In United States v. Keller, --- F.4th ---, No. 23-656 (9th Cir. 2025), the Court affirmed Thomas Keller’s conviction and sentence on four counts of prescribing controlled substances outside the scope of professional practice.
Keller raised four claims: (1) the district court erred in denying his motion to suppress a journal found at his residence that was seized pursuant to a search warrant justified by neither probable cause nor the “plain view” doctrine; (2) the district court erred in not holding an evidentiary hearing on his suppression motion; (3) the charges against him violated the nondelegation doctrine; and (4) the district court erred in calculating his sentencing range under U.S.S.G. § 2D1.1 by relying on a drug conversion ratio found in the Sentencing Guidelines commentary.
I'm going to focus on (2) and (4).
As to the evidentiary hearing:
A district court is “require[d] . . . to conduct an evidentiary hearing when the moving papers filed in connection with a pre-trial suppression motion show that there are contested issues of fact relating to the lawfulness of a search.” But for moving papers to show that there are contested issues of fact warranting an evidentiary hearing, they must “allege facts with sufficient definiteness, clarity, and specificity to enable the trial court to conclude that contested issues of fact exist.” A simple desire to cross-examine agents that a movant has accused of being untruthful does not itself create grounds for an evidentiary hearing.
The Court found that Keller did not meet his burden here.
As to the sentencing issue, Keller's "challenge rests on the distinction between the Sentencing Guidelines and their accompanying commentary, and the reach of relatively recent case law addressing when courts may rely on Guidelines commentary."
Keller argues that the district court could not defer to the 6,700:1 ratio in Application Note 8 because the ratio is not a reasonable interpretation of an ambiguous Guideline under Kisor and Castillo. But we conclude that we need not and should not address whether the ratio is a permissible interpretation of the Guideline under Kisor because, in assessing the weight to be given to the commentary, the converted drug weight ratio for oxycodone is more properly regarded as part of the Guideline itself.[T]he Guideline covers oxycodone, U.S.S.G. § 2D1.1(c), Note B, it provides base offense levels for “Converted Drug Weight”, id. § 2D1.1(c), and it expressly directs that “‘Converted Drug Weight,’ for purposes of this guideline, refers to a nominal reference designation that is used as a conversion factor in the Drug Conversion Tables set forth in the Commentary below,” id. § 2D1.1(c), Note K. As drafted, the ratios in the drug conversion tables are effectively part of § 2D1.1 itself because this section of the Guidelines expressly incorporates them.Furthermore, and critically, although the “commentary is not subject to mandatory congressional review,” Castillo, 69 F.4th at 655, the 6,700:1 oxycodone ratio underwent the same notice-and-comment and congressional-review process as the Guideline itself. The Sentencing Commission submitted this ratio to Congress for review on May 1, 2003, as part of Amendment 657.
There is also some helpful language on sentencing errors not being harmless: “To establish harmlessness, the Government must show that ‘it is more probable than not’ that the error did not affect the sentence.”
