United States v. Ketchen

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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