                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0125n.06

                                            No. 08-5278
                                                                                           FILED
                           UNITED STATES COURT OF APPEALS                              Feb 24, 2010
                                FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
DANNY COLLINS,                                             )    THE EASTERN DISTRICT OF
                                                           )    KENTUCKY
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: DAUGHTREY, GILMAN, and KETHLEDGE, Circuit Judges.

       KETHLEDGE, Circuit Judge. Danny Collins appeals his conviction and sentence for using

an expired DEA registration number to dispense a controlled substance in violation of 21 U.S.C.

§ 843(a)(2). We affirm.

                                                  I.

       Collins, a licensed dentist, was indicted for 17 counts of using an expired DEA registration

number to prescribe painkilling medication, in violation of 21 U.S.C. § 843(a)(2). After his

arraignment, Collins filed a motion in limine requesting an instruction that the jury could not convict

him if he prescribed the painkillers in good faith. The court denied the motion. Collins thereafter

entered a conditional guilty plea, waiving his right to appeal except as to the court’s denial of his

motion in limine. The district court sentenced him to three years’ probation.
No. 08-5278
United States v. Collins

        This appeal followed.



                                                   II.

        Collins’s sole argument on appeal is that the district court should have agreed to issue the

instruction he requested. “We review for abuse of discretion a district court’s refusal to give

requested jury instructions.” Williams v. Eau Claire Pub. Sch., 397 F.3d 441, 445 (6th Cir. 2005).

A refusal to give requested instructions is reversible error only if: “(1) the omitted instruction is a

correct statement of the law; (2) the instruction is not substantially covered by other delivered

charges; and (3) the failure to give the instruction impairs the requesting party’s theory of the case.”

Id.

        The Comprehensive Drug Abuse Prevention and Control Act of 1970 makes it “unlawful for

any person knowingly or intentionally . . . to use in the course of the . . . distribution, or dispensing

of a controlled substance, . . . a registration number which is fictitious, revoked, suspended, expired,

or issued to another person.” 21 U.S.C. § 843(a)(2). Collins asked the district court to instruct the

jury that it could convict him only if he had prescribed the painkillers “other than in good faith and

in the usual course of a professional practice and in accordance with a standard of medical practice

generally recognized and accepted in the United States.”

        The district court was correct to reject the proposed instruction. Nothing in the text of

§ 843(a)(2) limits the provision to prescriptions made in bad faith or outside the usual course of a

medical practice. The provision instead prohibits “distribution, or dispensing of a controlled

substance” with an expired registration number, period. That courts have approved good-faith

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No. 08-5278
United States v. Collins

instructions for different provisions with different text, see, e.g., United States v. Hughes, 895 F.2d

1135, 1143 n. 11 (6th Cir. 1990) (concerning § 841(a)(1) instructions), does not mean the district

court was free to disregard the plain text of the provision at issue here.

        Most of the cases that Collins cites in support of his argument are inapposite. All but one

of those cases involved § 841(a)(1) charges, which supported the good-faith instruction. The

remaining case—United States v. Carranza, 632 F. Supp. 1030 (S.D.N.Y. 1986)—is unpersuasive.

That case does include dicta that could be read to support Collins’s argument on appeal. To the

extent it is so read, however, the dicta conflicts with the terms of the statute. The terms of the statute

control.

        Collins’s conviction and sentence are affirmed.




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