United States v. Kelly, No. 16-10460 (9th Cir. 2017)
Annotate this CaseThe Ninth Circuit affirmed defendant's conviction for selling and possessing with the intent to sell over 446 grams of ethylone. The panel held that the DEA properly exercised its limited powers as defined by Congress to temporarily list butylone and its isomers, including ethylone; defendant had public notice that distributing Ecstasy in the form of ethylone could result in criminal sanctions; the rule of lenity did not apply in defendant's case; the DEA's decision to temporarily schedule ethylone was authorized pursuant to its temporary scheduling power and a clear directive from Congress; and defendant's plea agreement clearly and unambiguously waived his right to appeal the very sentencing issue he raised. Accordingly, the court dismissed defendant's motion to dismiss the indictment, affirmed the conviction, and dismissed defendant's challenge to his sentence.
Court Description: Criminal Law. The panel affirmed a conviction for selling and possessing with the intent to sell over 446 grams of ethylone, and dismissed the defendant’s challenge to his sentence. The panel rejected the defendant’s contention that the Drug Enforcement Administration violated the non- delegation doctrine by temporarily adding ethylone as a Schedule I controlled substance. The panel explained that the plain language of the Controlled Substances Act, as codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA to make findings for a parent substance as a basis to temporarily schedule that substance and its isomers. The panel rejected the defendant’s contention that the DEA violated due process by failing to provide adequate notice that ethylone was a controlled substance. The panel explained that the defendant received fair notice when the DEA filed the Notice and Order in the Federal Register. The panel held that the rule of lenity does not apply because the text, history, and purpose of the Controlled Substances Act make unambiguous that Congress intended to empower the DEA to temporarily schedule isomers. The panel held that because the intent of Congress is clear that the DEA has authority to temporarily schedule a
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