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United States v. Ketchen

United States Court of Appeals, First Circuit

December 13, 2017

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]

          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.

          Before Barron, Selya, and Stahl, Circuit Judges.

          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 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") 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 ...

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