Defendant's conviction for conspiracy to manufacture and distribute ecstasy are affirmed where: 1) substantive collateral attacks on permanent scheduling orders were impermissible in criminal cases where defendants' sentences would be determined by those scheduling orders; and 2) the district court properly denied defendant's motion to dismiss the indictment because it tracked the language of the conspiracy statute, identified a location and co-conspirators, and alleged the purpose of the conspiracy. However, defendant's sentence is vacated where the district court made inadequate findings to justify its reliance on a temporary amendment to U.S.S.G. section 2D1.1 that increased ecstasy-related penalties.
Argued and Submitted November 3, 2009
Filed January 5, 2010
Opinion by Judge Smith
Benjamin L. Coleman and Ethan A. Baloch, Coleman & Baloch, LLP, San Diego, CA
Bruce R. Castetter, Todd W. Robinson and Stewart M. Young, Assistant United States Attorneys, San Diego, CA