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United States v. Ketchen

United States District Court, D. Maine

June 11, 2015

UNITED STATES OF AMERICA
v.
ALAN KETCHEN, RYAN ELLIS, and JACOB GAGNON

ORDER ON TREATMENT OF 3, 4 METHYLENEDIOXYPYROVALERONE UNDER UNITED STATES SENTENCING GUIDELINES AND REQUEST FOR JOINT PRESENTENCE CONFERENCE

JOHN A. WOODCOCK Jr., District Judge.

Alan Ketchen, Ryan Ellis, and Jacob Gagnon request that the Court not treat 3, 4-Methylenedioxypyrovalerone (MDPV) as an analogue of methcathinone for the purposes of determining drug quantity and base offense level. Mr. Ellis and Mr. Gagnon further request that the Court treat MDPV as pyrovalerone for the period before MDPV was listed on Schedule I, and that the Court use pyrovalerone, not methcathinone, to calculate their drug quantity and base offense level, on the ground that MDPV is more closely related to pyrovalerone. The Court denies the Defendants' requests and concludes that MDPV is a controlled substance analogue of methcathinone. The Court grants the parties' request for a joint pre-sentence conference.

I. PROCEDURAL BACKGROUND

On July 17, 2013, a federal grand jury indicted Mr. Ellis, Mr. Ketchen, and Mr. Gagnon on one count of knowingly and intentionally conspiring to distribute and possess with intent to distribute MDPV, classified as a controlled substance analogue prior to October 21, 2011, and classified as a Schedule I controlled substance after October 21, 2011, all in violation of 21 U.S.C. §§ 813, 841(a)(1). Indictment at 1-3 (ECF No. 1).[1] On May 7, 2014, June 17, 2014, and June 27, 2014, Mr. Ketchen, Mr. Ellis, and Mr. Gagnon, respectively, pleaded guilty to that count of the indictment. Minute Entry (ECF Nos. 374, 426, 438).

On October 27, 2014, November 17, 2014, and December 18, 2014, the Government filed sentencing memoranda regarding Mr. Ellis, Mr. Gagnon, and Mr. Ketchen, respectively. Gov't's Mem. in Aid of Sentencing (ECF Nos. 531, 546, 595) ( Gov't's Mem. ). On January 23, 2015, Mr. Gagnon filed his sentencing memorandum. Def.'s Mem. in Aid of Sentencing (ECF No. 636) ( Gagnon Mem. ). That same day, Mr. Ellis filed his sentencing memorandum. Def.'s Mem. in Aid of Sentencing (ECF No. 637) ( Ellis Mem. ). On January 30, 2015, the Government filed its reply to Mr. Gagnon's memorandum. Gov't's Reply Mem. in Aid of Sentencing (ECF No. 639) ( Gov't's Reply to Gagnon ). That same day, the Government filed its reply to Mr. Ellis' memorandum. Gov't's Reply Mem. in Aid of Sentencing (ECF No. 640) ( Gov't's Reply to Ellis ). On February 9, 2015, Mr. Ketchen filed his sentencing memorandum. Def. Alan Ketchen's Mem. in Support of Sentencing (ECF No. 643) ( Ketchen Mem. ). On February 11, 2015, the Government filed its reply to Mr. Ketchen's memorandum. Gov't's Reply Mem. in Aid of Sentencing and Request for Joint Pre-Sentence Conference (ECF No. 645) ( Gov't's Reply to Ketchen ).

On April 23, 2015, the Court issued an order on Mr. Ellis' Offer of Proof. Order on Offer of Proof (ECF No. 673) ( Offer of Proof Order ). In his memorandum, Mr. Ellis stated that he was "prepared to offer further expert evidence at a hearing to establish that MDPV is not only an analogue to pyrovalerone, but that it is more closely related to pyrovalerone than it is to methcathinone." Ellis Mem. at 3. To give Mr. Ellis an opportunity to present this proffered evidence, the Court ordered Mr. Ellis to present a synopsis of what his expert would testify, if called as a witness. Offer of Proof Order at 1. Although Mr. Ellis timely filed his expert's curriculum vitae on April 30, 2015, he moved to extend the time to supply his expert's opinion to May 29, 2015. Mot. to Enlarge Time to File Detailed Expert Report (ECF No. 685). On May 1, 2015, the Court reluctantly granted the motion. Order on Mot. to Enlarge Time to File Detailed Expert Report (ECF No. 687). On May 29, 2015, Mr. Ellis filed his expert report. See Offer of Proof Attach. 1, Curriculum Vitae of Heather L. Harris (ECF No. 686-1) ( Harris C.V. ); Report in the Matter of U.S. v. Ryan Ellis, 1:13-CR-00133-JAW (ECF No. 704) ( Harris Report ). The Court inquired as to whether the Government intended to present a rebuttal to the Harris report and the Government declined to do so.

II. THE PARTIES' POSITIONS

A. The Government's Sentencing Memorandum[2]

The Government focuses its sentencing arguments on the conspiratorial period before October 21, 2011, when MDPV was not yet a listed controlled substance and argues that, for sentencing purposes, methcathinone should be considered the "most closely related controlled substance" to MDPV.[3] Gov't's Mem. at 2-5. It points out that MDPV is not listed in the United States Sentencing Commission, Guidelines Manual (USSG) Drug Equivalency Table, and therefore the drug quantity should be calculated by using the marijuana equivalency of the most closely related controlled substance referenced in the guidelines. Id. at 2.

The Government argues that under both federal statute and federal sentencing guidelines, MDPV must be compared to either a Schedule I or II drug in calculating the Defendants' base offense level at sentencing. Id. at 3-7. The Government submits that under federal statute, a "controlled substance analogue" is defined as a substance that has either a "substantially similar" chemical structure as a Schedule I or II controlled substance, or a "substantially similar to or greater than" stimulant, depressant, or hallucinogenic effect on the central nervous system as a Schedule I or II controlled substance. Id. at 3. The Government asserts that the guidelines likewise require the Court to compare MDPV to either a Schedule I or II drug because the guidelines adopt the statutory definition of "controlled substance analogue". Id. at 3-4.

In anticipation of the Defendants' argument that MDPV should be compared to pyrovalerone, the Government points out that methcathinone is a Schedule I drug whereas pyrovalerone is a Schedule V drug, and that methcathinone is referenced in the sentencing guidelines whereas pyrovalerone is not. Id. at 5-6. The Government argues that USSG § 2D1.1 and related commentary in Application Note 6 require the Court to determine "the most closely related controlled substance" to MDPV. Id. at 5. The Government maintains that methcathinone is most closely related to MDPV because it is structurally similar and has a substantially similar pharmacological effect as MDPV. It offers the grand jury testimony of a chemist and a drug science specialist, both employed by the U.S. Drug Enforcement Agency (DEA), as evidence that the two compounds share similar chemical structures and have similar effects on the central nervous system.[4] Id. at 7-8. The Government asserts that a disconnect that would occur if MDPV was treated as a Schedule V drug before October 21, 2011, but later was listed in Schedule I. Id. at 6. The Government argues that this treatment would also be inconsistent with Congress's intent. Id.

B. Alan Ketchen's Sentencing Memorandum

Mr. Ketchen acknowledges that he pleaded guilty to conspiracy to distribute and possess with intent to distribute controlled and analogue substances, but he maintains that USSG § 2D1.1 Application Note 6 does not expressly apply because MDPV was not listed as a controlled substance before October 21, 2011, and because the Application Note 6 analysis applies only to "controlled substances not referenced in the guidelines". Ketchen Mem. at 2-3 (emphasis in original). He recognizes that the determination of whether MDPV was a controlled substance or a controlled substance analogue at that time impacts the application of the guidelines. Id. at 3. He "suggests leniency in the [§] 2D1.1 calculation", id. at 2, because there is insufficient evidence to support the comparison of MDPV to methcathinone, and because "the definition of analogue is rife with ambiguity." Id. at 4.

C. The Government's Reply to Mr. Ketchen's Memorandum

The Government asserts that it has provided the Court with "ample evidentiary basis" to conclude that methcathinone should be used to calculate the guideline in this case. Id. at 2. Additionally, the Government contends that the rule of lenity should not apply in this case, and even if it did, Mr. Ketchen waived that argument when he acknowledged on the record that MDPV is a controlled substance analogue. Id. at 2-3.

D. Ryan Ellis' Sentencing Memorandum

Mr. Ellis states that because MDPV is not listed in USSG § 2D1.1(c), Application Note 6 applies and provides that the base offense level should be determined using the "most closely related" controlled substance referenced in the guideline. Ellis Mem. at 1. Mr. Ellis asserts that "there is some debate" regarding which controlled substance is most closely related to MDPV. Id. at 2. He points to an article authored by two DEA Special Testing and Research Laboratory scientists that says "MDPV is the methlenedioxy analogue of Pyrovalerone, a Schedule V stimulant first synthesize[d] in 1964."[5] Id. (quoting Yohannan Article at 12). Mr. Ellis states that he is prepared to offer further expert evidence that MDPV is an analogue to pyrovalerone and more closely related to pyrovalerone than methcathinone. Id. at 3. He disputes the Government's claim that pyrovalerone cannot be considered an analogue to MDPV, arguing that using pyrovalerone to calculate the marijuana equivalent drug quantity of MDPV does not change the schedule of MDPV, it merely guides the Court in determining how to compare MDPV to other Schedule I controlled substances. Id. at 3-4. He states that even if both methcathinone and pyrovalerone are analogues to MDPV, the rule of lenity directs that Mr. Ellis be given the benefit of using pyrovalerone to calculate the drug quantity. Id. at 3. Finally, Mr. Ellis argues that he has a Sixth Amendment right to confront the Government's DEA witnesses.[6] Id.

E. The Government's Reply to Ryan Ellis' Memorandum

The Government asserts that in order to properly calculate the guidelines in this case, the Court "must equate [MDPV] to a drug that is referenced in the guidelines." Gov't's Reply to Ellis at 1 (emphasis in original). It points out that methcathinone is referenced in the guidelines, whereas pyrovalerone is not. Id. Furthermore, the Government maintains, the drafters of the commentary to § 2D1.1 could have endorsed the comparison of an analogue substance to any Title 21 controlled substance, but they did not do so. Id. at 2. The Government submits, therefore, that comparing MDPV to methcathinone is consistent not only with Congress's listing of MDPV as a Schedule I controlled substance, but also with existing caselaw and this Court's approach to sentencing other defendants in this conspiracy. Id.

Turning to the Yohannan article, the Government asserts that the article does not conclude that MDPV is a controlled substance analogue of pyrovalerone within the definition set forth in 21 U.S.C. § 802(32). Id. Furthermore, the Government points out, the article does not speak to what drug referenced in the guidelines is most closely related to MDPV. Id. at 3.

F. Jacob Gagnon's Sentencing Memorandum

Mr. Gagnon argues that Application Note 6 does not apply because MDPV was not a "controlled substance" before October 21, 2011. Gagnon Mem. at 1. He contends that the definition of "controlled substance" in 21 U.S.C. § 802(6) applies to this case, and that a "controlled substance" includes Schedule V substances under § 802(6). Id. at 2. Mr. Gagnon asserts that pyrovalerone is thus eligible for being compared with methcathinone to determine which substance is most closely related to MDPV. Id. at 2-4. He argues that the definition of "controlled substance analogue" under 21 U.S.C. § 802(32) is "rife with ambiguity" and insists that "in such cases, courts apply the rule of leniency to construe criminal statutes in favor of the defendant". Id. at 2. He urges the Court to conduct an evidentiary analysis to determine whether, as a factual matter, either methcathinone or pyrovalerone is "most closely related" to MDPV. Id. at 5.

G. The Government's Reply to Jacob Gagnon's Memorandum

The Government maintains that Application Note 6 provides that the definition of "controlled substance" includes any analogue of a controlled substance, and that Mr. Gagnon admitted that MDPV was a controlled substance analogue within the meaning of 21 U.S.C. § 802(32)(A). Gov't's Reply to Gagnon at 1. The Government argues that, for the purposes of sentencing, Mr. Gagnon has admitted that MDPV is the analogue of a Schedule I or II drug under § 802(32)(A). Id. The Government acknowledges that MDPV is not specifically referenced in the sentencing guidelines, but states that Application Note 6 provides that the Court calculate the bases offense level using the marijuana equivalency of the most closely related substance referenced in the guidelines. Id. at 1-2. Pyrovalerone, the Government states, is not referenced in the guidelines. Id. at 2. The Government maintains that the issue of whether MDPV can be compared to pyrovalerone is a question of law. Id. at 3.

III. FACTUAL AND STATUTORY BACKGROUND

A. The Indictment

When the grand jury charged Messrs. Ellis, Ketchen and Gagnon on July 17, 2013 with violating federal drug trafficking laws, the indictment contained some unusual language in Count One:

Beginning on a date unknown, but no later than April 1, 2011 and continuing until a date unknown, but no earlier than December 31, 2011, in the District of Maine and elsewhere, defendants RYAN ELLIS, a/k/a "Dude", "Calvin", "Piles"[;] AL:AN J. KETCHEN, a/k/a "AJ", "Hobbes"[;]... JACOB GAGNON, a/k/a "Jake the Snake".... knowingly and intentionally conspired with one another and with persons known and unknown to commit offenses against the United States, namely distribution and possession with intent to distribute: (1) prior to October 21, 2011, a mixture or substance containing a detectable amount of MDPV, a controlled substance analogue as defined in Title 21, United States Code, Section 802(32), with intent for human consumption as provided in Title 21, United States Code, Section 813; and (2) from October 21, 2011 until a date unknown, but no earlier than December 31, 2011, a mixture or substance containing a detectable amount of MDPV, a Schedule I controlled substance (by Final Order of DEA, 76 Fed. Reg. 65371, all in violation of Title 21, United States Code, Section 846, 841(a)(1), and 813.

Indictment at 3 (bold in original). What is unusual about this language is the distinction between events before and after October 21, 2011; this distinction drives the dispute in this case.

B. The Statutory Backdrop

1. Chapter 13 of Title 21: Drug Abuse Prevention and Control; Application to Post-October 21, 2011 Conduct

In the indictment, the Government charged Messrs. Ellis, Ketchen, and Gagnon with violating 21 U.S.C. § 841(a)(1), which makes illegal the knowing or intentional distribution or possession with the intent to distribute certain controlled substances. More specifically, the Government charged these Defendants with violating § 841(b)(1)(C), a provision that refers to "controlled substances in schedule I or II". See 21 U.S.C. § 841(b)(1)(C). Similarly, in § 802(6), the law defines "controlled substance" to mean "a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of part B of this subchapter." 21 U.S.C. § 802(6). The law grants the Attorney General of the United States the authority to add or remove drugs from a schedule after opportunity for a hearing. 21 U.S.C. § 811(a).

Effective October 21, 2011, the Administrator of the Drug Enforcement Administration listed 3, 4-Methylenedioxypyrovalerone as a Schedule I controlled substance:

SUMMARY: The Administrator of the Drug Enforcement Administration (DEA) is issuing this final order to temporarily schedule three synthetic cathinones under the Controlled Substances Act (CSA) pursuant to the temporary scheduling provisions of 21 U.S.C. 811(h). The substances are 4-methyl-N-methylcathinone (mephedrone), 3, 4methylenedioxy-N-methylcathinone (methylone), and 3, 4methylenedioxypyrovalerone (MDPV). This action is based on a finding by the Administrator that the placement of these synthetic cathinones and their salts, isomers, and salts of isomers into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety. As a result of this order, the full effect of the CSA and its implementing regulations including criminal, civil and administrative penalties, sanctions and regulatory controls of Schedule I substances will be imposed on the manufacture, distribution, possession, importation, and exportation of these synthetic cathinones.

Schedules of Controlled Substances: Temporary Placement of Three Synthetic Cathinones Into Schedule I, 76 Fed. Reg. 65371-01 (Oct. 11, 2011). The October 11, 2011 order clarified that for purposes of criminal liability, the effective date was October 21, 2011. Id.

Here, none of the Defendants has asserted that their admitted conduct on and after October 21, 2011 did not violate federal law and none has attempted to claim any infirmity with the listing of MDPV as a Schedule I controlled substance as of October 21, 2011. Gagnon Mem. at 1 ("The term controlled substance' is defined in 21 U.S.C. § 802(6) as a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V or part B of this subchapter. MDPV became a controlled substance as of Oct. 21, 2011"); Ellis Mem. at 1-5; Ketchen Mem. at 1, n.1 ("The substance 3, 4 Methylenedioxypyrovalerone was not listed as a schedule I controlled substance until October 21, 2011"). Thus, the Defendants have conceded that their conduct in possessing MDPV with the intent to distribute it and actually distributing MDPV from October 21, 2011 onward constituted the illegal possession and distribution of a Schedule I controlled substance. The dispute is about the status of MDPV before October 21, 2011 and, as Mr. Gagnon has argued, "[t]his date is important because most of the conduct for which the Defendant is being held accountable here predated October 21, 2011". Gagnon Mem. at 1.

2. The Controlled Substance Analogue Enforcement Act of 1986: Application to Pre-October 21, 2011 Conduct

Congress enacted the Controlled Substance Analogue Enforcement Act of 1986 (The Analogue Act) "to prevent underground chemists' from creating new drugs that have similar effects on the human body as drugs explicitly prohibited under the federal drug laws." United States v. McFadden, 753 F.3d 432, 436 (4th Cir. 2014), cert. granted ___ U.S. ___, 135 S.Ct. 1039 (2015)[7]; United States v. Hodge, 321 F.3d 429, 437 (3d Cir. 2003) (purpose of The Analogue Act is to "make illegal the production of designer drugs and other chemical variants of listed controlled substances that otherwise would escape the reach of the drug laws"). The Analogue Act provides:

A controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I.

21 U.S.C. § 813. Except as provided in subparagraph (C) of § 802(32), [8] the term "controlled substance analogue" means a substance:

(i) the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II;
(ii) which has a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II; or
(iii) with respect to a particular person, which such person represents or intends to have a stimulant, depressant, or hallucinogenic effect on the central nervous system that is substantially similar to or greater than the stimulant, depressant, or hallucinogenic effect on the central nervous system of a controlled substance in schedule I or II.

21 U.S.C. § 802(32)(A). Together, these provisions have been interpreted to require the Government prove three elements: (1) substantial chemical similarity between the analogue and the controlled substance (the chemical structure element), see 21 U.S.C. § 802(32)(A)(i); (2) substantially similar actual, intended, or represented physiological effects on the central nervous system (the pharmacological similarity element), see 21 U.S.C. § 802(32)(A)(i), (ii); and, (3) intent that the substance be consumed by humans (the human ...


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