United States v. Hurley
842 F.3d 170
| 1st Cir. | 2016Background
- Kyle Hurley pleaded guilty to conspiracy to distribute and possession with intent to distribute synthetic cannabinoid product (AB-FUBINACA and XLR11 sprayed on inert plant leaves); he stipulated to 1,451.7 kg of product and sold ~1,100 kg for ~$500,000.
- Law enforcement seized additional product at locations tied to Hurley and his supplier, Robert Costello; Hurley was arrested after collecting cash from an undercover buy.
- The Sentencing Guidelines require converting controlled substances to a "marijuana equivalent"; the Guidelines list a 1:1 ratio for marijuana and 1:167 for THC (per U.S.S.G. §2D1.1 commentary), but provide no specific ratio for synthetic cannabinoids.
- The district court had to choose the listed comparator most closely related to AB-FUBINACA and XLR11 (marijuana or THC); the government presented DEA pharmacologist Dr. Trecki, who testified the chemicals produce effects substantially similar to THC and are at least as potent.
- The district court found THC to be the proper comparator, applied the 1:167 multiplier (making Hurley responsible for 242,434 kg marijuana equivalent), calculated a Guidelines range that exceeded the statutory maximum, and ultimately varied downward to impose a 114-month sentence (below the Government's request of 144 months).
- On appeal Hurley argued (1) marijuana, not THC, should be the comparator because his product contained plant matter, and (2) the 1:167 ratio lacked empirical basis and a 1:7 ratio should be used; the First Circuit reviewed unpreserved comparator arguments for plain error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper Guidelines comparator for synthetic cannabinoids (marijuana vs. THC) | Government: THC is most closely related; expert testimony shows similar subjective effects and potency to THC | Hurley: comparator should be marijuana because product contains inert plant matter like marijuana | Court: No plain error in selecting THC; district court reasonably relied on DEA expert and precedent |
| Validity of applying 1:167 THC-to-marijuana conversion ratio | Government: must apply Guidelines multiplier once THC is chosen | Hurley: 1:167 is arbitrary; court should use 1:7 ratio to compute offense level | Court: District court correctly applied the Guidelines' 1:167 ratio; 1:7 is not in the Guidelines and may inform a variance but not the Guidelines calculation |
| Preservation and standard of review of comparator argument | Government: Hurley failed to preserve the specific "plant-matter" comparator argument | Hurley: he argued for marijuana comparator below | Court: Argument not preserved; reviewed for plain error and found no clear or obvious error |
| Whether district court abused discretion by varying downward from Guidelines recommendation | Hurley: relied on severity of conversion (implicitly contending for different outcome) | Government: did not challenge the downward variance | Court: affirmed the downward variance as within district court discretion; encouraged Sentencing Commission to clarify conversion guidance |
Key Cases Cited
- United States v. Ramos, 814 F.3d 910 (8th Cir. 2016) (addressing comparator choice for synthetic cannabinoids)
- United States v. McDonald, 804 F.3d 497 (1st Cir. 2015) (plain-error review when issues raised first on appeal)
- United States v. Ríos-Hernández, 645 F.3d 456 (1st Cir. 2011) (specificity required to preserve issues for appeal)
- United States v. Rodríguez, 630 F.3d 39 (1st Cir. 2010) (importance of correct Guidelines calculation)
- United States v. Correa-Osorio, 784 F.3d 11 (1st Cir. 2015) (plain-error standard elements)
- United States v. Marchena-Silvestre, 802 F.3d 196 (1st Cir. 2015) (Guidelines as a sentencing framework)
- United States v. Millán-Isaac, 749 F.3d 57 (1st Cir. 2014) (Guidelines promote uniformity and fairness)