Romilo MAEDA-GARCIA; Wilfredo Maeda, Petitioners, v. Loretta E. LYNCH, Attorney General, Respondent.
No. 11-73130
United States Court of Appeals, Ninth Circuit
Filed Sept. 17, 2015
616 Fed. Appx. 328
Moris Rubilio Maeda-Maeda, pro se.
Brenda Analu Maeda-Maeda, pro se.
OIL, Joseph D. Hardy, Jr., Esquire, Trial, DOJ-U.S. Department of Justice, Washington, DC, Chief Counsel ICE, Office of the Chief Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
Before: SCHROEDER and M. SMITH, Circuit Judges, and BENITEZ, District Judge.*
MEMORANDUM**
This matter was referred to mediation. Only Romilo Maeda-Garcia and Wilfredo Maeda remain as petitioners, and Wilfredo‘s claims are derivative of Romilo, his father. The petitions have been referred back to us.
We appointed counsel to represent Petitioners and this court appreciates the work of the students at the University of Arizona, James E. Rogers College of Law.
The government has filed a motion to dismiss and Petitioners’ counsel has filed an opposition. The motion is denied.
On the merits, the only claim is that the Immigration Judge should have granted a continuance of the original hearing. Romilo‘s children have claimed on his behalf that his failure to appear at the hearing was excused by his having been granted advance parole by the government to visit his dying father in Guatemala. No evidence has ever been produced to support that claim and current counsel are not able to communicate with him. In the absence of any evidence of a justification for such continuance, there was no abuse of discretion in its denial. See Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
The petitions are DENIED.
UNITED STATES of America, Plaintiff-Appellee, v. Michael Rocky LANE, aka Michael Lane, Defendant-Appellant.
No. 13-10674
United States Court of Appeals, Ninth Circuit
Argued and Submitted Aug. 12, 2015. Filed Sept. 17, 2015.
616 Fed. Appx. 329
Donald J. Pashayan, Assistant U.S. Monica N. Edelstein, Theresa Cole Rassas, Mark J. Wenker, Office of the U.S. Attorney, Phoenix, AZ, James I. Pearce, Trial, U.S. Department of Justice, Washington, DC, for Plaintiff-Appellee.
Thomas M. Hoidal, Esquire, Law Office of Thomas M. Hoidal, PLC, Phoenix, AZ, for Defendant-Appellant.
MEMORANDUM*
Michael Rocky Lane appeals his conviction for manufacturing and distributing controlled substance analogues—including MDPV, a-PVP, and a-PBP1—in violation of the Controlled Substance Analogue Enforcement Act (Analogue Act). See
The Analogue Act is not unconstitutionally vague as applied in this case. The district court required the government to prove that Lane knew he was dealing with controlled substance analogues, satisfying the Supreme Court‘s subsequent holding in McFadden v. United States, — U.S. —, 135 S.Ct. 2298, 192 L.Ed.2d 260 (2015). This scienter requirement “alleviate[s] vagueness concerns.” Id. at 2307 (alteration in original); see also United States v. Turcotte, 405 F.3d 515, 531 (7th Cir.2005) (“The circuit courts considering this issue have unanimously held that the CSA‘s Analogue Provision is not unconstitutionally vague.“).
The district court did not abuse its discretion in allowing drug users to compare their experiences with the alleged analogues and common illegal stimulants. The district court admitted comparisons with cocaine and methamphetamine on the condition that the government lay the necessary foundation, requiring the government to show that MDPV or methcathinone (the controlled substances alleged to have similar chemical structures) also have similar pharmacological effects. This conditional admission was not error. See United States v. Gere, 662 F.2d 1291, 1294 (9th Cir.1981).
The district court did not abuse its discretion in excluding evidence about pyrovalerone, a Schedule V controlled substance, as irrelevant and confusing. Lane argues that the excluded evidence was relevant on the premise that he could not be found guilty if he could prove that the alleged analogues were closer to pyrovalerone than to methcathinone or MDPV. This premise is not supported by the statutory language or the caselaw.
The district court did not err in using methcathinone to calculate Lane‘s base offense level for sentencing. The district court properly considered the factors listed in the Sentencing Guidelines to determine the most closely related controlled substance referenced in the guideline.
AFFIRMED.