U.S. v. Granberry, No. 89-1974

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtBefore JOHNSON, SMITH, and WIENER; JOHNSON
Citation916 F.2d 1008
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Natalie GRANBERRY, Defendant-Appellant. Summary Calendar.
Decision Date26 October 1990
Docket NumberNo. 89-1974

Page 1008

916 F.2d 1008
UNITED STATES of America, Plaintiff-Appellee,
v.
Natalie GRANBERRY, Defendant-Appellant.
No. 89-1974
Summary Calendar.
United States Court of Appeals,
Fifth Circuit.
Oct. 26, 1990.

Page 1009

Allen Fishburn, Delhomme, Skrepnek & Fishburn, Dallas, Tex., for defendant-appellant.

Paul D. Macaluso, Asst. U.S. Atty., Marvin Collins, U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of Texas.

Before JOHNSON, SMITH, and WIENER, Circuit Judges.

JOHNSON, Circuit Judge:

Natalie Granberry appeals from her conviction for using a communication facility (a telephone) in the illegal distribution of a controlled substance, in violation of 21 U.S.C. Sec. 843(b). Her conviction will be affirmed.

I. FACTS AND PROCEDURAL HISTORY

In October 1989 Natalie Granberry had a telephone conversation with an acquaintance of hers in which she arranged to sell that acquaintance, for $100, 10 tablets of N-Hydroxy-3,4-methylenedioxyamphetamine, a chemical analogue of 3,4-methylenedioxyamphetamine, which is a Schedule I controlled substance. 1 Granberry was indicted on two counts of distribution of an analogue of a controlled substance, in violation of 21 U.S.C. Secs. 813, 841(a)(1). 2 She later pled guilty to one count of violating 21 U.S.C. Sec. 843(b). 3 The district court imposed sentence, and Granberry timely appealed.

Before pleading guilty Granberry moved to dismiss the charges against her on the grounds that Sec. 813, commonly referred to as the analogue statute, was unconstitutional. Granberry contended that Sec. 813 constitutes an impermissible delegation of Congressional power to the Executive branch and that the definition of analogue substances is unconstitutionally vague. The district denied her motion to dismiss the indictment. These constitutional issues are the only issues Granberry raises on appeal.

Page 1010

II. DISCUSSION

Neither of Granberry's constitutional challenges is well taken. Granberry first argues that Sec. 813 constitutes an impermissible delegation of legislative power to an executive agency. In advancing this argument Granberry relies on one case, United States v. Spain, 825 F.2d 1426 (10th Cir.1987), which considered the constitutional implications of the delegation of power to the Attorney General in another drug statute, 21 U.S.C. Sec. 811(h). That statute allows the Attorney General to temporarily place new drugs on the controlled substance schedules pending the completion of the full scheduling process.

Granberry's reliance on Spain is misplaced, for several reasons. First, Spain did not hold Sec. 811(h) unconstitutional; it found it unnecessary to decide the question. 825 F.2d at 1429. Second, whatever concerns the Spain Court expressed about the scope of the delegation of authority in Sec. 811(h) do not apply here. Unlike Sec. 811(h), Sec. 813 does not delegate any authority to the Attorney General. It operates only by reference to the authority already delegated to the Attorney General by the Controlled Substances Act...

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37 practice notes
  • U.S. v. Turcotte, No. 03-2988.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 19, 2005
    ...F.3d 1329, 1338 (11th Cir.2002), in which the Eleventh Circuit expressly declined to decide the issue, and United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990), in which the Fifth Circuit recited the test in the disjunctive without discussion or elaboration. The majority of these ......
  • Commonwealth v. Herman, No. 74 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 25, 2017
    ...See Maj. Op. at 211. Many of these decisions are lacking in persuasive value. The Majority cites 161 A.3d 223United States v. Granberry , 916 F.2d 1008 (5th Cir. 1990), upon which many federal and state courts rely in rejecting vagueness challenges to the "substantially similar" language, i......
  • United States v. Reece, Criminal No. 12–00146.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • July 1, 2013
    ...S.Ct. 1752. 20.United States v. Caudle, 828 F.2d at 1112. 21.21 U.S.C. § 802(32)(A). 22.21 U.S.C. § 813. 23.United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990). 24.Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752. 25.Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752 ......
  • State v. Ross, No. 16CA3771
    • United States
    • United States Court of Appeals (Ohio)
    • December 16, 2017
    ...authority in this matter.").103 N.E.3d 91{¶ 27} In Shalash the court quoted the following excerpt from United States v. Granberry , 916 F.2d 1008, 1010 (5th Cir. 1990) to support its reasoning:[T]he term "controlled substance analogue" in § 813 is clearly and specifically defined, in terms ......
  • Request a trial to view additional results
37 cases
  • U.S. v. Turcotte, No. 03-2988.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • April 19, 2005
    ...F.3d 1329, 1338 (11th Cir.2002), in which the Eleventh Circuit expressly declined to decide the issue, and United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990), in which the Fifth Circuit recited the test in the disjunctive without discussion or elaboration. The majority of these ......
  • Commonwealth v. Herman, No. 74 MAP 2016
    • United States
    • United States State Supreme Court of Pennsylvania
    • May 25, 2017
    ...See Maj. Op. at 211. Many of these decisions are lacking in persuasive value. The Majority cites 161 A.3d 223United States v. Granberry , 916 F.2d 1008 (5th Cir. 1990), upon which many federal and state courts rely in rejecting vagueness challenges to the "substantially similar" language, i......
  • United States v. Reece, Criminal No. 12–00146.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • July 1, 2013
    ...S.Ct. 1752. 20.United States v. Caudle, 828 F.2d at 1112. 21.21 U.S.C. § 802(32)(A). 22.21 U.S.C. § 813. 23.United States v. Granberry, 916 F.2d 1008, 1010 (5th Cir.1990). 24.Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752. 25.Touby v. United States, 500 U.S. at 163, 111 S.Ct. 1752 ......
  • State v. Ross, No. 16CA3771
    • United States
    • United States Court of Appeals (Ohio)
    • December 16, 2017
    ...authority in this matter.").103 N.E.3d 91{¶ 27} In Shalash the court quoted the following excerpt from United States v. Granberry , 916 F.2d 1008, 1010 (5th Cir. 1990) to support its reasoning:[T]he term "controlled substance analogue" in § 813 is clearly and specifically defined, in terms ......
  • Request a trial to view additional results

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