United States v. Hyongchong Kim

63 F. App'x 376

Opinion

MEMORANDUM

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Chris Hyongchyong Kim appeals his jury conviction of conspiracy to distribute pseudoephedrine on the ground that 21 U.S.C. § 841(c)(2) is unconstitutionally vague. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo and affirm. See United States v. Davis, 36 F.3d 1424, 1434 (9th Cir.1994) (constitutionality of a criminal statute is reviewed de novo).

Section 841(c)(2) criminalizes the “knowing” or “intentional” possession or distribution of a listed chemical by a person “knowing, or having reasonable cause to believe, that the listed chemical will be used to manufacture a controlled substance .... ” The evidence at trial demonstrated that Kim had cause to believe that the pseudoephedrine he was purchasing and distributing in large quantity was going to be used in the manufacture of methamphetamine. Because the statute provided Kim with adequate notice that his conduct was criminal, it is not unconstitutionally vague as applied to him. Easyriders Freedom F.I.G.H.T v. Hannigan, 92 F.3d 1486, 1493 (9th Cir.1996) (where a law at issue does not implicate First Amendment rights, it may be challenged for vagueness only as applied); United States v. Hogue, 752 F.2d 1503, 1504 (9th Cir.1985) (a criminal statute is not vague if it provides adequate notice that the defendant’s conduct is prohibited in terms that a reasonable person of ordinary intelligence would understand); United States v. Pruitt, 719 F.2d 975, 977 (9th Cir.1983) (per curiam) (same).

AFFIRMED.

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