Background - In 2015 Kelly sold what he and buyers believed was "Ecstasy"; forensic testing later showed the substance was ethylone, a positional isomer of butylone. He was indicted for distributing a Schedule I controlled substance. - In March 2014 the DEA issued a temporary Order placing ten synthetic cathinones, including butylone, and their "optical, positional, and geometric isomers, salts and salts of isomers" into Schedule I under the CSA § 811(h). The DEA’s notice to HHS/Secretary and the Federal Register notice did not name each individual isomer. - Kelly moved to dismiss on grounds that (a) DEA exceeded its authority and violated the non-delegation doctrine by temporarily scheduling unnamed isomers; (b) DEA failed to provide adequate notice; (c) the rule of lenity required construing any ambiguity in his favor; and (d) DEA’s action was arbitrary and capricious. - The district court denied the motion; Kelly pleaded guilty conditionally reserving the right to appeal the denial; he later contested his Guidelines criminal-history category but had waived most sentencing-appeal rights in his plea agreement. - The Ninth Circuit reviewed the statutory and constitutional challenges de novo, affirmed the denial of the motion to dismiss and Kelly’s conviction, and dismissed his sentencing challenge as waived. ### Issues | Issue | Plaintiff's Argument (Kelly) | Defendant's Argument (Government/DEA) | Held | |---|---:|---:|---:| | Whether DEA’s temporary scheduling of unnamed isomers violates the non-delegation doctrine | § 811(h)/§ 812(b) require naming and making findings for each isomer; failure to do so unlawfully delegates legislative power | Statutory text permits findings for a parent substance (e.g., butylone) and inclusion of its isomers; DEA followed statutory limits | Rejected Kelly’s claim; DEA acted within the CSA and did not violate non-delegation | | Whether Kelly had adequate notice that ethylone was controlled | Notice was inadequate because DEA did not identify ethylone by name | DEA’s Federal Register notice expressly listed butylone and its "optical, positional, and geometric isomers," providing constructive notice | Held notice was adequate; due process satisfied | | Whether the rule of lenity applies to require construing § 811(h) against DEA authority to schedule unnamed isomers | Ambiguity in § 811(h) about unnamed isomers entitles defendant to lenity | Text, structure, history, and purpose show Congress authorized scheduling parent substances and their isomers; no grievous ambiguity | Lenity does not apply; statute is not ambiguous as to temporary scheduling of isomers | | Whether Chevron deference and arbitrary-or-capricious review support DEA action; and whether sentencing calculation challenge is preserved | DEA’s order is not entitled to Chevron deference; agency acted arbitrarily; sentencing history-category is IV not V | Statute unambiguously permits temporary scheduling of parent+isomers (Chevron step one); DEA’s findings were reasonable; sentencing challenge waived by plea agreement | Court held Chevron step one resolves the statutory question in government’s favor; DEA action valid; sentencing challenge dismissed as waived | ### Key Cases Cited Touby v. United States, 500 U.S. 160 (1991) (describing CSA scheduling procedures and upholding temporary scheduling framework) Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (two-step framework for judicial review of agency statutory interpretation) Gonzalez v. Oregon, 546 U.S. 243 (2006) (recognizing statutory limits and procedural constraints on agency authority) Grayned v. City of Rockford, 408 U.S. 104 (1972) (due process requires laws provide fair notice of proscribed conduct) Dunn v. United States, 442 U.S. 100 (1979) (law must not force speculation at peril of indictment) Lanzetta v. State of New Jersey, 306 U.S. 451 (1939) (penal statutes must be sufficiently explicit to inform conduct) United States v. Santos, 553 U.S. 507 (2008) (rule of lenity applies only where grievous statutory ambiguity remains) Barber v. Thomas, 560 U.S. 474 (2010) (clarifies application threshold for lenity) United States v. Granderson, 511 U.S. 39 (1994) (lenity applies when text, structure, and history leave unresolved ambiguity) Wilhoit v. United States, 920 F.2d 9 (9th Cir. 1990) (publication in Federal Register constitutes constructive notice)