UNITED STATES of America, Plaintiff-Appellee, v. Micah Joel Ahkeem Iverson KELLY, AKA Iverson Kelly Micah Johel Ahkeem, Defendant-Appellant.
No. 16-10460
United States Court of Appeals, Ninth Circuit.
October 30, 2017
874 F.3d 1037
Argued and Submitted September 15, 2017 San Francisco, California
Fourth, even if Officer Kaleas misdescribed the possible results of an inquiry into a Form I-130 petitioner‘s prior filings, his testimony that USCIS will investigate prior petitions that a Form I-130 petitioner discloses is confirmed by agency decisions discussing the fact that a petitioner has filed other Form I-130 petitions on behalf of other spouses. See In re [redacted], 2014 WL 5430813 (DHS) (USCIS Admin. App. Office Oct. 1, 2014); In re [redacted], 2012 WL 8527152 (INS) (USCIS Admin. App. Office Dec. 17, 2012); In re Domingo, 2006 WL 3203422 (BIA) (BIA Sept. 1, 2006). The investigation of prior marriages and Form I-130 petitions is capable of influencing USCIS decisions because it may raise an inference of immigration abuse that leads to the denial of the current petition, even if a prior Form I-130 petition was approved and the marriage never challenged as fraudulent. “What is relevant is what would have ensued from official knowledge of the misrepresented fact.” Hirani, 824 F.3d at 749, quoting Kungys, 485 U.S. at 775, 108 S.Ct. 1537.
For these reasons, we conclude that the evidence at trial was sufficient to establish that Samuels falsely failed to disclose a material fact, whether materiality is an issue of fact or law in a
The judgment of the district court is affirmed.
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.
OPINION
TALLMAN, Circuit Judge:
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
I
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
The CSA authorizes the Attorney General to add, remove, or transfer substances to, from, or between schedules.
A
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“),
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 supervi
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.
B
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,”
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.
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.
If the drug is later permanently scheduled, it is removed from
C
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
II
A
In January 2015, a Nevada drug task force learned that Kelly was selling large quantities of MDMA6, or “Ecstasy,” in the Las Vegas area. An undercover officer arranged to purchase the MDMA from Kelly, and Kelly sold approximately 140 grams of powder to the officer in two separate transactions. During the third transaction, Kelly was arrested possessing another 306 grams. Forensic analysis later revealed that the powder was ethylone, not MDMA. A grand jury indicted Kelly on
It is undisputed here that ethylone is a positional isomer of butylone. An isomer is a molecule with the same chemical formula as another molecule, but its atoms are arranged in a different sequence. For example, butylone and ethylone share the chemical formula C12H15NO3, but they differ in the location of a functional group:
Based on how the atoms are arranged, isomers can be classified as chain, functional, positional, conformational, optical, or geometric. See A Brief Guide to Types of Isomerism in Organic Chemistry, http://www.compoundchem.com/2014/05/22/typesofisomerism/ (last visited July 24, 2017). Not all isomers of a scheduled drug are illegal, however. Thus, Schedule I categorically controls all permanently scheduled drugs’ optical isomers only. An exception exists if the permanently scheduled drug is a hallucinogenic substance listed in
B
On the morning that his trial was set to begin, Kelly moved to dismiss the indictment on the ground that ethylone was not a Schedule I controlled substance. He did not contest for purposes of his motion, and does not contest on appeal, that ethylone is a positional isomer of butylone. He argued, however, that ethylone was not properly scheduled because (1) the DEA failed to comply with
A magistrate judge issued a report and recommendation denying Kelly‘s motion, which the district court adopted in full. The district court found that
C
After his motion to dismiss was denied, Kelly pleaded guilty to all three counts in the indictment under a conditional plea agreement that reserved his right to bring this appeal of the district court‘s denial of his motion to dismiss. In support of his guilty plea, Kelly admitted to selling and possessing with the intent to sell over 446 grams of ethylone. He also agreed that the district court would determine his criminal history category under the Sentencing Guidelines. He stipulated to a recommended sentence of 57 months “so long as the Criminal History Category [was] IV or less.” If the “Criminal History Category [was] V or greater,” he stipulated that his recommended sentence would be at the “low-end of the Sentencing Guidelines range determined by the Court.” In addition, Kelly expressly waived his “right to appeal any sentence imposed within or below the applicable Sentencing Guideline range as determined by the Court,” as well as “the manner in which the Court determined that sentence.”
At sentencing, the district court adopted the Presentence Report, found a criminal history category of V, and sentenced Kelly to 70 months’ imprisonment at the low end of his applicable Guidelines range. After judgment was entered, Kelly timely appealed the denial of his motion to dismiss the indictment and his sentence.
III
We have jurisdiction under
IV
A
Kelly argues that the DEA did not place ethylone into Schedule I as a matter of law because
The Constitution states that “[a]ll legislative Powers herein granted shall be vested in a Congress of the United States.”
Section 812(b) prohibits any substance from being placed into Schedule I unless the DEA finds that it has (1) a high potential for abuse, (2) no currently accepted medical use in treatment, and (3) no accepted safe use under medical supervision.
The DEA must consider these factors “with respect to each drug or other substance proposed to be controlled.”
Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation, which contains any quantity of the [parent] hallucinogenic substances, or which contains any of their salts, isomers, and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible within the specific chemical designation[.]
The DEA did not violate the non-delegation doctrine when it temporarily scheduled ethylone. The agency made specific findings as to the parent drug, butylone. For example, the Notice and Order found that the ten synthetic cathinones “can cause acute health problems leading to emergency department admissions, violent behaviors causing harm to self or others, or death.” The DEA also found that “the possibility of death for individuals abusing [the ten synthetic cathinones] indicates that these substances are serious public health threats,” and it provided examples of two individuals who died after ingesting butylone or a mixture containing butylone and another controlled substance. Although Kelly contends otherwise, the DEA was not required to make specific findings for every isomer of butylone. The findings for butylone are sufficient to satisfy the requirements for temporary listing under
Thus, by complying with
B
When the DEA filed the Notice and Order in the Federal Register, Kelly received fair notice that ethylone was a controlled substance. The Fifth Amendment provides that “[n]o person shall ... be deprived of life, liberty, or property, without due process of law.”
Kelly had notice through the DEA‘s temporary scheduling of butylone and its isomers that his drug-selling conduct was forbidden. The agency fully complied with its statutory authority granted by Congress to address this emergency prompted by synthetic compounds like Ecstasy, which endanger the public. Here, the DEA‘s Order stated that “[a]s a result of this order, the ... criminal sanctions applicable to schedule I controlled substances will be imposed on persons who handle (manufacture, distribute, import, export, engage in research, conduct instructional activities, and possess) ... [the ten] synthetic cathinones.” Further, under the heading “Criminal Liability,” it warned that “[a]ny activity involving [the ten synthetic cathinones] not authorized by, or in violation of the CSA, occurring as of March 7, 2014, is unlawful, and may subject the person to ... criminal sanctions.” More specifically, the Order advised that “[b]utylone, its optical, positional, and geometric isomers, salts and salts of isomers,” were temporarily scheduled under Schedule I. The DEA‘s Notice contained substantially similar language.
Through the Federal Register, Kelly had public notice that distributing Ecstasy in the form of ethylone could result in criminal sanctions. See Wilhoit, 920 F.2d at 10.
C
The rule of lenity does not apply to Kelly‘s case. “The rule of lenity requires ambiguous criminal laws to be interpreted in favor of the defendants subjected to them.” United States v. Santos, 553 U.S. 507, 514, 128 S.Ct. 2020, 170 L.Ed.2d 912 (2008) (plurality opinion). It derives from the fundamental principle that “no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).
The rule of lenity “only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute such that the Court must simply guess as to what Congress intended.” Barber v. Thomas, 560 U.S. 474, 488, 130 S.Ct. 2499, 177 L.Ed.2d 1 (2010) (citation and quotations omitted). “In these circumstances—where text, structure, and history fail to establish that the Government‘s position is unambiguously correct—we apply the rule of lenity and resolve the ambiguity in [the defendant‘s] favor.” United States v. Granderson, 511 U.S. 39, 54, 114 S.Ct. 1259, 127 L.Ed.2d 611 (1994); People v. Materne, 72 F.3d 103, 106 (9th Cir. 1995) (“Only where the defendant‘s interpretation is unreasonable does the rule of lenity not apply.“).
The text, history and purpose of the CSA paint a clear picture that Congress intended to empower the DEA to temporarily schedule isomers. The plain language of
History also demonstrates that isomers can be temporarily listed. In 2000 Congress ordered the DEA to temporarily list the performance enhancing drug “GHB” “together with its ... isomers” in the same way that the DEA always does under
Finally, the purpose of the DEA‘s temporary scheduling power is to stop dangerous designer drugs as they are developed. The 1984 amendments giving the DEA the temporary scheduling power clarified the definition of “isomer” to avoid the “isomer defense“—when clever drug designers switch an isomer in an effort to avoid prosecution. S. Rep. No. 98-225, at 263 (1983). Congress sought to avoid “clandestine manufacturers [attempting] to circumvent the law by manufacturing positional and geometric isomers of hallucinogens in schedule I.” Id. Congress unambiguously granted the temporary scheduling authority to prohibit conduct, like Kelly‘s, of distributing dangerous substances that have yet to be permanently listed. If the DEA could not temporarily schedule isomers of parent substances, the entire emergency scheduling scheme would collapse. The DEA would be in a never-ending inquiry to temporarily schedule every single isomer and make findings on every chemical variation of a dangerous drug. It is highly unlikely the agency could keep up with the pace of clandestine drug manufacturers.
The plain language, history, and purpose of temporary scheduling authority make congressional intent clear. The rule of lenity only applies to “ambiguous criminal laws.” Santos, 553 U.S. at 514, 128 S.Ct. 2020. There is no ambiguity here.8
D
The DEA‘s decision to temporarily schedule ethylone was authorized pursuant to its temporary scheduling power and a clear directive from Congress. The district court properly found the DEA‘s temporary scheduling authorized at Chevron step one.
Chevron sets forth a two-step test for reviewing an agency‘s interpretation of a federal statute. Chevron, 467 U.S. at 842-44, 104 S.Ct. 2778. Under Chevron step one, the court must determine “whether Congress has directly spoken to the precise question at issue.” Id. at 842, 104 S.Ct. 2778. “If the intent of Congress is clear, that is the end of the matter,” and the court “must give effect to the unambiguously expressed intent of Congress.” Id. at 842-43, 104 S.Ct. 2778. However, “if the statute is silent or ambiguous with respect to the specific issue,” the court must proceed to the second Chevron step. Id. at 843, 104 S.Ct. 2778. Under Chevron step two, the court must uphold the agency‘s interpretation unless it is “arbitrary, capricious, or manifestly contrary to the statute.” Id. at 844, 104 S.Ct. 2778.
The plain language of the CSA evinces Congress’ intent to permit the DEA to temporarily schedule a parent
The temporary scheduling authority is broader and more efficient than permanent scheduling. The temporary authority is intended to permit the DEA to react quickly to new drugs on the market that present a threat to human health. S. Rep. No. 98-225, at 263-64 (1983). In order to properly address this threat, Congress gave the DEA the power to schedule threatening substances more efficiently, but only for a two-year period.
The intent of Congress is clear that the DEA has authority to temporarily schedule a parent substance and its isomers. Our inquiry ends at the first step of Chevron, 467 U.S. at 842, 104 S.Ct. 2778. The district court properly accorded Chevron deference to the agency interpretation.
E
Kelly‘s plea agreement clearly and unambiguously waived his right to appeal the very sentencing issue he raises here. Kelly does not contend that his waiver of this right was unknowing or involuntary. See United States v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005); see also United States v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (“A defendant who enters a conditional guilty plea ... must state in writing any issues he wishes to reserve for appeal and may lose the right to appeal issues not so expressly reserved.“).9 As Kelly fails to argue that his unambiguous waiver of his right to appeal was involuntary, the plea agreement controls on this issue and we hold his sentencing challenge was waived.
V
We affirm the district court‘s denial of Kelly‘s motion to dismiss the indictment; affirm Kelly‘s conviction; and dismiss Kelly‘s challenge to the district court‘s criminal history category calculation and resulting 70-month sentence.
AFFIRMED in part, DISMISSED in part.