United States Court of Appeals
For the First Circuit
No. 16-2309
UNITED STATES OF AMERICA,
Appellee,
v.
ALAN KETCHEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Barron, Selya, and Stahl,
Circuit Judges.
Ronald W. Bourget, for defendant-appellant.
Benjamin M. Block, Assistant U.S. Attorney, with whom Richard
W. Murphy, Acting U.S. Attorney, was on brief, for appellee.
December 13, 2017
STAHL, Circuit Judge. Alan Ketchen appeals from an order
denying his motion to withdraw his guilty plea for conspiracy to
distribute 3,4-Methylenedioxypyrovalerone (MDPV), also known as
"bath salts," and for maintaining a drug-involved residence.
Ketchen claims his guilty plea was not knowing and voluntary
because the district court did not sufficiently apprise him of the
necessary scienter for a conviction under the Controlled Substance
Analogue Enforcement Act of 1986 ("Analogue Act"), 21 U.S.C.
§ 802(32)(A). Ketchen largely bases his argument on the Supreme
Court's decision in McFadden v. United States, 135 S. Ct. 2298
(2015), which was issued after he entered his plea but before he
was sentenced. Ketchen also challenges the factual determinations
the court made in calculating his sentence. After careful review,
we affirm.
I.
In December 2010, Ketchen learned about MDPV from a
"longtime drug addict." Ketchen understood that MDPV was a "rave
drug" that people used to "stay up all night and go partying all
night, dance, have sex or whatever." Ketchen began using MDPV and
quickly developed a "horrible" addiction. By March or April 2011,
Ketchen started selling MDPV out of his house in Bangor, Maine to
support his habit, and eventually became one of the largest dealers
of MDPV in the Bangor area. Ketchen often received up to $5,000
in single transactions, provided MDPV to customers without asking
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for up-front payment if they would make deliveries on his behalf,
and also accepted stolen goods as payment for the drug. During
the same period, Ketchen sold other controlled substances,
including Suboxone, Xanax, Klonopin, and ecstasy.
In his acceptance of responsibility statement made to
the probation department after his plea, Ketchen claimed he
initially believed he was selling a legal drug, but eventually
realized otherwise:
At some point I became aware that I was selling
and using an illegal drug. I was out of
control . . . . I started selling MDPV out of
my apartment and was clear that the laws
changed or at least my perception of the law
changed. I was not just selling a legal
synthetic chemical, I was selling an illegal
drug and using an illegal substance. I was
being supplied an illegal drug, selling an
illegal drug, and getting enough to use in
return.
On November 10, 2011, Ketchen was arrested at his
residence along with one of his co-conspirators. The police
conducted a search of his residence and found a total of 1,110.5
grams of MDPV, as well as other controlled substances, digital
scales, drug paraphernalia, notebooks listing drug debts, and
$11,462 in cash.
On July 17, 2013, Ketchen was indicted for conspiracy to
distribute and possession with intent to distribute MDPV and for
maintaining a drug-involved residence. The indictment relied on
both the Analogue Act and the Controlled Substances Act ("CSA")
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because during the time of the conspiracy, MDPV's classification
was changed from a controlled substance analogue to a Schedule I
controlled substance. Schedules of Controlled Substances:
Temporary Placement of Three Synthetic Cathinones Into Schedule I,
76 Fed. Reg. 65371 (Oct. 21, 2011) (to be codified at 21 C.F.R.
pt. 1308). Count I of the indictment set forth this change in
classification, alleging that Ketchen:
[K]nowingly and intentionally conspired . . .
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 . . . 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 . . . .
On May 7, 2014, Ketchen pled guilty to both counts of the
indictment.
On June 18, 2015, after Ketchen entered his plea but
before he was sentenced, the Supreme Court issued its decision in
McFadden v. United States. 135 S. Ct. 2298 (2015). In McFadden,
the Court held that to support a conviction under § 841(a)(1), the
government must "establish that the defendant knew he was dealing
with 'a controlled substance,'" even when the controlled substance
at issue was an analogue. Id. at 2302. The government could prove
knowledge by showing that "the defendant knew that the substance
was controlled under the CSA or the Analogue Act, even if he did
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not know its identity" or by showing that "the defendant knew the
specific features of the substance that make it a 'controlled
substance analogue.'" Id. (quoting 21 U.S.C. § 802(32)(A)).
Twelve days after McFadden was decided, Ketchen moved to
withdraw his guilty plea. He claimed he did not know MDPV was a
controlled substance analogue before October 21, 2011 and believed
he was selling a legal synthetic research chemical. According to
Ketchen, if he had been informed at the Rule 11 hearing of the
Analogue Act's knowledge requirement, as set forth in McFadden, he
would not have pled guilty.
The court denied Ketchen's motion to withdraw his guilty
plea. United States v. Ketchen, No. 1:13-CR-00133-JAW-02, 2016 WL
3676150 (D. Me. July 6, 2016). The court determined that the
indictment and Rule 11 hearing adequately apprised Ketchen of the
charges, including the knowledge requirement. In addition, the
court found there was strong circumstantial evidence, including
Ketchen's own statements, showing that he knew he was dealing with
an illegal drug before October 21, 2011.
Ketchen was sentenced to 160 months in prison. On
appeal, he challenges the court's denial of his motion to withdraw,
as well as the court's determination at sentencing of which
controlled substance is most analogous to MDPV.
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II.
A court may allow a defendant to withdraw a guilty plea
after it has accepted the plea, but before it has imposed a
sentence, if "the defendant can show a fair and just reason for
requesting the withdrawal." Fed. R. Crim. P. 11(d)(2)(B). When
considering a motion to withdraw a guilty plea, "a court ordinarily
should begin by considering whether the plea, when entered, was
voluntary, intelligent, and informed." United States v. Gates,
709 F.3d 58, 68 (1st Cir. 2013). A court may also consider "the
plausibility and weight of the reason given for the withdrawal,
the timing of the request, whether the defendant is now colorably
asserting legal innocence, and whether the original plea was
pursuant to a plea agreement." United States v. Caramadre, 807
F.3d 359, 366 (1st Cir. 2015) (quoting United States v. Aker, 181
F.3d 167, 170 (1st Cir. 1999)). The denial of a motion to withdraw
a guilty plea is reviewed for abuse of discretion. United States
v. Merritt, 755 F.3d 6, 9 (1st Cir. 2014).
Ketchen contends his guilty plea was not knowing and
voluntary because the court failed to apprise him of the level of
knowledge necessary for conviction under the Analogue Act. Ketchen
claims that neither the indictment nor the Rule 11 colloquy
informed him that the government must prove he knew he was dealing
with a controlled substance before October 21, 2011.
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The requirements of Rule 11 "are intended to assure that
the defendant understands the charge and the consequences of the
plea." United States v. Padilla-Galarza, 351 F.3d 594, 597 (1st
Cir. 2003). This includes informing the defendant of "the elements
of the charges that the prosecution would have to prove at trial."
United States v. Fernández-Santos, 856 F.3d 10, 16 (1st Cir. 2017)
(quoting United States v. Gandia-Maysonet, 227 F.3d 1, 3 (1st Cir.
2000)).
At the same time, Rule 11 "does not require the court to
explain the technical intricacies of the charges in the
indictment." Id. (quoting United States v. Ramos-Mejía, 721 F.3d
12, 15 (1st Cir. 2013)). The court's explanation "need not be
precise to the point of pedantry." United States v. Jones, 778
F.3d 375, 382 (1st Cir. 2015). "The manner in which the charge is
explained and the method for determining the defendant's
understanding of the charge will vary from case to case depending
upon the complexity of the charges, the capacity of the defendant,
and the attendant circumstances." United States v. Cotal-Crespo,
47 F.3d 1, 6 (1st Cir. 1995).
Ketchen himself admitted in his motion to withdraw that
he advances a "very narrow" challenge to his plea. Ketchen does
not deny that he participated in a conspiracy to distribute MDPV
and maintained a drug-involved residence after October 21, 2011.
Rather, he claims he did not realize he was dealing with a
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controlled substance before October 21, 2011 and therefore cannot
be guilty of violating the Analogue Act. As the district court
observed, this leaves Ketchen in "an unusual position," wherein he
does not deny that he is guilty "of violating those portions of
Counts One and Three that allege he violated the Controlled
Substances Act." Ketchen, 2016 WL 3676150, at *14.
The court, without question, sufficiently explained the
portions of Counts I and III that allege Ketchen violated the CSA.
Any questions that arise regarding the Analogue Act portion of the
charges in light of McFadden are simply not relevant at the plea
stage of Ketchen's case. After having been apprised of the
necessary elements for conviction under the CSA, Ketchen submitted
a knowing and voluntary plea to Counts I and III. As the court
found below, "once his criminal responsibility under the
Controlled Substances Act is established, how to treat his pre-
October 21, 2011 activity becomes solely a sentencing issue."
Ketchen, 2016 WL 3676150, at *14.1
We need go no further. Because we find that Ketchen's
plea was knowing and voluntary, and because he raises no colorable
claim of innocence as to his post-October 21, 2011 conduct, we
1 Moreover, by failing to challenge the CSA portions of his guilty
plea below, and by failing to develop a challenge to them in his
opening brief, he has waived the issue. See United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990).
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find the court did not abuse its discretion in denying the motion
to withdraw his guilty plea.2
III.
Ketchen also appeals the court's determination that
methcathinone, a Schedule I controlled substance, was the
controlled substance listed in the sentencing guidelines most
analogous to MDPV. The government had requested that the court
use methcathinone as the comparator for calculating Ketchen's base
offense level. As he argued below, Ketchen claims that MDPV should
be compared to pyrovalerone, a Schedule V drug.
Before sentencing, the government and Ketchen submitted
evidence on their proposed comparators to the court. The
government offered testimony of a chemist and a drug science
specialist that demonstrated how MDPV and methcathinone share
similar chemical structures and have similar pharmacological
effects on the central nervous system. Ketchen submitted two
written reports showing that MDPV and pyrovalerone share similar
2 Additionally, Ketchen argues that his conviction should be
vacated due to the government's alleged failure adequately to plead
scienter in the indictment. This argument is unavailing. A
knowing, voluntary, and unconditional guilty plea effectuates a
waiver of all non-jurisdictional errors preceding the plea. See
Tollett v. Henderson, 411 U.S. 258, 267 (1973); United States v.
Cordero, 42 F.3d 697, 699 (1st Cir. 1994). Because the alleged
defect in the indictment is non-jurisdictional, and because we
have found that Ketchen's plea was knowing and voluntary, Ketchen
has waived this argument. See United States v. Cotton, 535 U.S.
625, 630 (2002); United States v. Urbina-Robles, 817 F.3d 838, 842
(1st Cir. 2016).
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chemical structures. However, he offered no evidence as to whether
MDPV and pyrovalerone have similar effects on the central nervous
system. Pointing to Ketchen's failure to offer evidence on this
"critical point," the court found that MDPV is a controlled
substance analogue to methcathinone and calculated Ketchen's base
offense level using methcathinone as a comparator.
We review the district court's selection of a comparator
for clear error. United States v. Giggey, 867 F.3d 236, 242 (1st
Cir. 2017). We find no clear error here. The court considered
expert testimony and other technical evidence regarding the
chemical and pharmacological similarities between MDPV,
methcathinone, and pyrovalerone. "The district court found the
government's expert evidence more persuasive, and we have said
that '[w]hen dueling experts have each rendered a coherent and
facially plausible opinion, the trial court's decision to adopt
one and reject the other cannot be clearly erroneous.'" Id. at
242-43 (quoting United States v. Jordan, 813 F.3d 442, 447 (1st
Cir. 2016)).
It is an open question whether an analogue comparator
must be drawn from controlled substances listed in Schedule I or
II, as opposed to a drug drawn from Schedule V. Id. at 241. Here,
however, the district court "went the extra mile and thoroughly
considered the Schedule V drug proposed by the defendant," so we
need not probe this issue further. Id.
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In the alternative, Ketchen argues that the district
court erred in failing to convene an evidentiary hearing before
determining the proper comparator for MDPV. We review a sentencing
court's refusal to convene an evidentiary hearing for abuse of
discretion. See United States v. Garcia, 954 F.2d 12, 19 (1st
Cir. 1992). "[E]videntiary hearings at sentencing are . . . the
exception rather than the rule," and we have repeatedly recognized
that "many disputes can adequately be heard and determined on a
paper record." United States v. Robles-Torres, 109 F.3d 83, 85
(1st Cir. 1997). Here, the district court, after canvassing the
extensive evidentiary record, determined that live testimony was
unnecessary. This determination was well within its discretion.
IV.
For the reasons discussed above, we affirm the district
court's denial of the motion to withdraw the guilty plea and the
resulting sentence.
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