FILED
NOT FOR PUBLICATION
SEP 17 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10674
Plaintiff - Appellee, D.C. No. 2:12-cr-01419-DGC-1
v.
MEMORANDUM*
MICHAEL ROCKY LANE, AKA
Michael Lane,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted August 12, 2015
San Francisco, California
Before: REINHARDT, NOONAN, and CALLAHAN, Circuit Judges.
Michael Rocky Lane appeals his conviction for manufacturing and
distributing controlled substance analogues—including MDPV, a-PVP, and a-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
PBP1—in violation of the Controlled Substance Analogue Enforcement Act
(Analogue Act). See 21 U.S.C. §§ 802(32)(A), 813, 841. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
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, 135 S.Ct. 2298 (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
1
MDPV is an acronym for 3,4-methylenedioxypyrovalerone; a-PVP is
an acronym for alpha-Pyrrolidinopentiophenone; and a-PBP is an acronym for
alpha-Pyrrolidinobutiophenone.
2
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. U.S. SENTENCING GUIDELINES MANUAL
§ 2D1.1 cmt. n.6 (2014). Given the evidence presented at sentencing, the district
court’s determination that methcathinone was the most closely related substance
was not clearly erroneous.
AFFIRMED.
3