FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. John A. Woodcock, Jr., U.S. District
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.
Barron, Selya, and Stahl, Circuit Judges.
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.
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.
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
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.
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.
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 ...