United States v. Kelly
| Decision Date | 30 October 2017 |
| Docket Number | No. 16-10460.,16-10460. |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Micah Joel Ahkeem Iverson KELLY, AKA Iverson Kelly Micah Johel Ahkeem, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Erica J. Choi (argued), Assistant Federal Public Defender; Rene L. Vallardes, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Defendant-Appellant.
Nancy M. Olson (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Steven W. Myhre, Acting United States Attorney; United States Attorney's Office, Las Vegas, Nevada; for Plaintiff-Appellee.
Before: Ronald M. Gould, Richard C. Tallman, and Paul J. Watford, Circuit Judges.
Defendant-Appellant Micah Joel Ahkeem Iverson Kelly ("Kelly") challenges the district court's denial of his motion to dismiss the indictment charging him with distributing so-called "designer drugs." Kelly entered a conditional plea of guilty to selling and possessing with the intent to sell over 446 grams of ethylone under the street name "Ecstasy." On appeal, Kelly argues he preserved the following issues: (1) the Drug Enforcement Administration ("DEA") violated the non-delegation doctrine by failing to comply with the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b) in temporarily scheduling ethylone; (2) DEA violated due process by failing to provide adequate notice that ethylone was a controlled substance; (3) the rule of lenity applies because § 811(h) is ambiguous as to whether DEA may temporarily schedule unnamed isomers; (4) DEA's temporary scheduling of ethylone is not entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ; and (5) the district court erred in finding that his criminal history category was V, instead of IV, in violation of the Sentencing Guidelines. We have jurisdiction under 28 U.S.C. § 1291 and we affirm as to the first four issues and dismiss as to the last, which we find barred by his partial appellate waiver.
Congress enacted the Controlled Substances Act ("CSA") as part of the Comprehensive Drug Abuse Prevention and Control Act of 1970 to restrict the illegal trafficking of various substances found to pose a danger to the health and general welfare of the nation. Pub. L. No. 91-513, § 101(2), 84 Stat. 1242 (codified at 21 U.S.C. § 801(2) ).1 The CSA makes it unlawful to knowingly manufacture, distribute, or possess any controlled substance except in a manner authorized by the CSA. §§ 841(a)(1), 844(a). The CSA categorizes all controlled substances into five schedules. § 812.2 The initial schedules established by Congress are found at 21 U.S.C. § 812(c), and the current schedules are published in 21 C.F.R. Part 1308. "Violations involving schedule I substances carry the most severe penalties, as these substances are believed to pose the most serious threat to public safety." Touby v. United States , 500 U.S. 160, 162, 111 S.Ct. 1752, 114 L.Ed.2d 219 (1991).
The CSA authorizes the Attorney General to add, remove, or transfer substances to, from, or between schedules. § 811. The Attorney General has delegated this authority to the Administrator of the DEA, who in turn has delegated it to the Deputy Administrator. 28 C.F.R. § 0.100(b). "When adding a substance to a schedule, the [DEA] must follow specified procedures." Touby , 500 U.S. at 162, 111 S.Ct. 1752. The DEA may add a drug to a schedule in one of two ways: permanently or temporarily.
To permanently schedule a drug, the DEA first must obtain a scientific and medical evaluation of the drug and a recommendation as to whether it should be controlled from the Secretary of Health and Human Services ("HHS"). § 811(b). The DEA may not schedule the drug if the Secretary recommends against it. Id. Second, the DEA must consider eight statutory factors, including the drug's actual or relative potential for abuse, scientific evidence of its pharmacological effect, the state of current scientific knowledge regarding the drug, the drug's psychic or physiological dependence liability, and whether it is an immediate precursor of a drug that is already controlled. § 811(c).
If the DEA wants to place the drug into Schedule I, it must also find that the drug has a high potential for abuse, no currently accepted medical use in treatment, and no accepted safe use under medical supervision.
§ 812(b)(1).3 The DEA must then comply with the formal rulemaking provisions of the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 556 – 57. § 811(a). Lastly, it must issue a final rule adding the drug to 21 C.F.R. § 1308.11, which contains the current list of Schedule I substances. Id. This final rule, which concludes the permanent scheduling process, is subject to judicial review. § 877.
Because of these procedural requirements, it often takes six to twelve months for the DEA to permanently schedule a new drug after the DEA identifies it. Touby , 500 U.S. at 163, 111 S.Ct. 1752. This delay produced predictable results. "Drug traffickers were able to take advantage of this time gap by designing drugs that were similar in pharmacological effect to scheduled substances but differed slightly in chemical composition, so that existing schedules did not apply to them." Id. "These ‘designer drugs' were developed and widely marketed long before the Government was able to schedule them and initiate prosecutions." Id.
To combat the designer drug problem and reduce the inherent regulatory delay, Congress amended the CSA in 1984 to create an expedited procedure by which the DEA can temporarily schedule a new drug 30 days after identifying it if doing so is "necessary to avoid an imminent hazard to the public safety." § 811(h)(1) ; see Touby , 500 U.S. at 163, 111 S.Ct. 1752. A temporarily scheduled drug may only be placed into Schedule I, and only if the Secretary has not approved it for sale or exempted it for research under the Food, Drug, and Cosmetic Act ("FDCA"), 21 U.S.C. § 355. Id. Temporary scheduling under § 811(h) allows the DEA "to bypass, for a limited time, several of the requirements for permanent scheduling." Touby , 500 U.S. at 163, 111 S.Ct. 1752.
To find that a drug poses an imminent hazard to public safety justifying temporary scheduling, the DEA must consider only three of the eight factors required for permanent scheduling: (1) the drug's history and current pattern of abuse; (2) the scope, duration, and significance of the abuse; and (3) what, if any, risk it poses to the public health. § 811(c)(4)–(6), (h)(3). In considering these factors, the DEA must consider the drug's "actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution." § 811(h)(3). In addition, the DEA must find that it has a high potential for abuse, no currently accepted medical use in treatment, and no accepted safe use under medical supervision. § 812(b)(1).
Rather than comply with the APA formal rulemaking provisions attending permanent scheduling, the DEA must provide only 30-days' notice of the proposed temporary scheduling in the Federal Register. § 811(h)(1)(A). The DEA must also transmit to the Secretary a 30-days' notice of its intent to temporarily schedule the drug, and it must consider any comments the Secretary submits in response. § 811(h)(1)(B), (h)(4). However, unlike permanent scheduling, the Secretary's prior approval of the temporary scheduling is not required. Touby , 500 U.S. at 163, 111 S.Ct. 1752. Lastly, the DEA must issue a final order adding the drug to 21 C.F.R. § 1308.11(h). § 811(h)(1). The temporary scheduling order remains valid for two years, during which time the DEA presumably will initiate permanent scheduling proceedings, in which case the order may be extended for an additional year. § 811(h)(2). A temporary scheduling order is not subject to judicial review, except (as here) when challenged by a criminal defendant in defense to prosecution. § 811(h)(6) ; Touby , 500 U.S. at 168, 111 S.Ct. 1752.
If the drug is later permanently scheduled, it is removed from § 1308.11(h) and added to § 1308.11(b) – (g), depending on whether it is designated as an opiate, opium derivative, hallucinogenic substance, depressant, stimulant, or cannabimimetic agent. See § 811(h)(5).
On November 7, 2013, the DEA notified the Secretary by letter of its intent to temporarily schedule ten synthetic cathinones, including butylone, because doing so was necessary to avoid an imminent hazard to the public safety. Synthetic cathinones are recreational drugs popular with some youth and young adults in the United States. They produce pharmacological effects substantially similar to MDMA, cathinone, methcathinone, amphetamine
, and methamphetamine. Synthetic cathinones are commonly marketed on the street as "Ecstasy" or "bath salts," sold in the form of tablets and powders, and ingested by swallowing or snorting.
The DEA's letter to the Secretary did not mention the ten synthetic cathinones' isomers4 or salts. On December 4, 2013, the Secretary advised the DEA that there were no investigational or approved new drug applications for the ten synthetic cathinones and that HHS had no objection to their temporary placement in Schedule I. On January 28, 2014, the DEA published in the Federal Register a Notice of its intent to temporarily schedule the ten synthetic cathinones, along with their "optical, positional, and geometric isomers, salts and salts of isomers." On March 7, 2014, the DEA issued a final Order temporarily adding the ten synthetic cathinones to Schedule I at § 1308.11(h)(19)–(28). As relevant here, the Order temporarily added "[b]utylone, its optical, positional, and geometric isomers, salts and salts of isomers" to Schedule I at § 1308.11(h)(22).5
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