UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 18-4936


UNITED STATES OF AMERICA,

                     Plaintiff - Appellee,

              v.

DONOVAN DAVE DIXON,

                     Defendant - Appellant.



Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. James C. Dever III, District Judge. (7:16-cr-00030-D-1)


Submitted: December 12, 2019                                Decided: December 20, 2019


Before AGEE and THACKER, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Raymond C. Tarlton, TARLTON POLK PLLC, Raleigh, North Carolina, for Appellant.
Brian A. Benczkowski, Assistant Attorney General, Matthew S. Miner, Deputy Assistant
Attorney General, Finnuala K. Tessier, Appellate Section, Criminal Division, U.S.
DEPARTMENT OF JUSTICE, Washington, D.C.; Robert J. Higdon, Jr., United States
Attorney, Jennifer May-Parker, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       A jury convicted Donovan Dave Dixon of conspiracy to unlawfully dispense and

distribute oxycodone, oxymorphone, methadone, and alprazolam, in violation of 21 U.S.C.

§§ 841(b)(1)(C), 846 (2018), and unlawfully dispensing and distributing oxycodone, in

violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (2018). The district court sentenced Dixon to

240 months’ imprisonment. On appeal, Dixon contends that the court’s jury instructions

on the substantive counts were erroneous; that the Controlled Substances Act (“CSA”), 21

U.S.C. §§ 801-904 (2018), is void for vagueness as applied to physicians; and that his

sentence is procedurally unreasonable. We affirm.

       A jury instruction is not erroneous if, “in light of the whole record, [it] adequately

informed the jury of the controlling legal principles without misleading or confusing the

jury to the prejudice of the objecting party.” United States v. Miltier, 

, 89 (4th

Cir.) (internal quotation marks omitted), cert. denied, 

(2018). In reviewing

a challenge to the jury instructions, “we do not view a single instruction in isolation,” but

instead “consider whether taken as a whole and in the context of the entire charge, the

instructions accurately and fairly state the controlling law.” United States v. Blankenship,

, 670-71 (4th Cir. 2017) (internal quotation marks omitted).

       Where, as here, the defendant failed to object to the district court’s jury instructions,

we review only for plain error. United States v. Cowden, 

, 475 (4th Cir. 2018).

To succeed on his claim, Dixon “has the burden to show that: (1) there was error; (2) the

error was plain; and (3) the error affected his substantial rights.” 

makes this

showing, “we may exercise our discretion to correct the error only if the error seriously



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affects the fairness, integrity, or public reputation of judicial proceedings.” 

internal quotation marks omitted).

       We conclude that the district court did not plainly err in instructing the jury. The

court’s instructions were consistent with our precedents, as well as cases from other Courts

of Appeals. See, e.g., United States v. Schneider, 

, 1296 (10th Cir. 2013);

United States v. Hurwitz, 

, 475-77, 479 (4th Cir. 2006); United States v. Singh,

, 1187 (4th Cir. 1995); United States v. Tran Trong Cuong, 

,

1137-39 (4th Cir. 1994); United States v. Rosen, 

, 1036 (5th Cir. 1978).

While Dixon relies on the Supreme Court’s decision in Gonzales v. Oregon, 

(2006), several Courts of Appeals have determined that Gonzales imposed no new

requirements to establish a violation of the CSA. See United States v. Volkman, 

, 385-86 (6th Cir. 2015) (collecting cases). Accordingly, Dixon cannot establish plain

error. See United States v. Harris, 

, 491 (4th Cir. 2018) (“At a minimum,

courts of appeals cannot correct an error pursuant to plain error review unless the error is

clear under current law.” (brackets and internal quotation marks omitted)); United States

v. Rouse, 

, 263 (4th Cir. 2004) (recognizing, in the absence of Supreme Court

or Fourth Circuit authority, “decisions by other circuit courts of appeals are pertinent to the

question of whether an error is plain” (internal quotation marks omitted)). However, even

if the district court plainly erred, we conclude that the evidence overwhelmingly

established that Dixon’s prescription practices were not legitimate. See United States v.

Nicolaou, 

, 570 (4th Cir. 1999) (holding, on plain error review, “in order for

the defense to establish that the jury misinstruction altered the outcome of the trial, it had



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to show that the proper instruction, on the same evidence, would have resulted in acquittal,

or at the very least a hung jury.”).

       Dixon also contends that the CSA is unconstitutional as applied to physicians. We

review unpreserved constitutional claims for plain error. United States v. Jackson, 

, 270 n.2 (4th Cir. 2013). “We consider whether a statute is vague as applied to

the particular facts at issue, for a [defendant] who engages in some conduct that is clearly

proscribed cannot complain of the vagueness of the law as applied to the conduct of others.”

United States v. Jaensch, 

, 89 (4th Cir. 2011) (brackets and internal quotation

marks omitted). Given Dixon’s flagrant conduct in this case, we conclude that Dixon

cannot establish that the CSA is vague as applied to him. Moreover, we have previously

rejected a similar as-applied challenge, as have several other Courts of Appeals. See, e.g.,

United States v. Orta-Rosario, 469 F. App’x 140, 143-44 (4th Cir. 2012) (No. 10-4684);

United States v. Birbragher, 

, 488-89 (8th Cir. 2010); United States v. Lovern,

, 1103 (10th Cir. 2009); United States v. DeBoer, 

, 1068-69

(6th Cir. 1992); United States v. Rosenberg, 

, 197-98 (9th Cir. 1975); United

States v. Collier, 

, 270-72 (5th Cir. 1973). Thus, Dixon cannot establish plain

error. See 

; see also United States v. Garcia-Lagunas, 

, 496 (4th Cir. 2016) (noting that unpublished Fourth Circuit case contradicting

appellant’s argument “suggests that even if the district court erred, such error was not

plain”).

       Finally, Dixon argues that his sentence is procedurally unreasonable because the

district court relied on a clearly erroneous fact—the Government’s assertion that Dixon’s

conduct killed someone. We review a defendant’s sentence “under a deferential abuse-of-
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discretion standard.” Gall v. United States, 

, 41 (2007). Under the Gall

standard, a sentence is reviewed for both procedural and substantive reasonableness. 

In determining procedural reasonableness, we consider whether the district court

properly calculated the defendant’s advisory Sentencing Guidelines range, gave the parties

an opportunity to argue for an appropriate sentence, considered the 18 U.S.C. § 3553(a)

(2018) factors, relied on any clearly erroneous facts, and sufficiently explained the selected

sentence. 

       We discern no procedural error. The Government admitted that it did not introduce

any evidence in the record specifically linking Dixon to any deaths. However, the expert

witness testified that the dosage of oxycodone that Dixon prescribed could have killed an

individual who did not have an opioid tolerance. The district court relied on this specific

testimony in stating that Dixon’s conduct could have resulted in someone dying. While

Dixon argues that the fact that his sentence matches the mandatory minimum for a

controlled substance offense resulting in death demonstrates the district court was

persuaded by the Government’s argument, his sentence (within the advisory Guidelines

range) was also the statutory maximum sentence on Count 1. Thus, we conclude that the

length of Dixon’s sentence does not show that his sentence was influenced by the

Government’s argument.

       Accordingly, we affirm the district court’s judgment. We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials

before this court and argument would not aid the decisional process.

                                                                                 AFFIRMED



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