                                    UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                      No. 17-4454


UNITED STATES OF AMERICA,

                    Plaintiff - Appellee,

             v.

JUSTIN LARSON,

                    Defendant - Appellant.



Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paula Xinis, District Judge. (8:16-cr-00125-PX-1)


Submitted: June 27, 2018                                     Decided: September 4, 2018


Before WYNN and DIAZ, Circuit Judges, and TRAXLER, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


Marta K. Kahn, THE LAW OFFICE OF MARTA K. KAHN, LLC, Baltimore, Maryland,
for Appellant. Stephen M. Schenning, Acting United States Attorney, Kelly O. Hayes,
Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.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

       A jury convicted Justin Larson of eight offenses related to his possession with

intent to distribute and distribution of controlled substances and controlled substance

analogues, in violation of 21 U.S.C. §§ 813, 841, 846 (2012). One of the offenses was

the distribution of a controlled substance analogue resulting in death, in violation of 21

U.S.C. §§ 813, 841(a)(1), (b)(1)(C).        The district court sentenced Larson to life

imprisonment for the distribution resulting in death conviction and concurrent terms of 30

years’ imprisonment for the other seven convictions. Larson now appeals, arguing that

the district court plainly erred by admitting certain expert opinion testimony, that the

Controlled Substance Analogue Enforcement Act of 1986 (“Analogue Act”), 21 U.S.C.

§§ 802(32)(A), 813 (2012), is unconstitutionally vague, and that the Government failed to

introduce sufficient evidence to support his conviction for possession with intent to

distribute a controlled substance analogue, specifically furanyl fentanyl (“Count 9”).

Finding no merit in these contentions, we affirm.

       Because Larson failed to raise in the district court the first two arguments on

appeal, we review those issues for plain error only. To establish plain error, Larson must

demonstrate that (1) the district court committed an error; (2) the error was plain; (3) the

error affected his substantial rights; and (4) the error “seriously affect[s] the fairness,

integrity or public reputation of judicial proceedings.” Molina-Martinez v. United States,

136 S. Ct. 1338, 1343 (2016) (internal quotation marks omitted). An error is plain if it is

“clear or obvious,” id., under “the settled law of the Supreme Court or this circuit . . . at



                                             2
the time of appellate consideration,” United States v. White, 836 F.3d 437, 447 (4th Cir.

2016) (internal quotation marks omitted).

      Larson first contends that the district court plainly erred by admitting expert

opinion testimony concerning the chemical structure similarities of fentanyl and both

acetyl fentanyl and furanyl fentanyl. Even assuming that the district court erred in

admitting the expert’s testimony, we conclude that any error is not plain. Larson fails to

cite a single decision precluding the Government from admitting similar expert testimony

on the substantial similarity of chemical structures in an Analogue Act prosecution.

Larson similarly fails to cite any decision holding that the two-dimensional diagram

comparison method the expert witness utilized is unreliable and inadmissible under Fed.

R. Evid. 702, and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

      In contrast, we have approvingly cited similar expert witness testimony to reject a

defendant’s challenge to the sufficiency of the evidence supporting his conviction under

the Analogue Act. United States v. McFadden (hereinafter, “McFadden I”), 753 F.3d

432, 438, 444-46 (4th Cir. 2014), vacated on other grounds and remanded, 135 S. Ct.

2298 (2015); see also United States v. Klecker, 348 F.3d 69, 71-73 (4th Cir. 2003),

overruled on other grounds by McFadden v. United States, 135 S. Ct. 2298, 2306 (2015).

In addition, other circuits have held similar expert opinion testimony admissible. See

United States v. Carlson, 810 F.3d 544, 549, 553 (8th Cir. 2016); United States v. Brown,




                                            3
415 F.3d 1257, 1267-68 (11th Cir. 2005). Against this backdrop, we conclude that

Larson has not established plain error in the admission of the expert’s opinion testimony. 1

       Larson next argues that the Analogue Act is unconstitutionally vague in light of

Johnson v. United States, 135 S. Ct. 2551, 2563 (2015) (holding that residual clause of

Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) (2012), is

unconstitutionally vague). Before the Supreme Court decided Johnson, we twice rejected

similar vagueness challenges to the Analogue Act. McFadden I, 753 F.3d at 439-40;

Klecker, 348 F.3d at 71-72. Those cases “only consider[ed] the ‘as applied’ challenge” to

the act because, we said, “[f]acial vagueness challenges to criminal statutes are allowed

only when the statute implicates First Amendment rights.” Klecker, 348 F.3d at 71;

McFadden I, 753 F.3d at 439.

       After Johnson, at least, we know that a statute that doesn’t raise First Amendment

problems may nevertheless be impermissibly vague on due process grounds. Compare

Johnson, 135 S.Ct. at 2556–57 (the government violates due process when it “tak[es]


       1
         Insofar as Larson contends that the expert’s testimony was confusing based on
her use of certain analogies, we find Larson’s argument unconvincing. The expert’s
analogies did not suggest that the substances (fentanyl, acetyl fentanyl, and furanyl
fentanyl) functioned in the same way because they have similar chemical structures.
Rather, the expert’s testimony concerned the structures of the substances themselves, not
their functioning. In any event, even if the expert’s use of analogies was plainly
objectionable, we conclude that particular testimony did not affect the outcome of
Larson’s trial given the expert’s other testimony and the introduction of the chemical
structure diagrams. See United States v. Stone, 866 F.3d 219, 225 (4th Cir. 2017)
(recognizing that, in ordinary case, error affects defendant’s substantial rights only if
defendant shows that “it affected the outcome of the district court proceedings” (internal
quotation marks omitted)).


                                             4
away someone’s life, liberty, or property under a criminal law so vague that it fails to

give ordinary people fair notice of the conduct it punishes, or so standardless that it

invites arbitrary enforcement”) with id. at 2580–81 (Alito, J., dissenting) (arguing that the

majority decision “flatly contravene[d]” the rule that “vagueness challenges to statutes

which do not involve First Amendment freedoms must be examined on an as-applied

basis” (internal quotation marks omitted)). So we haven’t yet had the opportunity to

answer the question of whether the Analogue Act may be facially void for vagueness in

Johnson’s wake.

       But Johnson didn’t address the constitutionality of the Analogue Act, and the

Supreme Court recognized in that case that statutes using undefined, “qualitative

standard[s],” such as the Analogue Act, may pass constitutional muster. 135 S. Ct. at

2561; see also Sessions v. Dimaya, 138 S. Ct. 1204, 1214 (2018). In contrast to the

ACCA’s now-defunct residual clause, which required judges to apply a qualitative

standard “to a judicially imagined ordinary case of a crime,” Johnson, 135 S. Ct. at 2557

(internal quotation marks omitted), the Analogue Act requires a fact finder to apply a

qualitative analysis to the real-world chemical structures of alleged analogues and

identified controlled substances. See also McFadden, 135 S. Ct. at 2307 (recognizing

that Analogue Act’s scienter requirement “alleviates vagueness concerns, narrows the

scope of the [Act’s] prohibition, and limits prosecutorial discretion”) (alterations and

internal quotation marks omitted).

       Moreover, this circuit hasn’t said (and nor has any other) that the Analogue Act is

constitutionally infirm. Whether the Act is on its face sufficiently definite to “provide a

                                             5
person of ordinary intelligence fair notice of what is prohibited,” United States v.

Williams, 553 U.S. 285, 304 (2008), may be a question worthy of consideration in an

appropriate case. See Klecker, 348 F.3d at 72 (recognizing that “experts can disagree

about whether two molecules have chemical structures that are substantially similar”);

United States v. Makkar, 810 F.3d 1139, 1142–43 (10th Cir. 2015) (Gorsuch, J.) (“It’s an

open question, after all, what exactly it means for chemicals to have a ‘substantially

similar’ chemical structure—or effect.”).        But we are obliged to review Larson’s

unpreserved challenge to the Analogue Act for plain error. And because “the settled law

of the Supreme Court or this circuit” doesn’t establish that an error has occurred, we

reject Larson’s challenge. United States v. Carthorne, 726 F.3d 503, 516 (4th Cir. 2013).

      Finally, Larson challenges the sufficiency of the evidence supporting his

conviction on Count 9.       Specifically, Larson argues that the Government failed to

introduce evidence establishing that furanyl fentanyl meets the statutory definition of a

“controlled substance analogue.” 2 We review de novo “a challenge to the district court’s



      2
          A “controlled substance analogue” is a substance:

      (i) the chemical structure of which is substantially similar to the chemical
      structure of a controlled substance in schedule I or II;

      (ii) which has a stimulant, depressant, or hallucinogenic effect on the
      central nervous system that is substantially similar to or greater than the
      stimulant, depressant, or hallucinogenic effect on the central nervous
      system of a controlled substance in schedule I or II; or

      (iii) with respect to a particular person, which such person represents or
      intends to have a stimulant, depressant, or hallucinogenic effect on the
      central nervous system that is substantially similar to or greater than the
(Continued)
                                             6
denial of a motion for acquittal based on sufficiency of the evidence.” United States v.

Wolf, 860 F.3d 175, 194 (4th Cir. 2017). “The standard for reversing a jury verdict of

guilty is a high one: the Court does so only where the prosecution’s failure is clear.”

United States v. Perry, 757 F.3d 166, 175 (4th Cir. 2014) (internal quotation marks

omitted). “The jury’s verdict must be upheld on appeal if there is substantial evidence in

the record to support it, where substantial evidence is evidence that a reasonable finder of

fact could accept as adequate and sufficient to support a conclusion of a defendant’s guilt

beyond a reasonable doubt.” Id. (emphasis and internal quotation marks omitted). “In

determining whether there is substantial evidence to support a verdict, we defer to the

jury’s determinations of credibility and resolutions of conflicts in the evidence, as they

are within the sole province of the jury and are not susceptible to judicial review.”

United States v. Louthian, 756 F.3d 295, 303 (4th Cir. 2014) (internal quotation marks

omitted).

       “[V]iewing the evidence . . . in the light most favorable to the Government,”

Perry, 757 F.3d at 175, we conclude that substantial evidence supports Larson’s

conviction on Count 9. See United States v. McFadden (hereinafter, “McFadden II”),

823 F.3d 217, 223 (4th Cir. 2016) (describing elements of offense). Regarding furanyl

fentanyl’s chemical structure, the Government’s expert witness testified that furanyl



       stimulant, depressant, or hallucinogenic effect on the central nervous
       system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A).


                                             7
fentanyl has a substantially similar chemical structure to fentanyl, a Schedule II

controlled substance, 21 C.F.R. § 1308.12(c)(9) (2018). The Government also introduced

chemical structure diagrams supporting the expert’s testimony. As to whether furanyl

fentanyl has a substantially similar “actual, intended, or claimed physiological effect” to

that of a Schedule I or II controlled substance, McFadden II, 823 F.3d at 223, a witness

who purchased furanyl fentanyl from Larson testified that the substance is a depressant

that provides a high similar to heroin, a Schedule I controlled substance, 21 C.F.R.

§ 1308.11(c)(11) (2018). According to that witness, Larson also represented that furanyl

fentanyl provided the same high as acetyl fentanyl, which was classified as a Schedule I

controlled substance by that time, 21 C.F.R. § 1308.11(b)(3) (2018). Moreover, after

Larson’s arrest, he wrote a letter to a potential furanyl fentanyl buyer describing the

substance as “ten times stronger than heroin” (J.A. 459), 3 which established that Larson

was familiar with the intended physiological effects of the substance. We therefore

conclude that substantial evidence supports Larson’s conviction on Count 9.

       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



      3
          “J.A” refers to the joint appendix filed by the parties in this appeal.


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