Heaton: Affirming Convictions under § 841(a) post-Ruan

In United States v. Heaton, No. 20-12568 (Feb. 14, 2023) (Wilson, Jill Pryor, Hull), the Court affirmed Dr. Heaton's convictions.   

Dr. Heaton was charged with one count of conspiracy to unlawfully distribute and dispense controlled substances, in violation of 21 U.S.C. §§ 841(b)(1)(C), 843, & 846; 102 counts of unlawful dispensing of controlled substances to patients, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C); and 27 counts of aiding and abetting a patient's acquisition of controlled substances by deception, in violation of 21 U.S.C. § 843(a)(3) and 18 U.S.C. § 2.  He proceeded to trial and was found not guilty on the conspiracy and guilty on all substantive counts.  

On appeal, he challenged the district court's jury instructions.  He first challenged the court's use of "or" instead of "and" in its § 841(a) offense instruction.  He argued that § 841(a) requires the government to prove that he prescribed medication both "outside the course of professional practice" and "for no legitimate medical purpose."  The Court disagreed, citing to prior caselaw and 21 C.F.R. § 1306.04(a). 

Dr. Heaton next argued that the court's instructions as to mens rea for § 841(a) ran afoul of the Supreme Court's recent decision in Ruan.  More specifically, he argued that the district court erred in instructing the jury to apply an objective standard to the "outside the usual course of professional practice" requirement.  The Court agreed that because the instruction allowed the jury to convict Dr. Heaton without considering whether he knowingly or intentionally issued prescriptions outside the usual course of professional practice, the jury instruction was erroneous under Ruan.  The Court, however, found any instructional error to be harmless because the evidence extensively proved beyond a reasonable doubt that Dr. Heaton knew his prescriptions were issued outside the usual course of professional practice.  In so holding, the Court distinguished this case from that of Ruan on remand, wherein the Court found the instructional error not to be harmless.   

Finally, the Court rejected Dr. Heaton's argument that § 841 is unconstitutionally vague as applied to him.  

Jackson: Affirming Denial of Motion to Reduce Sentence post-Concepcion

In United States v. Jackson, No. 19-11955 (Feb. 3, 2023) (William Pryor, Grant, Jung (M.D. Fla.)), the Court, on remand from the Supreme Court post-Concepcion, reinstated its prior decision affirming the denial of relief.  

Jackson moved to reduce his sentence under the First Step Act, arguing that he was eligible for a sentence reduction because a judge, not a jury, made the drug-quantity finding that increased his statutory range, in violation of Apprendi and Alleyne.  The Court affirmed the denial of his motion, holding that although he was convicted of a "covered offense," he did not prove that the reduction he sought would be "as if . . . the Fair Sentencing Act . . . were in effect at the time the covered offense was committed."  This was so because the Court held that in deciding motions for reduced sentences under the First Step Act, district courts may rely on earlier judge-found facts that triggered statutory penalties that the Fair Sentencing Act later modified.  In Mr. Jackson's case, because his sentence would have remained the same following consideration of the court's drug-quantity finding, any reduction would not be "as if" the Fair Sentencing Act had been in effect. 

The Court reaffirmed its holding after the Supreme Court's decision in Concepcion.  The Court first explained that Concepcion did not abrogate its holding that the district court is bound by a previous finding of drug quantity that could have been used to determine the movant's statutory penalty at the time of sentencing.  It so reasoned because, unlike Concepcion, its decision was concerned with an issue that arose before the sentencing court's discretion came into play--that is, determining how much of a drug the defendant possessed.  Concepcion, by contrast, addressed an issue that arises only after drug quantity and the corresponding statutory penalties have been established--that is, which factors the district court may consider in deciding an appropriate sentence.  The Court reaffirmed its conclusion that movants may not use a First Step Act proceeding to relitigate a drug-quantity finding.       

The Court next explained that Mr. Jackson could not use a motion for a reduced sentenced to correct an error based on Apprendi.  That his direct appeal was pending when Apprendi was decided did not change the calculus because a First Step Act motion cannot masquerade as a direct appeal.  Just as a movant may not use Apprendi to collaterally attack his sentence, he cannot rely on Apprendi to redefine his offense for purposes of a First Step Act motion.