United States v. Hurley
| Decision Date | 23 November 2016 |
| Docket Number | No. 15-2541,15-2541 |
| Citation | 842 F.3d 170 |
| Parties | United States of America, Appellee, v. Kyle Hurley, Defendant, Appellant. |
| Court | U.S. Court of Appeals — First Circuit |
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.
Before Torruella, Lynch, and Lipez, Circuit Judges.
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.
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 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.
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 mixer, spraying the leaves with two chemicals, AB-FUBINACA and XLR11, and then applying acetone to the product to dry it out.
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 (), 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 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, 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.
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 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. SeeUnited States v. McDonald, 804 F.3d 497, 503 (1st Cir. 2015) (). 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...
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