NOT RECOMMENDED FOR PUBLICATION File Name: 20a0590n.06
Case No. 20

- 3192
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,

v.
MARGARET TEMPONERAS , Defendant

- Appellant

. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO

BEFORE: SUTTON, THAPAR, and READLER , Circuit Judges

. THAPAR, Circuit Judge. D octor Margaret Temponeras was in the business of prescribing pain medication. She prescribed too much, too often, with too little regard for the consequences. That was illegal , and she was convicted of violating federal law. We affirm. Temponeras owned and operated a pain

- management medical practice. Many aspects of her work raise d eyebrows . She prescribed unusually high volumes of addictive painkillers

. Her
p atients paid mo stly in cash. Some traveled long distances every month to see her. Some had track marks on their arms and other signs of drug addiction. When l ocal pharmacies stopped filling her prescriptions , she pressed forward with her own in

- house dispensary

. Her suspect practices led to tragic consequences: I n less than three years , eight of her patients died from drug overdoses

. Temponeras pled guilty to conspiring to distribute a controlled substance outside the usual course of professional practice

. See 21 U.S.C. §§ 841(a)(1) , (b)(1)(C), 846 ; 21 C.F.R.Case No. 20

- 3192 , United States v. Temponeras

- 2

- § 1306.04(a)

. In t he plea agreement , the parties stipulated to a sentence of 36 to 84 months in prison, significantly less than the applicable Guidelines range of 210 to 2 40 months. The district court accepted the plea agreement and sentenced Temponeras to 84 months. This appeal follow ed

. Temponeras provides three reasons we should vacate her sentence . The first is that her conviction is based on an unconstitutional ly vague law

. The other two focus on alleged misconduct by the government at sentencing. S he raised none of the se objections before the district court , so our review is for plain error. Fed. R. Crim. P. 52(b)

. But under any standard of review, we would reach the same result. Vagueness

. The Controlled Substances Act criminalizes the “[un]authorized” distribution or dispensing of controlled substances. 21 U.S.C. § 841(a)(1)

. When a doctor prescribes medication “for a legitimate medical purpose

. . . in the usual course of [her] professional practice,” her actions are authorized. 21 C.F.R. § 1306.04(a) ; see 21 U.S.C. § 829 . Otherwise, she violates the Act. 21 U.S.C. § 841(a)

. Temponeras says that this standard

— a legitimate medical purpose in the usual course of professional practice

— is unconstitutionally vague as applied to her

. See Holder v. Humanitarian Law Project , 561 U.S. 1, 18

– 19 (2010)

. But Temponeras admitted that she was “aware of a high probability” that her prescription practices were neith er for a legitimate medical purpose nor part of the usual course of professional practice ; indeed she “deliberately closed her eyes” to the “obvious

. ” R. 89, Pg. ID 664

– 65

. So she cannot now claim that the law was too vague for her to

“ understand what [was] prohibited

. ” United States v. Krumrei , 258 F.3d 535, 537, 539 (6th Cir. 2001) (citation omitted)

. Prosecutorial Misconduct

. At Temponeras’ s sentencing hearing, the government introduced five exhibits not mentioned in its sentencing memorandum . Temponeras believes thatCase No. 20

- 3192 , United States v. Temponeras

- 3

- this last

- minute introduction violated Rule 32 ’s regulation of sentencing proceedings and the district court’s scheduling order

. See Fed. R. Crim. P. 32(i) . Th ough she fail e d to object before the district court, she asserts now that the violation was so egregious that it constitute d prosecutorial misconduct. One problem with her theory is that a claim of prosecutorial misconduct requires prejudice. United States v. Coker , 514 F.3d 562, 568 (6th Cir. 2008 ) . Temponeras claims she wa s left flat

footed and unprepared to respond to the new exhibits

. But the district court expressly disavowed reliance on the se materials . Indeed, other than to state it was “not focused on the[m],” the court

never acknowledged their existence or contents. R. 107, Pg. ID 791. So the alleged violation left Temponeras no worse off than she was before

. Breach of the Plea Agreement

. Finally, Temponeras contends that the government “flagrant[ly]” breached the terms of the plea agreement by “instruct[ing] the district court” that the agreement precluded consideration of certain mitigating factors. Appellant Br. 22

. But the government said no such thing ; it explained its belief that no mitigating factors warranted an even greater variance from the G uidelines than the agreement already generously provided . R. 107, Pg. ID 789

– 90. N othing in the plea agreement prohibit ed this argument

. See R. 89, Pg. ID 658

– 62. We affirm.