United States v. Ketchen
877 F.3d 429
| 1st Cir. | 2017Background
- Ketchen sold MDPV (a synthetic cathinone) from his Bangor, Maine residence, was arrested in Nov. 2011 with 1,110.5 g of MDPV and other indicia of distribution. He admitted awareness that the drug was illegal by the time of later sales.
- Indictment charged conspiracy to distribute and maintaining a drug-involved residence, alleging sales both before Oct. 21, 2011 (as a Controlled Substance Analogue under the Analogue Act) and after that date (after MDPV was temporarily placed in Schedule I).
- Ketchen pled guilty to both counts on May 7, 2014. After the plea but before sentencing, the Supreme Court decided McFadden v. United States (Jun. 2015), clarifying the scienter required under the Analogue Act.
- Twelve days after McFadden, Ketchen moved to withdraw his guilty plea, arguing his plea was not knowing/voluntary because he was not apprised that the government must prove he knew he was dealing with a controlled substance prior to Oct. 21, 2011.
- The district court denied the motion, finding the plea knowingly and voluntarily covered post-Oct. 21, 2011 conduct under the CSA and that Ketchen raised no colorable innocence claim as to that conduct; the court treated any Analogue-Act issues as sentencing questions.
- At sentencing the court adopted methcathinone (Schedule I) as the Guidelines comparator for MDPV over Ketchen’s proposed pyrovalerone (Schedule V), relying on government expert evidence; Ketchen’s request for a live hearing was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ketchen’s guilty plea was involuntary because he was not told Analogue Act scienter per McFadden | Ketchen: plea not knowing/voluntary because he wasn’t apprised that gov’t must prove he knew the substance was a controlled substance before Oct. 21, 2011 | Government/District: Rule 11 adequately explained CSA elements; Ketchen admitted post-Oct. 21 conduct and raised no colorable innocence for that period; Analogue-Act questions affect sentencing | Affirmed: plea was knowing and voluntary as to CSA-based post-Oct. 21 conduct; denial of withdrawal not an abuse of discretion |
| Whether the court erred in selecting methcathinone (Schedule I) rather than pyrovalerone (Schedule V) as the Guidelines comparator for MDPV | Ketchen: MDPV is more chemically similar to pyrovalerone, so Schedule V comparator appropriate | Government: experts showed chemical and pharmacological similarity to methcathinone; defendant failed to show CNS-effect similarity for pyrovalerone | Affirmed: no clear error in choosing methcathinone; district court reasonably preferred government experts |
| Whether the sentencing court abused discretion by refusing an evidentiary (live) hearing on comparator choice | Ketchen: live testimony needed to resolve competing expert opinions | Government/District: record and written materials were sufficient; live testimony unnecessary | Affirmed: denial of evidentiary hearing not an abuse of discretion |
Key Cases Cited
- McFadden v. United States, 135 S. Ct. 2298 (2015) (holding government must prove defendant knew he was dealing with a controlled substance under §841(a)(1), even for analogues)
- Tollett v. Henderson, 411 U.S. 258 (1973) (guilty plea waives non-jurisdictional pre-plea errors)
- United States v. Cotton, 535 U.S. 625 (2002) (defects in indictment are forfeited by unconditional guilty plea)
- United States v. Giggey, 867 F.3d 236 (1st Cir. 2017) (standard of review and deference for comparator selection in analogue cases)
- United States v. Gates, 709 F.3d 58 (1st Cir. 2013) (Rule 11 inquiry objective: ensure plea is voluntary, intelligent, and informed)