may only be prescribed
and dispensed “for a legitimate medical purpose by an individual practitioner acting
in the usual course of his professional practice.” The provisions of the CSA at issue
here, and its accompanying regulation, are sufficiently clear that the speculative
danger of arbitrary enforcement does not render it void for vagueness. See DeBoer,
966 F.2d at 1068-69; Rosenberg, 515 F.2d at 197-98; Collier, 478 F.2d at 272; see
also Quinones, 536 F. Supp. 2d at 274 (“By its terms, § 841(a)(1) creates a sweeping
prohibition on distribution of controlled substances, subject to a relatively narrow
exception for distribution within the usual scope of professional practice. That latter
phrase has an objective meaning that prevents arbitrary prosecution and conviction:
Neither the government nor the jury is free to impose its own subjective views about
what is and is not appropriate; rather, the government is obliged to prove, and the jury
constrained to determine, what the medical profession would generally do in the
circumstances.”).
C.
Finally, Birbragher argues that the fact that Congress passed the Online
Pharmacy Act after he engaged in the actions giving rise to the indictment establishes
that the CSA, as it existed prior to the Online Pharmacy Act, was unclear as to
whether it prohibited such conduct. Birbragher specifically relies on Senator Leahy’s
comments with regard to the Online Pharmacy Act.
The Online Pharmacy Act prohibits the delivery, distribution, or dispensing of
a controlled substance that is a prescription drug over the internet without a “valid
prescription” and defines “valid prescription” as a prescription issued by “a
practitioner who has conducted at least 1 in-person medical evaluation of [a] patient.”
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21 U.S.C. § 829(e)(1)-(2)(A)(i). Discussing the Online Pharmacy Act, Senator Leahy
stated:
I hope this bill will help reduce the prevalence of rogue online
pharmacies in our society. We are a nation in the midst of a
technological revolution. In the digital age, the Internet has provided
Americans with better access to convenient and more affordable
medicine. Unfortunately, the prevalence of rogue online pharmacies has
also made the Internet an increasing source for the sale of dangerous
controlled substances without a licensed medical practitioner’s valid
prescription. Online drug traffickers have used evolving tactics to evade
detection by law enforcement and circumvent the proper constraints of
doctors and pharmacists.
154 Cong. Rec. S10184-03 (2008).
We find Birbragher’s reliance on the Online Pharmacy Act and Senator Leahy’s
statement misplaced. “[S]tatutes are construed by the courts with reference to the
circumstances existing at the time of the passage.” United States v. Wise, 370 U.S.
405, 411 (1962); see Quinones, 536 F. Supp. 2d at 273 (“[I]t may well be that
Congress intended the [Online Pharmacy Act] to proscribe, by a clear-cut, per se rule,
the distribution of controlled substances over the Internet without a face-to-face
meeting between patient and doctor; it does not follow that the same conduct is not
within the embrace of the current prohibition of distribution outside the usual scope
of professional practice.”); Lovin, 2008 WL 4492616, at *5 (“The fact that the Senate
has passed a bill which would amend the CSA to explicitly prohibit the conduct at
issue in this case does not invalidate the government’s prosecution of defendants
under the existing provisions of the CSA.”). As the preceding analysis demonstrates,
the CSA, as it existed when Birbragher engaged in the conduct alleged in the
indictment, was not unconstitutionally vague as applied to Birbragher’s ownership and
operation of Pharmacom. Therefore, we reject Birbragher’s vagueness challenge.

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III.
Birbragher next challenges his sentence, asserting that the district court erred
by giving undue weight to the government’s § 5K1.1 substantial assistance downward
departure recommendation. Specifically, Birbragher asserts that the court incorrectly
believed, as a result of the plea agreement, that it was required to follow the
government’s reasoning for its “low request,” a 5-10 percent reduction. (Appellant
Br. 32.) The government responds that the appeal waiver contained in Birbragher’s
signed plea agreement warrants dismissal of this portion of the appeal. “Whether a
valid waiver of appellate rights occurred is a question of law that we will review de
novo.” United States v. Sisco, 576 F.3d 791, 795 (8th Cir. 2009).
“A plea agreement is essentially a contract between the government and the
defendant. A defendant may waive his appellate rights pursuant to that agreement.”
Id. (citation omitted).
[W]hen reviewing a purported waiver, we must confirm that the appeal
falls within the scope of the waiver and that both the waiver and plea
agreement were entered into knowingly and voluntarily. But, we will
not enforce a waiver that results in a miscarriage of justice. The burden
of proof is on the government to prove that a plea agreement clearly and
unambiguously waives a defendant’s right to appeal. Any ambiguities
in the agreement are construed against the government.
Id. (quotations and citations omitted).
Birbragher entered into a plea agreement containing the following provision:
APPEAL WAIVER
After conferring with his attorney and after being advised of his appeal
rights, the defendant knowingly and voluntarily waives his right to
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appeal his conviction and the sentence imposed (except as expressly
reserved in paragraph 1 of this agreement). The defendant also waives
his right to file post-conviction relief actions, including actions pursuant
to 18 U.S.C. § 3582(c)(2) and 28 U.S.C §§ 2255 and 2241, coram nobis
actions and motions to reconsider or reduce his sentence. The defendant
retains his right to appeal or contest his sentence in the following limited
circumstances: (1) if the sentence is not in accordance with this plea
agreement; (2) if the sentence imposed exceeds the maximum statutory
penalty; (3) if the sentence is unconstitutionally defective. Further, after
being fully advised of the implications, the defendant knowingly and
voluntarily waives his right to file post-conviction relief actions,
including actions pursuant to 18 U.S.C. § 3582(c)(2) and 28 U.S.C. §§
2255 and 2241 and coram nobis actions. This waiver does not, however,
prevent him from challenging the effectiveness of his attorney after
conviction and sentencing. Defendant does not have any complaints at
this time about the effectiveness of his attorney. The waivers set out
above relate to any issues which now exist or which may arise in the
future. The defendant agrees to these waivers in order to cause the
government to accept the provisions and stipulations of this plea
agreement, to avoid trial, and to have his case finally concluded. The
defendant understands that at the conclusion of his sentencing hearing,
the court will note that the defendant’s appeal rights are limited by this
waiver. No assurances or promises have been made by any party as to
what the defendant’s ultimate sentence will be.
(App. 24-25.) Paragraph 1 of the plea agreement, incorporated by reference into the
explicit appeal waiver, contained, in relevant part, the following language:
The United States consents to this being a conditional plea of guilty
made pursuant to Federal Rule of Criminal Procedure 11(a)(2). The
United States and the defendant agree that at the time the defendant
pleads guilty, the defendant will provide the United States and the court
with a written reservation of the right to appeal from any adverse
determination of the defendant’s motion to dismiss based on vagueness
of the statutes filed at Dockets 100, 102, . . . 105[, 207, 210, and 248].
This written reservation will be filed with the Court at the time the guilty
plea is entered in order to make this plea conditional. If the defendant
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fails to file this written reservation at the time he enters his guilty plea in
accordance with Federal Rule of Criminal Procedure 11(a)(2), the
defendant understands and agrees his plea of guilty will be
unconditional. If the Court does not approve the entry of this conditional
plea, the defendant and the United States shall not be bound by this
agreement.
(Id. at 2 (emphasis omitted).)
Under Sisco, this court will enforce an appeal waiver if: (1) the record indicates
that the defendant entered into the agreement and the waiver knowingly and
voluntarily; (2) the appeal falls within the scope of the waiver; and (3) enforcing the
waiver would not result in a miscarriage of justice. 576 F.3d at 795. Here, each
requirement is met. Although Birbragher does not even argue that any of these
requirements are lacking, we conclude that each is met. First, there is no indication
in the record of a lack of voluntariness. Second, Birbragher’s challenge to his
sentence falls within the scope of the appeal waiver. Birbragher retained his right to
appeal his sentence only if it was not in accordance with the plea agreement, his
sentence exceeded the maximum statutory penalty, or his sentence was
unconstitutionally defective. Finally, we find no miscarriage of justice in enforcing
Birbragher’s appeal waiver. Therefore, we enforce Birbragher’s waiver of his right
to appeal and decline to address the merits of his claim.10
IV.
For the reasons stated above, we affirm the judgment of the district court in
Birbragher’s appeal of the denial of his motion to dismiss the indictment, and we
dismiss Birbragher’s appeal of his sentence based on the waiver.
______________________________
10

We note that section 5K1.1 provides that a district court may “tak[e] into
consideration the government’s evaluation of the assistance rendered[.]” USSG
§5K1.1(a)(1). Furthermore, Birbragher has not offered any record support for the
notion that the district court believed it was constrained by the government’s
recommendation. On the contrary, the district court actually exceeded the
government’s reduction recommendation of 5-10 percent, reducing Birbragher’s
advisory Guidelines range by approximately 24 percent.
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