UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-4314

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

versus

OLEN TYRONE SMITH,

Defendant - Appellant.

Appeal from the United States District Court for the District of

Maryland, at Baltimore. William D. Quarles, Jr., District Judge.

(CR-03-210-WDQ)

Submitted: May 25, 2005 Decided: July 13, 2005

Before NIEMEYER, MOTZ, and GREGORY, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished per

curiam opinion.

Francis A. Pommett, III, LAW OFFICE OF NATHANSON & POMMETT, P.C.,

Baltimore, Maryland, for Appellant. Allen F. Loucks, United States

Attorney, George L. Russell, III, Assistant United States Attorney,

Baltimore, Maryland, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
- 2 -

PER CURIAM:

Following a jury trial, Olen Tyrone Smith was convicted

of possession with intent to distribute phentermine, in violation

of 21 U.S.C. § 841(a)(1) (2000), and interference with commerce by

threats or violence, in violation of 18 U.S.C. § 1951(a) (2000).

The district court sentenced Smith under the federal sentencing

guidelines to 36 months incarceration on the § 841(a) conviction

and a concurrent 71 months in prison for the § 1951(a) offense.

The court also ordered Smith to pay restitution in the amount of

$33,500. On appeal, Smith asserts that the district court erred by

refusing to give his requested jury instructions and also erred in

determining his sentence. For the reasons that follow, we affirm

Smith’s convictions, but vacate and remand for resentencing.

Smith was employed by Doctor Robert Keenan, who owned the

Elite Weight Management Center in Towson, Maryland. As part of

weight loss programs, physicians prescribe phentermine, a mild form

of amphetamine, to their patients as an appetite suppressant.

Dr. Keenan was registered with the Attorney General’s Office and

the Drug Enforcement Administration under 21 U.S.C. § 822 (2000),

and authorized to possess and prescribe phentermine, which is a

Schedule IV controlled substance.

Dr. Keenan owned an encapsulating machine, which was used

to create phentermine gelatin capsules from bulk phentermine. As

part of his job, Smith would take bulk phentermine from
- 3 -

Dr. Keenan’s office in Towson to Alpha Bio-Science Center in

Baltimore City, where the encapsulating machine was kept. There,

Smith would encapsulate the phentermine with the assistance of

Robin Williams, the manager of Alpha Bio-Science.

At some point, Smith began to encapsulate phentermine for

another doctor, Dr. Strowhouer, using Dr. Keenan’s machine without

his authorization. Dr. Ladden, an employee of Dr. Strowhouer,

traveled from Media, Pennsylvania, to Baltimore City with bulk

phentermine to be encapsulated. Smith performed the encapsulation

of phentermine for Dr. Strowhouer on five occasions.

Dr. Keenan discovered that Smith was using his machine to

encapsulate phentermine for Dr. Strowhouer without his consent and

confronted Smith. As retaliation, Dr. Keenan instructed Smith to

“get their next batch.”

On December 19, 2002, Dr. Ladden brought five kilograms

of bulk phentermine to Alpha Bio-Science to be manufactured into

capsules. Smith performed the encapsulation and Dr. Ladden bottled

the resulting 167,000 phentermine capsules into labeled bottles.

He placed the bottles into cardboard boxes.

Smith and his cousin picked up the boxes and carried them

outside to the parking lot. Dr. Ladden testified that he believed

that Smith was taking the phentermine to Dr. Ladden’s car.

Instead, Smith and his cousin placed the boxes in Smith’s vehicle.

Williams yelled to Smith, telling him, “that’s not where
- 4 -

they go.” Smith responded with a demand for more money. Williams

put his hands on Smith to stop him, and Smith pushed him with a box

back though the doorway and into some steel drums.

Dr. Ladden testified that Smith’s cousin was standing

near Smith’s car and had his hand in his coat pocket as if he had

a gun. Once the boxes were loaded, Smith’s cousin left Alpha BioScience and took the pills to Smith’s house, where they remained in

Smith’s car until the next day when Smith delivered them to Dr.

Keenan. Dr. Keenan paid Smith $5000 for the capsules.

Smith contends that the district court erred in its

instructions to the jury as to the exception in 21 U.S.C. § 822(c),

for possession of a controlled substance in the course of

employment by an employee of a person authorized and registered to

possess such substance. He also asserts that the court erred in

refusing to instruct the jury as to a required nexus between the

use of force or violence or threat of injury and the taking of

property under § 1951. This court’s review of jury instructions is

for an abuse of discretion. United States v. Patterson, 150 F.3d

382, 387-88 (4th Cir. 1998); United States v. Brooks, 928 F.2d

1403, 1408 (4th Cir. 1991). The district court’s instructions will

be upheld “provided the instructions, taken as a whole, adequately

state the controlling law.” Teague v. Bakker, 35 F.3d 978, 985

(4th Cir. 1994).
- 5 -

Section 822 requires persons who manufacture, distribute,

or dispense any controlled substance to obtain a registration and

authorization from the Attorney General. 21 U.S.C. § 822(a), (b).

An exception to the registration requirements provides that “[a]n

agent or employee of any registered manufacturer, distributor, or

dispenser of any controlled substance [may lawfully possess a

controlled substance] if such agent or employee is acting in the

usual course of his business or employment.” 21 U.S.C. § 822(c).

The instruction given by the court explained this

exception and summarized:

If you find that Mr. Smith, one, was an agent

or employee of a person registered under the

act at the time of his possession, and, two,

that he was acting in the course of his

employment for that registered person, and,

three, that his conduct was in furtherance of

the usual course of the registrant’s lawful

professional practice, then you must find the

defendant not guilty of count one of the

indictment.

Smith contends that the court erred in adding the third

requirement—that the conduct needed to be “in furtherance of the

usual course of the registrant’s lawful professional practice” in

order for the jury to find that Smith’s possession of the

phentermine was lawful under § 822. He argues that his theory of

defense was that he was employed by Dr. Keenan and acting pursuant

to his instructions when he took the phentermine capsules from

Dr. Strowhouer. He asserts that he was therefore lawfully in

possession of the controlled substance and cannot be convicted of
- 6 -

possession with intent to distribute under 21 U.S.C. § 841(a). See

21 U.S.C. § 822(c).

By adding the requirement that Smith’s “conduct was in

furtherance of the usual course of the registrant’s lawful

professional practice” in order that the jury find him not guilty,

Smith contends that the court misstated the law and allowed the

jury to convict him even if he did not know that Dr. Keenan’s

instructions and directions were unlawful and even if he believed

that he was acting “in the usual course of his business or

employment.” See United States v. Lewis, 53 F.3d 29, 32 (4th Cir.

1995).

To qualify under the employee or agent exception to

registration under § 822, the person must be employed in the

“legitimate distribution chain” of the controlled substance. See

United States v. Pruitt, 487 F.2d 1241, 1244 (8th Cir. 1973). Any

possession or distribution outside of the legitimate distribution

chain is unlawful. United States v. Vamos, 797 F.2d 1146, 1151-52

(2d Cir. 1986). Thus, if the possession is not in the “usual

course of the registrant’s lawful professional practice,” then it

is not in the legitimate chain of possession and therefore not

within the § 822(c) exception. See United States v. Hill, 589 F.2d

1344, 1350 (8th Cir. 1979) (holding that mere fact that defendant

was employee of company registered to possess and distribute
- 7 -

controlled substances does not make otherwise unlawful conduct

lawful).

Here, Smith was directed by his employer to take the

phentermine capsules from Dr. Strowhouer without his consent. This

taking resulted in Smith’s possession of the phentermine outside

the legitimate chain of distribution. We find that the district

court’s instructions, “taken as a whole, adequately state the

controlling law.” Teague, 35 F.3d at 985. Thus, the court’s

inclusion of the requirement that the conduct be “in furtherance of

the usual course of the registrant’s lawful professional practice”

does not amount to an abuse of discretion. Id.

Smith also challenges the court’s refusal to instruct the

jury as to a nexus requirement between the taking of the property

and the threat or use of force under 18 U.S.C. § 1951(a). Smith

requested that the court include this instruction:

There must be a nexus between the taking of

the property and the threat or use of force.

The use or threat of force subsequent to the

taking of the goods does not constitute

robbery.

In proposing this instruction, Smith cited United States v. Smith,

156 F.3d 1046, 1056 (10th Cir. 1998), in which the Tenth Circuit

held that a threat or force or injury that occurred in the escape,

rather than during the taking of the property, was insufficient to

show that the taking was accomplished by means of force or threats.

Id. at 1056.
- 8 -

The court did not give this instruction, but instructed

the jury that “[r]obbery is the unlawful taking or obtaining of

personal property of another against his will by means of actual or

threatened force, violence, or fear of injury immediately or in the

future to person or property.” The court also explained that the

taking of the property must be “by means of actual or threatened

force, violence, or fear of injury.” The court added, “[a]s I have

instructed you, you must determine whether the defendant knowingly

and willfully threatened to use force, violence or fear to

unlawfully obtain the property.”

Smith asserts that any force or injury that occurred in

this case occurred in the escape, rather than during the taking of

the property, and thus the evidence was insufficient to show that

the taking was accomplished by means of force or violence. See

Smith, 156 F.3d at 1056. We find that the court’s instructions, as

a whole, adequately stated the controlling law. See Teague, 35

F.3d at 985. Smith’s contention that the jury could have found

that he pushed Williams after the taking of the property, is belied

by Smith’s own testimony. Notably, Smith testified that he pushed

Williams while he was in the act of placing the boxes of

phentermine capsules in his vehicle:

I loaded the other two [boxes] into the

truck. As I was putting them down, Robin

Williams grabbed me on my shoulder. 

Q. And what, if anything, did you then do?
- 9 -

A. I told Robin to get his hands off of me

and that if I have got to - - If I have

to turn around, it’s going to be

problems.

Robin Williams still grabbed my shoulder

and said, “No. What are you doing. You

can’t do this.” And then, from there, I

proceeded to turn around, and I shoved

him.

Additionally, Smith admits, in his appeal brief, that he “pushed

[Williams] with a box back through the doorway into some steel

drums.” (Appellant’s Br. at 6). In light of these admissions, we

conclude that the requested instruction was not required by the

evidence. Thus, we find that the district court’s refusal to give

Smith’s nexus instruction was not an abuse of discretion. See

Teague, 35 F.3d at 985. Accordingly, we affirm Smith’s

convictions.

Citing United States v. Booker, 125 S. Ct. 738 (2005),

Smith argues for the first time on appeal that his sentence is

unconstitutional because it was based on facts that were neither

charged in the indictment nor found by the jury beyond a reasonable

doubt. In Booker, the Supreme Court held that the federal

sentencing guidelines’ mandatory scheme—which provides for

sentencing enhancements based on facts found by the court—violated

the Sixth Amendment. Id. at 746 (Stevens, J., opinion of the

Court). The Court remedied the constitutional violation by making

the guidelines advisory through the removal of two statutory

provisions that had rendered them mandatory. Id. at 746 (Stevens,
1As we noted in Hughes, 401 F.3d at 545 n.4, “[w]e of course

offer no criticism of the district judge, who followed the law and

procedure in effect at the time” of Smith’s sentencing. See

generally Johnson v. United States, 520 U.S. 461, 468 (1997)

(stating that an error is “plain” if “the law at the time of trial

was settled and clearly contrary to the law at the time of

appeal”).

2

Although the Sentencing Guidelines are no longer mandatory,

Booker makes clear that a sentencing court must still “consult

[the] Guidelines and take them into account when sentencing.” 125

S. Ct. at 767. On remand, the district court should first

determine the appropriate sentencing range under the Guidelines,

making all factual findings appropriate for that determination.

Hughes, 401 F.3d at 546. The court should consider this sentencing

range along with the other factors described in 18 U.S.C. § 3553(a)

and then impose a sentence. Id. If that sentence falls outside

the Guidelines range, the court should explain its reasons for the

departure as required by 18 U.S.C. § 3553(c)(2). Id. The sentence

must be “within the statutorily prescribed range and . . .

reasonable.” Id. at 547.

- 10 -

J., opinion of the court); id. at 756-57 (Breyer, J., opinion of

the Court). In United States v. Hughes, 401 F.3d 540 (4th Cir.

2005), this court held that a sentence enhanced based on facts

found by the court, rather than upon facts found by the jury or

admitted by the defendant, constitutes plain error that affects the

defendant’s substantial rights and warrants reversal. Id. at 547-

48 (citing United States v. Olano, 507 U.S. 725, 731-32 (1993)).

In light of Booker and Hughes, we find that the district

court plainly erred in imposing a sentence under the federal

sentencing guidelines as they existed prior to Booker.1 Therefore,

although we affirm Smith’s convictions, we vacate his sentence and

remand for proceedings consistent with Hughes.2 Id. at 546 (citing

Booker 125 S. Ct. at 764-65, 767 (Breyer, J., opinion of the
- 11 -

Court)). We dispense with oral argument because the facts and

legal contentions are adequately presented in the materials before

the court and argument would not aid the decisional process.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED