FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

MICAH JOEL AHKEEM IVERSON 

KELLY, AKA Iverson Kelly Micah 

Johel Ahkeem,

Defendant-Appellant.

No. 16-10460

D.C. No.

2:15-cr-00041-

GMN-NJK-1

OPINION

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, Chief District Judge, Presiding

Argued and Submitted September 15, 2017

San Francisco, California

Filed October 30, 2017

Before: Ronald M. Gould, Richard C. Tallman,

and Paul J. Watford, Circuit Judges.

Opinion by Judge Tallman
2 UNITED STATES V. KELLY

SUMMARY*

Criminal Law

The panel affirmed a conviction for selling and 

possessing with the intent to sell over 446 grams of ethylone, 

and dismissed the defendant’s challenge to his sentence. 

The panel rejected the defendant’s contention that the 

Drug Enforcement Administration violated the nondelegation doctrine by temporarily adding ethylone as a 

Schedule I controlled substance. The panel explained that 

the plain language of the Controlled Substances Act, as 

codified at 21 U.S.C. §§ 811(h) and 812(b), permits the DEA 

to make findings for a parent substance as a basis to 

temporarily schedule that substance and its isomers.

The panel rejected the defendant’s contention that the 

DEA violated due process by failing to provide adequate 

notice that ethylone was a controlled substance. The panel 

explained that the defendant received fair notice when the 

DEA filed the Notice and Order in the Federal Register.

The panel held that the rule of lenity does not apply 

because the text, history, and purpose of the Controlled 

Substances Act make unambiguous that Congress intended 

to empower the DEA to temporarily schedule isomers.

The panel held that because the intent of Congress is 

clear that the DEA has authority to temporarily schedule a 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. KELLY 3

parent substance and its isomers, the district court properly 

accorded Chevron deference to the agency interpretation.

The panel held that the defendant’s challenge to the 

district court’s criminal history calculation and resulting 

sentence is waived.

COUNSEL

Erica J. Choi (argued), Assistant Federal Public Defender; 

Rene L. Vallardes, Federal Public Defender; Office of the 

Federal Public Defender, Las Vegas, Nevada; for 

Defendant-Appellant.

Nancy M. Olson (argued), Assistant United States Attorney; 

Elizabeth O. White, Appellate Chief; Steven W. Myhre, 

Acting United States Attorney; United States Attorney’s 

Office, Las Vegas, Nevada; for Plaintiff-Appellee.

OPINION

TALLMAN, Circuit Judge:

Defendant-Appellant Micah Joel Ahkeem Iverson Kelly 

(“Kelly”) challenges the district court’s denial of his motion 

to dismiss the indictment charging him with distributing socalled “designer drugs.” Kelly entered a conditional plea of 

guilty to selling and possessing with the intent to sell over 

446 grams of ethylone under the street name “Ecstasy.” On 

appeal, Kelly argues he preserved the following issues: 

(1) the Drug Enforcement Administration (“DEA”) violated 

the non-delegation doctrine by failing to comply with the 

Controlled Substances Act, as codified at 21 U.S.C. 
4 UNITED STATES V. KELLY

§§ 811(h) and 812(b) in temporarily scheduling ethylone; 

(2) DEA violated due process by failing to provide adequate 

notice that ethylone was a controlled substance; (3) the rule 

of lenity applies because § 811(h) is ambiguous as to 

whether DEA may temporarily schedule unnamed isomers; 

(4) DEA’s temporary scheduling of ethylone is not entitled 

to deference under Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984); and 

(5) the district court erred in finding that his criminal history 

category was V, instead of IV, in violation of the Sentencing 

Guidelines. We have jurisdiction under 28 U.S.C. § 1291 

and we affirm as to the first four issues and dismiss as to the 

last, which we find barred by his partial appellate waiver.

I

Congress enacted the Controlled Substances Act 

(“CSA”) as part of the Comprehensive Drug Abuse 

Prevention and Control Act of 1970 to restrict the illegal 

trafficking of various substances found to pose a danger to 

the health and general welfare of the nation. Pub. L. No. 91-

513, § 101(2), 84 Stat. 1242 (codified at 21 U.S.C. 

§ 801(2)).1 The CSA makes it unlawful to knowingly 

manufacture, distribute, or possess any controlled substance 

except in a manner authorized by the CSA. §§ 841(a)(1), 

844(a). The CSA categorizes all controlled substances into 

five schedules. § 812.2 The initial schedules established by 

 1 All further statutory and regulatory citations are to Title 21 of the 

United States Code and Title 21 of the Code of Federal Regulations, 

unless otherwise noted.

2 A controlled substance is “a drug or other substance” that is 

included in Schedule I, II, III, IV, or V. § 802(6). “Control” is a term of 

art in the CSA, meaning “to add a drug or other substance . . . to a 

schedule.” § 802(5).
UNITED STATES V. KELLY 5

Congress are found at 21 U.S.C. § 812(c), and the current 

schedules are published in 21 C.F.R. Part 1308. “Violations 

involving schedule I substances carry the most severe 

penalties, as these substances are believed to pose the most 

serious threat to public safety.” Touby v. United States, 

500 U.S. 160, 162 (1991).

The CSA authorizes the Attorney General to add, 

remove, or transfer substances to, from, or between 

schedules. § 811. The Attorney General has delegated this 

authority to the Administrator of the DEA, who in turn has 

delegated it to the Deputy Administrator. 28 C.F.R.

§ 0.100(b). “When adding a substance to a schedule, the 

[DEA] must follow specified procedures.” Touby, 500 U.S. 

at 162. The DEA may add a drug to a schedule in one of two 

ways: permanently or temporarily.

A

To permanently schedule a drug, the DEA first must 

obtain a scientific and medical evaluation of the drug and a 

recommendation as to whether it should be controlled from 

the Secretary of Health and Human Services (“HHS”). 

§ 811(b). The DEA may not schedule the drug if the 

Secretary recommends against it. Id. Second, the DEA must 

consider eight statutory factors, including the drug’s actual 

or relative potential for abuse, scientific evidence of its 

pharmacological effect, the state of current scientific 

knowledge regarding the drug, the drug’s psychic or 

physiological dependence liability, and whether it is an 

immediate precursor of a drug that is already controlled. 

§ 811(c).

If the DEA wants to place the drug into Schedule I, it 

must also find that the drug has a high potential for abuse, 

no currently accepted medical use in treatment, and no 
6 UNITED STATES V. KELLY

accepted safe use under medical supervision. § 812(b)(1).3 

The DEA must then comply with the formal rulemaking 

provisions of the Administrative Procedure Act (“APA”), 

5 U.S.C. §§ 556–57. § 811(a). Lastly, it must issue a final 

rule adding the drug to 21 C.F.R. § 1308.11, which contains 

the current list of Schedule I substances. Id. This final rule, 

which concludes the permanent scheduling process, is 

subject to judicial review. § 877.

Because of these procedural requirements, it often takes

six to twelve months for the DEA to permanently schedule a 

new drug after the DEA identifies it. Touby, 500 U.S. at 163. 

This delay produced predictable results. “Drug traffickers 

were able to take advantage of this time gap by designing 

drugs that were similar in pharmacological effect to 

scheduled substances but differed slightly in chemical 

composition, so that existing schedules did not apply to 

them.” Id. “These ‘designer drugs’ were developed and 

widely marketed long before the Government was able to 

schedule them and initiate prosecutions.” Id.

B

To combat the designer drug problem and reduce the 

inherent regulatory delay, Congress amended the CSA in 

1984 to create an expedited procedure by which the DEA 

can temporarily schedule a new drug 30 days after 

identifying it if doing so is “necessary to avoid an imminent

hazard to the public safety.” § 811(h)(1); see Touby, 

500 U.S. at 163. A temporarily scheduled drug may only be 

 3 These three factors, in varying gradations, are used to categorize 

drugs into the other four schedules. For example, Schedule II drugs have 

a high potential for abuse, but they have a currently accepted medical 

use. § 812(b)(2).
UNITED STATES V. KELLY 7

placed into Schedule I, and only if the Secretary has not 

approved it for sale or exempted it for research under the 

Food, Drug, and Cosmetic Act (“FDCA”), 21 U.S.C. § 355. 

Id. Temporary scheduling under § 811(h) allows the DEA 

“to bypass, for a limited time, several of the requirements for 

permanent scheduling.” Touby, 500 U.S. at 163.

To find that a drug poses an imminent hazard to public 

safety justifying temporary scheduling, the DEA must 

consider only three of the eight factors required for 

permanent scheduling: (1) the drug’s history and current 

pattern of abuse; (2) the scope, duration, and significance of 

the abuse; and (3) what, if any, risk it poses to the public 

health. § 811(c)(4)–(6), (h)(3). In considering these factors, 

the DEA must consider the drug’s “actual abuse, diversion 

from legitimate channels, and clandestine importation, 

manufacture, or distribution.” § 811(h)(3). In addition, the 

DEA must find that it has a high potential for abuse, no 

currently accepted medical use in treatment, and no accepted 

safe use under medical supervision. § 812(b)(1).

Rather than comply with the APA formal rulemaking 

provisions attending permanent scheduling, the DEA must 

provide only 30-days’ notice of the proposed temporary 

scheduling in the Federal Register. § 811(h)(1)(A). The 

DEA must also transmit to the Secretary a 30-days’ notice of 

its intent to temporarily schedule the drug, and it must 

consider any comments the Secretary submits in response. 

§ 811(h)(1)(B), (h)(4). However, unlike permanent 

scheduling, the Secretary’s prior approval of the temporary 

scheduling is not required. Touby, 500 U.S. at 163. Lastly, 

the DEA must issue a final order adding the drug to 

21 C.F.R. § 1308.11(h). § 811(h)(1). The temporary 

scheduling order remains valid for two years, during which 

time the DEA presumably will initiate permanent scheduling 
8 UNITED STATES V. KELLY

proceedings, in which case the order may be extended for an 

additional year. § 811(h)(2). A temporary scheduling order 

is not subject to judicial review, except (as here) when 

challenged by a criminal defendant in defense to 

prosecution. § 811(h)(6); Touby, 500 U.S. at 168.

If the drug is later permanently scheduled, it is removed 

from § 1308.11(h) and added to § 1308.11(b)–(g), 

depending on whether it is designated as an opiate, opium 

derivative, hallucinogenic substance, depressant, stimulant, 

or cannabimimetic agent. See § 811(h)(5).

C

On November 7, 2013, the DEA notified the Secretary 

by letter of its intent to temporarily schedule ten synthetic 

cathinones, including butylone, because doing so was 

necessary to avoid an imminent hazard to the public safety. 

Synthetic cathinones are recreational drugs popular with 

some youth and young adults in the United States. They 

produce pharmacological effects substantially similar to 

MDMA, cathinone, methcathinone, amphetamine, and 

methamphetamine. Synthetic cathinones are commonly 

marketed on the street as “Ecstasy” or “bath salts,” sold in 

the form of tablets and powders, and ingested by swallowing 

or snorting.

The DEA’s letter to the Secretary did not mention the ten 

synthetic cathinones’ isomers4 or salts. On December 4, 

2013, the Secretary advised the DEA that there were no 

investigational or approved new drug applications for the ten 

 4 An isomer is “any of two or more chemical compounds having the 

same constituent elements in the same proportion by weight but differing 

in physical or chemical properties because of differences in the structures 

of their molecules.” Isomer, Webster’s New College Dictionary (2009).
UNITED STATES V. KELLY 9

synthetic cathinones and that HHS had no objection to their 

temporary placement in Schedule I. On January 28, 2014, 

the DEA published in the Federal Register a Notice of its 

intent to temporarily schedule the ten synthetic cathinones, 

along with their “optical, positional, and geometric isomers, 

salts and salts of isomers.” On March 7, 2014, the DEA 

issued a final Order temporarily adding the ten synthetic 

cathinones to Schedule I at § 1308.11(h)(19)–(28). As 

relevant here, the Order temporarily added “[b]utylone, its 

optical, positional, and geometric isomers, salts and salts of 

isomers” to Schedule I at § 1308.11(h)(22).5

II

A

In January 2015, a Nevada drug task force learned that 

Kelly was selling large quantities of MDMA6, or “Ecstasy,” 

in the Las Vegas area. An undercover officer arranged to 

purchase the MDMA from Kelly, and Kelly sold 

approximately 140 grams of powder to the officer in two

separate transactions. During the third transaction, Kelly 

was arrested possessing another 306 grams. Forensic 

analysis later revealed that the powder was ethylone, not 

 5 Three years later, after the events in this case, the DEA issued a 

final Rule permanently scheduling the ten synthetic cathinones. See 

82 Fed. Reg. 12171 (Mar. 1, 2017) (codified at 21 C.F.R. 

§ 1308.11(d)(59)–(68)). Currently, butylone and its optical, positional, 

and geometric isomers, salts, and salts of isomers are designated as 

Schedule I(c) hallucinogenic substances listed in the regulations at 

§ 1308.11(d)(62).

6 “3, 4-methylenedioxy-methamphetamine (MDMA) is a synthetic 

drug that alters mood and perception.” National Institute on Drug Abuse,

What is MDMA?, https://www.drugabuse.gov/publications/drugfacts/m

dma-ecstasymolly (last visited Oct. 6, 2017).
10 UNITED STATES V. KELLY

MDMA. A grand jury indicted Kelly on three counts of 

distributing and possessing with intent to distribute 

“Ethylone, a Schedule I controlled substance,” in violation 

of 21 U.S.C. § 841(a)(1) and (b)(1)(C).

It is undisputed here that ethylone is a positional isomer 

of butylone. An isomer is a molecule with the same 

chemical formula as another molecule, but its atoms are 

arranged in a different sequence. For example, butylone and 

ethylone share the chemical formula C12H15NO3, but they 

differ in the location of a functional group:

Based on how the atoms are arranged, isomers can be 

classified as chain, functional, positional, conformational, 

optical, or geometric. See A Brief Guide to Types of 

Isomerism in Organic Chemistry, http://www.compound

chem.com/2014/05/22/typesofisomerism/ (last visited July 

24, 2017). Not all isomers of a scheduled drug are illegal, 

however. Thus, Schedule I categorically controls all 

permanently scheduled drugs’ optical isomers only. An 

exception exists if the permanently scheduled drug is a 

hallucinogenic substance listed in § 1308.11(d), in which 

case Schedule I categorically controls its optical, positional, 

and geometric isomers. See §§ 802(14), 812(c)(I); 21 C.F.R. 

§ 1300.01(b). Permanently scheduled hallucinogenic 

substances are called “Schedule I(c)” drugs, which refers to 
UNITED STATES V. KELLY 11

the initial statutory schedule in which they are placed. 

§ 812(c)(I)(C).

B

On the morning that his trial was set to begin, Kelly 

moved to dismiss the indictment on the ground that ethylone 

was not a Schedule I controlled substance. He did not 

contest for purposes of his motion, and does not contest on 

appeal, that ethylone is a positional isomer of butylone. He 

argued, however, that ethylone was not properly scheduled 

because (1) the DEA failed to comply with §§ 811(h) and 

812(b)’s procedural requirements; (2) the DEA did not 

provide adequate notice that ethylone was a controlled 

substance; (3) § 811(h) was ambiguous as to whether the 

DEA was authorized to temporarily schedule unnamed 

isomers without identifying or making the requisite findings 

for them, and the rule of lenity required the court to resolve 

that ambiguity in Kelly’s favor; and (4) the DEA’s 

temporary scheduling of ethylone was arbitrary and 

capricious.

A magistrate judge issued a report and recommendation

denying Kelly’s motion, which the district court adopted in 

full. The district court found that § 811(h) unambiguously 

authorized the DEA to schedule unnamed isomers. It 

declined to apply the rule of lenity because the DEA’s Order 

was not a criminal statute, but rather an administrative 

regulation that was entitled to Chevron deference. Applying 

Chevron, the court upheld the DEA’s Order because 

(1) § 811(h) was unambiguous that the DEA could schedule 

ethylone as an unnamed positional isomer of butylone; and 

(2) the DEA’s action was not arbitrary or capricious. Lastly, 

the court found that Kelly had adequate notice that ethylone 

was a controlled substance because the DEA’s Notice and 
12 UNITED STATES V. KELLY

Order expressly included butylone’s “optical, positional, and 

geometric isomers.”7

C

After his motion to dismiss was denied, Kelly pleaded 

guilty to all three counts in the indictment under a 

conditional plea agreement that reserved his right to bring 

this appeal of the district court’s denial of his motion to 

dismiss. In support of his guilty plea, Kelly admitted to 

selling and possessing with the intent to sell over 446 grams 

of ethylone. He also agreed that the district court would 

determine his criminal history category under the Sentencing 

Guidelines. He stipulated to a recommended sentence of 

57 months “so long as the Criminal History Category [was] 

IV or less.” If the “Criminal History Category [was] V or 

greater,” he stipulated that his recommended sentence would 

be at the “low-end of the Sentencing Guidelines range

determined by the Court.” In addition, Kelly expressly 

waived his “right to appeal any sentence imposed within or 

below the applicable Sentencing Guideline range as 

determined by the Court,” as well as “the manner in which 

the Court determined that sentence.”

At sentencing, the district court adopted the Presentence 

Report, found a criminal history category of V, and 

sentenced Kelly to 70 months’ imprisonment at the low end 

of his applicable Guidelines range. After judgment was 

 7 The district court also denied Kelly’s request for an evidentiary 

hearing to present expert testimony that “a substance’s isomer does not 

necessarily have the same effects and properties as the substance itself.” 

The court held that such a hearing was not necessary because it was 

sufficient, for purposes of the motion to dismiss, that Kelly agreed 

ethylone was a positional isomer of butylone.
UNITED STATES V. KELLY 13

entered, Kelly timely appealed the denial of his motion to 

dismiss the indictment and his sentence.

III

We have jurisdiction under 28 U.S.C. § 1291. “We 

review the sufficiency of an indictment de novo.” United 

States v. Kaplan, 836 F.3d 1199, 1216 (9th Cir. 2016). “We 

review de novo a district court’s decision whether to dismiss 

a charge in an indictment based on its interpretation of a 

federal statute.” United States v. Olander, 572 F.3d 764, 766 

(9th Cir. 2009). We review de novo both an “agency’s 

interpretation or application of a statute,” Snoqualmie Indian 

Tribe v. FERC, 545 F.3d 1207, 1212 (9th Cir. 2008), and the 

constitutionality of an agency’s regulation, see Gonzalez v. 

Metro. Transp. Auth., 174 F.3d 1016, 1018 (9th Cir. 1999). 

And we review de novo whether a defendant has waived his 

appeal rights pursuant to a plea agreement. United States v. 

Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010).

IV

Federal Rule of Criminal Procedure 12(b) allows a 

defendant to file a pretrial motion to dismiss an indictment 

for failure to state an offense if the motion “can be 

determined without a trial on the merits.” Fed. R. Crim. P. 

12(b)(3)(B)(v). “A motion to dismiss is generally capable of 

determination before trial if it involves questions of law 

rather than fact.” United States v. Nukida, 8 F.3d 665, 669 

(9th Cir. 1993) (quotations omitted). Because Kelly’s 

challenges to the indictment are based on legal issues and he 

does not dispute that ethylone is a positional isomer of 

butylone, we may resolve the issues here without intruding 

upon the “province of the ultimate finder of fact.” Id. 

(quotation omitted); see United States v. Covington, 

395 U.S. 57, 60 (1969). In determining whether an 
14 UNITED STATES V. KELLY

indictment charges a cognizable offense, we are bound by 

the four corners of the indictment, must accept the truth of 

the allegations in the indictment, and cannot consider 

evidence that does not appear on the face of the indictment. 

United States v. Lyle, 742 F.3d 434, 436 (9th Cir. 2014); 

United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996).

A

Kelly argues that the DEA did not place ethylone into 

Schedule I as a matter of law because §§ 811(h) and 812(b) 

require that the DEA name and make findings for each 

individual isomer it intends to temporarily schedule. He 

contends that the DEA’s failure to do so violated the 

Constitution’s non-delegation doctrine. Kelly’s argument is 

a misreading of the CSA. The plain language of the statute 

permits the DEA to make findings for a parent substance as 

a basis to temporarily schedule that substance and its 

isomers. The DEA properly made findings for butylone and 

provided notice covering butylone and its isomers as 

required by §§ 811(h) and 812(b). In following the 

congressional mandate, we hold the DEA did not violate the 

non-delegation doctrine.

The Constitution states that “[a]ll legislative Powers 

herein granted shall be vested in a Congress of the United 

States.” U.S. Const., art. I, § 1. The non-delegation doctrine 

provides that “Congress may not constitutionally delegate its 

legislative power to another branch of Government.” Touby, 

500 U.S. at 165. “It is clear that in [§ 811(h)] and [§ 812(b)] 

Congress has placed multiple specific restrictions on the 

[DEA]’s discretion to define criminal conduct.” Id. at 167. 

“These restrictions satisfy the constitutional requirements of 

the nondelegation doctrine.” Id.
UNITED STATES V. KELLY 15

Section 812(b) prohibits any substance from being 

placed into Schedule I unless the DEA finds that it has (1) a 

high potential for abuse, (2) no currently accepted medical 

use in treatment, and (3) no accepted safe use under medical 

supervision. § 812(b)(1). Section 811(h) requires that, to 

temporarily schedule a drug, the DEA must consider (4) the 

history and current pattern of the drug’s abuse, (5) the scope, 

duration, and significance of the abuse, and (6) what risk, if 

any, the drug poses to the public health. § 811(c)(4)–(6), 

(h)(3). In doing so, the DEA “shall be required to consider” 

the drug’s “actual abuse, diversion from legitimate channels, 

and clandestine importation, manufacture, or distribution.” 

§ 811(h)(3).

The DEA must consider these factors “with respect to 

each drug or other substance proposed to be controlled.” 

§ 811(c). The effect of scheduling a substance in Schedule 

I(c) includes:

Unless specifically excepted or unless listed 

in another schedule, any material, compound, 

mixture, or preparation, which contains any 

quantity of the [parent] hallucinogenic 

substances, or which contains any of their 

salts, isomers, and salts of isomers whenever 

the existence of such salts, isomers, and salts 

of isomers is possible within the specific 

chemical designation[.]

21 U.S.C. § 812, Schedule I(c). Under this section, if the 

required findings are made for a parent hallucinogenic 

substance, then the scheduling also includes its isomers. 

21 U.S.C. § 812, Schedule I(c); 21 C.F.R. § 1308.11(d). 

Substances are temporarily scheduled under Schedule I. 

§ 811(h)(1). As it did for butylone, if the DEA makes 
16 UNITED STATES V. KELLY

findings for the parent hallucinogenic substance, that 

substance’s isomers may be included in the emergency 

scheduling. Once the findings have been made, the DEA 

may not issue an order temporarily scheduling a drug 

without publishing in the Federal Register a 30-day notice of 

its intent “to issue such [an] order and the grounds upon 

which such order is to be issued.” § 811(h)(1)(A) (emphasis 

added).

The DEA did not violate the non-delegation doctrine 

when it temporarily scheduled ethylone. The agency made 

specific findings as to the parent drug, butylone. For 

example, the Notice and Order found that the ten synthetic 

cathinones “can cause acute health problems leading to 

emergency department admissions, violent behaviors 

causing harm to self or others, or death.” The DEA also 

found that “the possibility of death for individuals abusing 

[the ten synthetic cathinones] indicates that these substances 

are serious public health threats,” and it provided examples 

of two individuals who died after ingesting butylone or a 

mixture containing butylone and another controlled 

substance. Although Kelly contends otherwise, the DEA 

was not required to make specific findings for every isomer 

of butylone. The findings for butylone are sufficient to 

satisfy the requirements for temporary listing under § 811(h) 

because under Schedule I findings regarding the parent 

substance are sufficient to justify the scheduling of its 

isomers.

Thus, by complying with §§ 811(h) and 812(b)’s 

“specific restrictions on [its] discretion to define criminal 

conduct,” the DEA’s temporary scheduling of ethylone did 

not amount to an exercise of legislative power in violation of 

the non-delegation doctrine. Touby, 500 U.S. at 167; see 

also Gonzales v. Oregon, 546 U.S. 243, 259–60 (2006) 
UNITED STATES V. KELLY 17

(recognizing that the CSA gives the DEA “limited powers, 

to be exercised in specific ways,” that “[t]o exercise [its] 

scheduling power, the [DEA] must follow a detailed set of 

procedures,” and that the CSA is “specific as to the manner 

in which the [DEA] must exercise this authority”); Chrysler 

Corp. v. Brown, 441 U.S. 281, 303 (1979) (“[A]gency 

discretion is limited not only by substantive, statutory grants 

of authority, but also by the procedural requirements which 

assure fairness and mature consideration of rules of general 

application.” (quotation omitted)). The DEA properly 

exercised its limited powers as defined by Congress to 

temporarily list butylone and its isomers, including ethylone.

B

When the DEA filed the Notice and Order in the Federal 

Register, Kelly received fair notice that ethylone was a 

controlled substance. The Fifth Amendment provides that 

“[n]o person shall . . . be deprived of life, liberty, or property, 

without due process of law.” U.S. Const. amend. V. “It is a 

basic principle of due process” that the law must provide a 

“person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly.” 

Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). Due 

process “mandate[s] that no individual be forced to 

speculate, at peril of indictment, whether his conduct is 

prohibited.” Dunn v. United States, 442 U.S. 100, 112 

(1979); see also Lanzetta v. State of New Jersey, 306 U.S. 

451, 453 (1939) (“All are entitled to be informed as to what 

the State commands or forbids.”). To that end, “the terms of 

a penal statute creating a new offense must be sufficiently 

explicit to inform those who are subject to it what conduct 

on their part will render them liable to its penalties.” 

Lanzetta, 306 U.S. at 453 (quotation omitted). “Congress 

has provided that proper publication in the Federal Register 
18 UNITED STATES V. KELLY

shall act as constructive notice to all of those affected by the 

regulation in question.” United States v. Wilhoit, 920 F.2d 

9, 10 (9th Cir. 1990) (citing 44 U.S.C. § 1507).

Kelly had notice through the DEA’s temporary 

scheduling of butylone and its isomers that his drug-selling 

conduct was forbidden. The agency fully complied with its 

statutory authority granted by Congress to address this 

emergency prompted by synthetic compounds like Ecstasy, 

which endanger the public. Here, the DEA’s Order stated 

that “[a]s a result of this order, the . . . criminal sanctions 

applicable to schedule I controlled substances will be 

imposed on persons who handle (manufacture, distribute, 

import, export, engage in research, conduct instructional 

activities, and possess) . . . [the ten] synthetic cathinones.” 

Further, under the heading “Criminal Liability,” it warned 

that “[a]ny activity involving [the ten synthetic cathinones] 

not authorized by, or in violation of the CSA, occurring as 

of March 7, 2014, is unlawful, and may subject the person to 

. . . criminal sanctions.” More specifically, the Order

advised that “[b]utylone, its optical, positional, and 

geometric isomers, salts and salts of isomers,” were 

temporarily scheduled under Schedule I. The DEA’s Notice 

contained substantially similar language.

Through the Federal Register, Kelly had public notice 

that distributing Ecstasy in the form of ethylone could result 

in criminal sanctions. See Wilhoit, 920 F.2d at 10.

C

The rule of lenity does not apply to Kelly’s case. “The 

rule of lenity requires ambiguous criminal laws to be 

interpreted in favor of the defendants subjected to them.” 

United States v. Santos, 553 U.S. 507, 514 (2008) (plurality 

opinion). It derives from the fundamental principle that “no 
UNITED STATES V. KELLY 19

man shall be held criminally responsible for conduct which 

he could not reasonably understand to be proscribed.” 

United States v. Harriss, 347 U.S. 612, 617 (1954).

The rule of lenity “only applies if, after considering text, 

structure, history, and purpose, there remains a grievous 

ambiguity or uncertainty in the statute such that the Court 

must simply guess as to what Congress intended.” Barber v. 

Thomas, 560 U.S. 474, 488 (2010) (citation and quotations 

omitted). “In these circumstances—where text, structure, 

and history fail to establish that the Government’s position 

is unambiguously correct—we apply the rule of lenity and 

resolve the ambiguity in [the defendant’s] favor.” United 

States v. Granderson, 511 U.S. 39, 54 (1994); People v. 

Materne, 72 F.3d 103, 106 (9th Cir. 1995) (“Only where the 

defendant’s interpretation is unreasonable does the rule of 

lenity not apply.”).

The text, history and purpose of the CSA paint a clear 

picture that Congress intended to empower the DEA to 

temporarily schedule isomers. The plain language of §§ 811 

and 812 discusses isomers and their scheduling in 

conjunction with the parent substances. The CSA defines an 

isomer for Schedule I(c) under § 802(14). The regulations 

further clarify what an isomer is under 21 C.F.R. 

§ 1300.01(b). These definitions refer to Schedule I generally 

and do not purport to limit isomers to the DEA’s permanent 

scheduling authority. In addition, when the DEA schedules 

a parent substance under Schedule I(c), unless otherwise 

prohibited, that scheduling also includes its isomers. § 812 

Schedule I(c). The plain language of the CSA clearly 

contemplates the scheduling of isomers under both the 

temporary and permanent scheduling authority.

History also demonstrates that isomers can be 

temporarily listed. In 2000 Congress ordered the DEA to 
20 UNITED STATES V. KELLY

temporarily list the performance enhancing drug “GHB” 

“together with its . . . isomers” in the same way that the DEA 

always does under § 811(h), confirming its approval of the 

DEA’s actions. See Pub. L. No. 106-172, § 3(a), 114 Stat. 

7, 8 (Feb. 18, 2000). Dozens of drugs have been temporarily 

listed with their isomers since 1984, and 16 are listed now. 

21 C.F.R. § 1308.11(h).

Finally, the purpose of the DEA’s temporary scheduling 

power is to stop dangerous designer drugs as they are 

developed. The 1984 amendments giving the DEA the 

temporary scheduling power clarified the definition of 

“isomer” to avoid the “isomer defense”—when clever drug 

designers switch an isomer in an effort to avoid prosecution. 

S. Rep. No. 98-225, at 263 (1983). Congress sought to avoid 

“clandestine manufacturers [attempting] to circumvent the 

law by manufacturing positional and geometric isomers of 

hallucinogens in schedule I.” Id. Congress unambiguously 

granted the temporary scheduling authority to prohibit 

conduct, like Kelly’s, of distributing dangerous substances 

that have yet to be permanently listed. If the DEA could not 

temporarily schedule isomers of parent substances, the entire 

emergency scheduling scheme would collapse. The DEA 

would be in a never-ending inquiry to temporarily schedule 

every single isomer and make findings on every chemical 

variation of a dangerous drug. It is highly unlikely the 

agency could keep up with the pace of clandestine drug 

manufacturers.

The plain language, history, and purpose of temporary 

scheduling authority make congressional intent clear. The 
UNITED STATES V. KELLY 21

rule of lenity only applies to “ambiguous criminal laws.” 

Santos, 553 U.S. at 514. There is no ambiguity here.8

D

The DEA’s decision to temporarily schedule ethylone

was authorized pursuant to its temporary scheduling power 

and a clear directive from Congress. The district court 

properly found the DEA’s temporary scheduling authorized 

at Chevron step one.

Chevron sets forth a two-step test for reviewing an 

agency’s interpretation of a federal statute. Chevron, U.S.A., 

Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 

837, 842–44 (1984). Under Chevron step one, the court 

must determine “whether Congress has directly spoken to 

the precise question at issue.” Id. at 842. “If the intent of 

Congress is clear, that is the end of the matter,” and the court 

“must give effect to the unambiguously expressed intent of 

Congress.” Id. at 842–43. However, “if the statute is silent 

or ambiguous with respect to the specific issue,” the court 

must proceed to the second Chevron step. Id. at 843. Under 

Chevron step two, the court must uphold the agency’s 

interpretation unless it is “arbitrary, capricious, or manifestly 

contrary to the statute.” Id. at 844.

The plain language of the CSA evinces Congress’ intent 

to permit the DEA to temporarily schedule a parent 

substance and its isomers, such as butylone and ethylone. 

First, under the permanent scheduling authority, if the drug 

 8 Kelly argues the rule of lenity trumps the deference we give to the 

agency under Chevron. Mujahid v. Daniels, 413 F.3d 991, 999 (9th Cir. 

2005) (the Supreme Court has not “address[ed] when the rule of lenity 

takes priority over Chevron deference.”). As we find that the rule of 

lenity does not apply, we do not address this argument.
22 UNITED STATES V. KELLY

is in a subcategory of Schedule I (a through c) then the DEA 

is only required to make findings regarding the “parent” 

substance and then permits the scheduling of the isomers of 

that parent. § 812 Schedule I(c). In conjunction with this 

authority, the statute defines isomers: “[a]s used in schedule

I(c), the term ‘isomer’ means any optical, positional, or 

geometric isomer.” 21 U.S.C. § 802(14). In defining and 

discussing isomers the CSA does not confine them to 

permanent scheduling, rather this applies to the DEA’s 

overall scheduling authority, permanent and temporary. 

Congress was contemplating the scheduling of isomers 

throughout the CSA, not only in their permanent scheduling.

The temporary scheduling authority is broader and more 

efficient than permanent scheduling. The temporary 

authority is intended to permit the DEA to react quickly to 

new drugs on the market that present a threat to human 

health. S. Rep. No. 98-225, at 263–64 (1983). In order to 

properly address this threat, Congress gave the DEA the 

power to schedule threatening substances more efficiently, 

but only for a two-year period. § 811(h)(2). The agency 

need only make three findings in order to temporarily 

schedule a substance, which makes it less burdensome to 

quickly schedule dangerous substances. § 811(h)(3). 

Congress granted this broad authority to schedule drugs and 

their isomers to expedite the scheduling process to avoid 

limiting law enforcement actions against traffickers and 

creating a “serious health problem.” S. Rep. No. 98-225, at 

264 (1983).

The intent of Congress is clear that the DEA has 

authority to temporarily schedule a parent substance and its 

isomers. Our inquiry ends at the first step of Chevron. 

467 U.S. at 842. The district court properly accorded 

Chevron deference to the agency interpretation.
UNITED STATES V. KELLY 23

E

Kelly’s plea agreement clearly and unambiguously 

waived his right to appeal the very sentencing issue he raises 

here. Kelly does not contend that his waiver of this right was 

unknowing or involuntary. See United States v. Speelman, 

431 F.3d 1226, 1229 (9th Cir. 2005); see also United States 

v. Arzate-Nunez, 18 F.3d 730, 737 (9th Cir. 1994) (“A 

defendant who enters a conditional guilty plea . . . must state 

in writing any issues he wishes to reserve for appeal and may 

lose the right to appeal issues not so expressly reserved.”).9 

As Kelly fails to argue that his unambiguous waiver of his 

right to appeal was involuntary, the plea agreement controls 

on this issue and we hold his sentencing challenge was 

waived.

V

We affirm the district court’s denial of Kelly’s motion to 

dismiss the indictment; affirm Kelly’s conviction; and 

dismiss Kelly’s challenge to the district court’s criminal 

history category calculation and resulting 70-month 

sentence.

AFFIRMED in part, DISMISSED in part.

 9 Kelly also argues, for the first time in his reply brief, that he is 

released from his appeal waiver because the Government breached the 

plea agreement. We decline to consider this argument because Kelly 

waived it by failing to raise it in his opening brief. See United States v. 

Alcan Elec. & Eng’g, Inc., 197 F.3d 1014, 1020 (9th Cir. 1999).