United States v. Hurley

United States Court of Appeals
For the First Circuit
No. 15-2541
UNITED STATES OF AMERICA,
Appellee,
v.
KYLE HURLEY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph N. Laplante, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Jeffrey M. Brandt, with whom Robinson & Brandt, P.S.C. was on
brief, for appellant.
Seth R. Aframe, Assistant United States Attorney, with whom
Emily Gray Rice, United States Attorney, was on brief, for
appellee.
November 23, 2016
TORRUELLA, Circuit Judge. Kyle Hurley pleaded guilty
to conspiracy to distribute, and possess with the intent to
distribute, controlled substances. Hurley stipulated to
possession of 1,451.7 kilograms of synthetic cannabinoid product,
which consisted of the chemicals XLR11 and AB-FUBINACA sprayed
onto plant leaves. After a sentencing hearing, the district court
sentenced Hurley to 114 months of imprisonment. Hurley appeals
his sentence.
I. BACKGROUND
A. Factual Background
1. Hurley's Arrest
Early in 2014, undercover officers started purchasing
synthetic cannabinoid products from convenience stores supplied by
Robert Costello. Hurley was Costello's supplier, and, after
undercover officers asked Costello if he could supply them with
large quantities of product, Costello agreed to introduce the
undercover officers to Hurley. At the meeting, Hurley agreed to
provide fifteen kilograms of synthetic cannabinoid product for
$7,500. Costello retrieved and delivered the product, and Hurley
called one of the undercover officers to confirm that he was happy
with the product. Thereafter, Hurley participated in a series of
recorded discussions with the undercover officers to arrange a
larger transaction, and ultimately he provided the officers with
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approximately 1,100 kilograms of synthetic cannabinoid product in
exchange for approximately $500,000.
Officers arrested Hurley after he picked up the money.
Following his arrest, search warrants were executed at Costello's
home in Lawrence, Massachusetts, at a garage on property owned by
Hurley's relative in Seabrook, New Hampshire, and at a location in
Epping, New Hampshire where Hurley manufactured the product. At
these locations, officers discovered more synthetic cannabinoid
product.
2. Hurley's Product
Synthetic cannabinoid products are created by mixing an
organic "carrier" medium, typically an herb-like substance such as
damiana leaves,1 and a synthetic compound. Once manufactured, the
final product is intended to resemble marihuana and is typically
smoked in pipes or joints and can also be made into tea. The
leaves in the product are inert, so the psychoactive effect on the
user derives exclusively from the chemical sprayed onto the leaves.
Synthetic cannabinoid products, in general, can have similar
psychological and physiological effects to marihuana. Hurley made
his product by placing inert, non-narcotic leaves in a cement
1 The damiana plant grows in subtropical regions of the Americas
and Africa and is widely used in traditional medicine and as a
food flavoring. Catherine E. Ulbricht, Natural Standard Herb &
Supplement Guide 279 (2010).
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mixer, spraying the leaves with two chemicals, AB-FUBINACA and
XLR11, and then applying acetone to the product to dry it out.
B. Procedural History
Hurley pleaded guilty to conspiracy to distribute, and
possess with the intent to distribute, controlled substances. The
presentence report attributed 1,451.7 kilograms of synthetic
cannabinoid product to Hurley, and he did not contest the amount.
The district court held a sentencing hearing, at which a
significant issue was whether Hurley's product was most similar to
tetrahydrocannabinol ("THC") or marihuana.
The United States Sentencing Guidelines (the
"Guidelines") provide "Drug Equivalency Tables," which allow a
given quantity of a drug to be converted to an "equivalent" weight
of marihuana. U.S.S.G. § 2D1.1 cmt. n.8(D). This marihuana
equivalent is then used to calculate a defendant's base offense
level. Id. § 2D1.1 cmt. n.8(A).
Because the Guidelines do not provide a marihuana
equivalent ratio for AB-FUBINACA and XLR11 (or other synthetic
cannabinoids), the district court had to determine which listed
drug was "most closely related" to those chemicals -- marihuana or
THC. Id. § 2D1.1, cmt. n.6. The "Schedule I Marihuana" table
gives a marihuana equivalent ratio of 1:1 for marihuana and 1:167
for THC. Id. § 2D1.1, cmt. n.8(D). Thus, Hurley would be
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responsible for the equivalent of 1,451.7 kilograms of marihuana
if the proper comparator was marihuana but 242,433.9 (1,451.7 times
167) kilograms of marihuana if the proper comparator was THC.
Hurley contended that marihuana was the proper
comparator. He argued, first, that marihuana was the correct
comparator because prior publications by the Drug Enforcement
Agency ("DEA") compared synthetic cannabinoids to marihuana, not
THC. Second, Hurley argued that the district court should not
impose the 1:167 ratio because there was no empirical basis for
the Guidelines' conversion rate. The Government asserted that THC
was the correct comparator, and it introduced expert reports from
a DEA pharmacologist, Dr. Jordan Trecki, to support its conclusion.
Based on animal studies, Dr. Trecki's reports concluded that AB-
FUBINACA and XLR11 have "subjective effects that are substantially
similar to the effects of THC" and that they are "at least as
potent, if not more potent than THC."
The district court ruled that THC was the appropriate
comparator drug, even though it considered the recommended
sentence to be "an anomaly." It relied on Dr. Trecki's
conclusions, the persuasive precedent from other district courts
using this conversion rate, and the fact that a different defendant
in the case was previously sentenced using THC as the comparator,
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so disregarding the rate in this case would create an "inherent
sentencing disparity."
Because 1 kilogram of THC is equivalent to 167 kilograms
of marihuana under the Guidelines, the district court found that
Hurley was responsible for 242,434 kilograms of marihuana,
resulting in a base offense level of 38. The district court also
ruled that Hurley was subject to a four-level upward adjustment
for being a leader of criminal activity involving five or more
people and a three-level downward adjustment for his acceptance of
personal responsibility, resulting in a total offense level of 39.
This offense level, in combination with Hurley's criminal history
category of II, yielded a Guidelines range of 292-365 months of
imprisonment. This was reduced to the statutory maximum of 240
months. For reasons unrelated to the 1:167 ratio, the district
court ruled that it would make a downward departure. The
Government then sought a sentence of 144 months, but the district
court imposed a sentence of 114 months, citing the harshness of
the 1:167 conversion ratio as a reason for varying the sentence.
II. ANALYSIS
Relying on the dissent in United States v. Ramos, 814
F.3d 910 (8th Cir. 2016) (Bright, J., dissenting in part), Hurley
argues that marihuana, rather than THC, was the proper comparator
for the synthetic cannabinoids he possessed because -- like
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marihuana and unlike THC -- his product contained large quantities
of plant matter. Hurley, however, did not make this argument in
the district court. He instead attempted to rebut Dr. Trecki's
testimony using prior publications by the DEA. Hurley maintains
that he argued for marihuana rather than THC as the comparator in
the district court. That is true, but he did not make the specific
argument made here, and "a general objection" is "not sufficient
to give the district court notice of the specific issue raised" on
appeal. United States v. Ríos-Hernández, 645 F.3d 456, 462 (1st
Cir. 2011) (citing United States v. Ahrendt, 560 F.3d 69, 76 (1st
Cir. 2009)). We therefore review only for plain error. See
United States v. McDonald, 804 F.3d 497, 503 (1st Cir. 2015)
("Because [the defendant] raises the argument . . . for the first
time on appeal, we review this part of his argument for plain
error."). Under the plain error standard, Hurley must prove that
the district court made "(1) an error, (2) that is clear or
obvious, (3) which affects his substantial rights (i.e., the error
made him worse off), and which (4) seriously impugns the fairness,
integrity, or public reputation of the proceeding." Id. (quoting
United States v. Correa-Osorio, 784 F.3d 11, 18 (1st Cir. 2015)).
Here, Hurley cannot show that any error was "clear or
obvious." He cites only to the dissent in Ramos to support his
argument that marihuana is the proper comparator because it, like
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his product, contains plant matter. But the majority in Ramos
rejected that argument, reasoning that "while synthetic
cannabinoids, such as XLR–11, are listed in Schedule I," the
product mixture sold by the defendants was "not independently
listed on any drug schedule." Ramos, 814 F.3d at 919. Plain
error presents a "high bar," Ríos-Hernández, 645 F.3d at 463, and
it is not obvious that the dissent in Ramos, rather than the
majority, has the better argument.2
Hurley also asserts that the district court erred in
applying the 1:167 ratio "even if synthetic cannabinoid product
were somehow the equivalent of pure THC." In support, he cites
United States v. Hossain, No. 15-cr-14034, 2016 WL 70583 (S.D.
Fla. Jan. 5, 2016). There, the district court determined that THC
was the best comparator for XLR11. Id. at *4. But it found that
the 1:167 ratio had "no cognizable basis" and so varied the
sentence downward using a 1:7 ratio offered by a defense expert.
Id. at *4-6. Following this reasoning, Hurley asserts that "the
district court erred in failing to apply a one-to-seven ratio" and
in not converting "[t]he stipulated 1,451 kilograms" of synthetic
2 We take no position on the outcome under a different standard
of review or where a defendant makes a different argument than
Hurley made.
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cannabinoid product "to 10,157 kilograms [of] marijuana
equivalence, for a base offense level of 34."
Hurley's argument is without merit. District courts
"must start out by calculating the proper Guidelines range -- a
step so critical that a calculation error will usually require
resentencing." United States v. Rodríguez, 630 F.3d 39, 41 (1st
Cir. 2010). After it determined that THC was the appropriate
comparator, the district court correctly applied the 1:167
multiplier listed in the Guidelines, applied other credits and
enhancements, and calculated the recommended sentence. The
district court could not apply a 1:7 ratio, which has no foundation
in the Guidelines, to calculate Hurley's recommended sentence.
Hossain does not support Hurley's position; that court first
calculated a total offense level using the 1:167 ratio and only
then used the 1:7 ratio as one factor in calculating a downward
variance under 18 U.S.C. § 3553. 2016 WL 70583, at *4-6.
We recognize, as the district court did below -- and the
Government appeared to accept -- that applying the 1:167 ratio to
a product that, by weight, consists primarily of inert plant matter
creates an "anomaly, [because of] the severity of the way this
conversion rate works." The anomaly is also reflected in the
recommended Guidelines sentence of 292-365 months, which exceeds
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the 240-month maximum sentence allowed under 21 U.S.C.
§ 841(b)(1)(C).
The "severity of the drug quantity conversion rate" led
the district court "to vary [Hurley's sentence] downward to where
the case more closely approximates a marijuana distribution case."
The Government does not challenge that variance, and we see no
error in it. We observe, however, that the Sentencing Guidelines
are meant to provide "a framework or starting point to guide the
exercise of the court's discretion," which "promotes uniformity
and fairness in sentencing." United States v. Marchena-Silvestre,
802 F.3d 196, 200 (1st Cir. 2015) (internal quotation marks and
alterations omitted) (quoting United States v. Millán-Isaac, 749
F.3d 57, 66-67 (1st Cir. 2014)). Here, the lack of either a
specific conversion rate or a clear comparator may harm both
uniformity and fairness. We therefore believe that the Sentencing
Commission should address this issue with greater clarity and
provide a rationale.
III. CONCLUSION
For the foregoing reasons, the district court's sentence
is affirmed.
Affirmed.
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