## Facts

- Orlando Birbragher co-owned and operated Pharmacom International Corp., an Internet pharmacy business that sold prescription drugs, including Schedule III and IV controlled substances, through websites such as “buymeds.com.”
- Customers ordered drugs online by completing a short health questionnaire and submitting payment information.
- Pharmacom did not verify customer identities and did not require medical records.
- Pharmacom used physicians who approved orders without in-person examinations and, in most cases, without reviewing medical records.
- Contracted pharmacies filled the orders; Pharmacom paid millions of dollars to the physicians and pharmacies involved.
- A federal grand jury returned a 31-count indictment charging, among other offenses, conspiracy to distribute controlled substances and conspiracy to launder proceeds of the drug conspiracy.
- Birbragher moved to dismiss, arguing the Controlled Substances Act (CSA) was unconstitutionally vague as applied; the district court denied the motion.
- Birbragher entered a conditional guilty plea to drug-distribution conspiracy and money-laundering conspiracy, received a 35-month prison sentence and forfeiture, and appealed both the denial of dismissal and the sentence (despite an appeal waiver).

## Issues

1. Whether the CSA is unconstitutionally vague under the Fifth Amendment Due Process Clause as applied to operating an Internet pharmacy that dispensed controlled substances based on online questionnaires and cursory physician approval without an in-person examination.
2. Whether an appeal-waiver provision in a plea agreement bars Birbragher’s sentencing challenges on appeal.

## Decision

- The court affirmed the denial of the motion to dismiss, holding the CSA was not unconstitutionally vague as applied to the charged conduct.
- The court enforced the plea-agreement appeal waiver and dismissed the appeal of Birbragher’s sentence.

## Legal Principles

- A criminal statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice of prohibited conduct or is so standardless that it invites seriously discriminatory enforcement.
- When First Amendment concerns are not implicated, vagueness is assessed as applied to the defendant’s conduct, not through hypothetical borderline scenarios.
- The CSA prohibits knowingly or intentionally distributing or dispensing controlled substances except as authorized; authorization for prescriptions requires issuance for a legitimate medical purpose in the usual course of professional practice.
- An as-applied vagueness claim fails where the defendant’s alleged conduct falls clearly within the statute’s prohibitions; a defendant cannot rely on uncertainty at the margins to invalidate the statute as applied to plainly proscribed conduct.
- An appellate waiver is enforceable if entered knowingly and voluntarily and if the issues raised fall within the waiver’s scope; when enforceable, it requires dismissal of barred sentencing claims.

## Conclusion

The Eighth Circuit held that the CSA provided adequate notice that distributing controlled substances through an Internet pharmacy model relying on brief online questionnaires and non-exam physician approvals was unauthorized, and it dismissed Birbragher’s sentencing appeal because his plea agreement’s appeal waiver was valid and covered his sentencing challenges.


United States v. Birbragher, 603 F.3d 478 (8th Cir. 2010)