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United States v. Moreno

United States Court of Appeals, Seventh Circuit

August 30, 2017

United States of America, Plaintiff-Appellee,
v.
Michael R. Moreno, Defendant-Appellant.

          Argued December 9, 2016

         Appeal from the United States District Court for the Western District of Wisconsin. No. 15-cr-00015 - James D. Peterson, Judge.

          Before Williams and Hamilton, Circuit Judges, and Chang, District Judge. [*]

          Chang, District Judge

         Alpha-PVP is a designer drug that produces a powerful stimulant effect in its users. This effect, plus the drug's high potential for abuse, landed Alpha-PVP on the federal government's Schedule I of controlled substances. Michael Moreno pled guilty to importing Alpha-PVP from China and dealing the drug in northwestern Wisconsin. He now appeals the 80-month prison sentence imposed by the district court for that drug trafficking. Specifically Moreno argues that the district court assigned the wrong offense level to Alpha-PVP when calculating the Sentencing Guidelines range. Alpha-PVP is not specifically listed in the Sentencing Guidelines drug-quantity tables, so the Guidelines required the district court to determine the "most closely related" controlled substance, U.S.S.G. § 2D1.1, appl. n.6, and then use that drug's offense level for Alpha-PVP. After holding an evidentiary hearing, the district court found that the most closely related drug is methcathinone, which is another Schedule I controlled substance. Although we have a different take than the district court on the legal question of how to apply the pertinent Guideline, we affirm because the district court's careful and thorough factual finding was correct.

         I.

         Moreno began selling Alpha-PVP (which is shorthand for Alpha-pyrrolidinovalerophenone) back in 2012, Presentence Report (PSR) ¶ 14, even before the designer drug was listed on any Schedule of controlled substances. On March 7, 2014, the federal government listed Alpha-PVP as a Schedule I controlled substance. Schedule I is reserved for those drugs that have a "high potential for abuse, " have "no currently accepted medical use in treatment in the United States, " and "lack ... accepted safety for use, " even under medical supervision. 21 U.S.C. § 812(b)(1)(A)-(C). After Alpha-PVP made it onto Schedule I, Moreno conspired to sell at least 2.1 kilograms of it in northwestern Wisconsin. PSR ¶ 78. (For a sense of what that quantity means in practical terms, an individual dose of Alpha-PVP is around half a gram. Sentencing Tr. at 93.)

         After Moreno pled guilty, the case headed to sentencing, with the primary dispute being what offense level to assign to Alpha-PVP. As noted earlier, because the Sentencing Guidelines do not explicitly set an offense level for Alpha-PVP, the district court had to figure out which controlled substance is "most closely related" to Alpha-PVP. U.S.S.G. § 2D1.1, appl. n.6. The government proposed methcathinone, which is another Schedule I controlled substance. In support of that proposal, the government offered the testimony of two DEA scientists and three users of Alpha-PVP. Against this, and in order to argue that a substance called pyrovalerone was more closely related, the defense proffered expert-witness declarations of a forensic scientist and a pharmacologist. (The defense declarations had been submitted in other cases; a fuller description of the parties' evidence is discussed later in this opinion.) After holding an evidentiary hearing, the district court found that the most closely related drug is, as proposed by the government, methcathinone. With that finding in place, the district court calculated the advisory Sentencing Guidelines range, considered the 18 U.S.C. § 3553(a) factors, and imposed a sentence of 80 months' imprisonment.

         II.

         Usually, it is easy to figure out what Sentencing Guidelines offense level to assign to a particular quantity of drugs, because Guideline § 2D1.1 contains two tables that explicitly tell us the answer for the most commonly prosecuted drugs. U.S.S.G. §2Dl.l(c) (Drug Quantity Table), §2D1.1, appl. n.8(D) (Drug Equivalency Tables). When a controlled substance does not appear on either table, the Guidelines require that the district court determine which controlled substance is "most closely related" to the drug at issue, and then use that controlled substance's offense level:

In the case of a controlled substance that is not specifically referenced in this guideline, determine the base offense level using the marihuana equivalency of the most closely related controlled substance referenced in this guideline.

U.S.S.G. § 2D1.1, appl. n.6. The application note goes on and provides guidance on how to determine which controlled substance is most closely related to the one at issue. In essence, courts must look for similarities in chemical structure and in effects:

In determining the most closely related controlled substance, the court shall, to the extent practicable, consider the following:
(A) Whether the controlled substance not referenced in this guideline has a chemical structure that is substantially similar to a controlled ...

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