                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            SEP 17 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-10674

              Plaintiff - Appellee,              D.C. No. 2:12-cr-01419-DGC-1

 v.
                                                 MEMORANDUM*
MICHAEL ROCKY LANE, AKA
Michael Lane,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                      Argued and Submitted August 12, 2015
                            San Francisco, California

Before: REINHARDT, NOONAN, and CALLAHAN, Circuit Judges.

      Michael Rocky Lane appeals his conviction for manufacturing and

distributing controlled substance analogues—including MDPV, a-PVP, and a-




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
PBP1—in violation of the Controlled Substance Analogue Enforcement Act

(Analogue Act). See 21 U.S.C. §§ 802(32)(A), 813, 841. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      The Analogue Act is not unconstitutionally vague as applied in this case.

The district court required the government to prove that Lane knew he was dealing

with controlled substance analogues, satisfying the Supreme Court’s subsequent

holding in McFadden v. United States, 135 S.Ct. 2298 (2015). This scienter

requirement “alleviate[s] vagueness concerns.” Id. at 2307 (alteration in original);

see also United States v. Turcotte, 405 F.3d 515, 531 (7th Cir. 2005) (“The circuit

courts considering this issue have unanimously held that the CSA’s Analogue

Provision is not unconstitutionally vague.”).

      The district court did not abuse its discretion in allowing drug users to

compare their experiences with the alleged analogues and common illegal

stimulants. The district court admitted comparisons with cocaine and

methamphetamine on the condition that the government lay the necessary

foundation, requiring the government to show that MDPV or methcathinone (the

controlled substances alleged to have similar chemical structures) also have similar


      1
             MDPV is an acronym for 3,4-methylenedioxypyrovalerone; a-PVP is
an acronym for alpha-Pyrrolidinopentiophenone; and a-PBP is an acronym for
alpha-Pyrrolidinobutiophenone.
                                          2
pharmacological effects. This conditional admission was not error. See United

States v. Gere, 662 F.2d 1291, 1294 (9th Cir. 1981).

      The district court did not abuse its discretion in excluding evidence about

pyrovalerone, a Schedule V controlled substance, as irrelevant and confusing.

Lane argues that the excluded evidence was relevant on the premise that he could

not be found guilty if he could prove that the alleged analogues were closer to

pyrovalerone than to methcathinone or MDPV. This premise is not supported by

the statutory language or the caselaw.

      The district court did not err in using methcathinone to calculate Lane’s base

offense level for sentencing. The district court properly considered the factors

listed in the Sentencing Guidelines to determine the most closely related controlled

substance referenced in the guideline. U.S. SENTENCING GUIDELINES MANUAL

§ 2D1.1 cmt. n.6 (2014). Given the evidence presented at sentencing, the district

court’s determination that methcathinone was the most closely related substance

was not clearly erroneous.

      AFFIRMED.




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