Did you ever want to learn all about how drugs get on the federal schedules?
If so, United States v. Kelly, --- F.3d ---, No. 16-10460 (9th Cir. 2017), is the case for you.
Long story short, the defendant moved to dismiss the indictment against him, arguing the substance he possessed, ethylone, was not properly scheduled. The district court denied the motion and the Ninth affirmed on a conditional-plea appeal.
The analysis has to do with the fact that 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. In this case, ethylone was an isomer of a parent substance that was properly scheduled.
There is also some discussion of Chevron deference.
If you have a designer drug case (or secretly wish you were a chemist), you should probably read this opinion.
