United States v. Pacheco

United States Court of Appeals
For the First Circuit

No. 06-1520

UNITED STATES OF AMERICA,

Appellee,

v.

MANUEL PACHECO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Torruella, Circuit Judge,
Selya, Senior Circuit Judge,
and Lynch, Circuit Judge.

James H. Budreau on brief for appellant.
Michael J. Sullivan, United States Attorney, and David
Hennessy, Assistant United States Attorney, on brief for appellee.

May 31, 2007
 SELYA, Senior Circuit Judge. Defendant-appellant Manuel

Pacheco pleaded guilty to a count that charged, in effect, that he

conspired to distribute controlled substances. See 21 U.S.C. §§

841(a)(1), 846. In imposing a 36-month sentence, the district

court departed upward from the guideline sentencing range (GSR)

pursuant to USSG §5K2.2, which authorizes a departure in the event

that significant physical injury has resulted from the offense

conduct. The defendant appeals. Discerning no error, we affirm.

I. BACKGROUND

Because this appeal follows a guilty plea, we take the

relevant facts from the change-of-plea colloquy, the unchallenged

portions of the presentence investigation report, the victim's

hospital records (submitted by the defendant to the district

court), and the transcript of the disposition hearing. See United

States v. Mateo-Espejo, 426 F.3d 508, 509 (1st Cir. 2005); United

States v. Dietz, 950 F.2d 50, 51 (1st Cir. 1991). All enumerated

events occurred in 2001, unless otherwise indicated.

On July 27, a Massachusetts college student, MG, was

found by his mother in a barely responsive state. Close by were

two bottles of ketamine, some empty vials, and some hypodermic

syringes. MG's mother also discovered an empty priority-mail

envelope, apparently sent by one D.O.C. on June 19. The envelope

bore a return address in Reseda, California, and MG's mother

reasonably concluded that the ketamine had arrived in it.

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 Emergency medical personnel transported MG to a nearby

hospital. Physicians admitted him to intensive care and

provisionally diagnosed a ketamine overdose. MG later informed

hospital staff that he had taken heroin approximately one hour

before he ingested 200 milligrams of ketamine (twice his usual

self-administered dose). Subsequent diagnoses reflected MG's

ingestion of both drugs. After a few days, MG left the hospital,

contrary to medical advice. The defendant does not dispute that

MG's physical injuries were significant.

In the ensuing investigation, the authorities learned

that the defendant, under the nom de guerre "the Doc," advertised

various substances for sale over the internet. They also learned

that, between May and July, MG had ordered ketamine from the

defendant approximately ten times. Most of the orders were for

five bottles, although at least one order specified twice that

number of bottles. Each bottle contained ten milliliters of

ketamine.1

The defendant filled these orders with shipments to a

mailbox that MG had rented for the express purpose of obtaining the

contraband. A search of the mailbox revealed an unopened package

from D.O.C., which had been sent on July 26. That package

1
The record is sparse as to the relationship between
milliliters and milligrams of ketamine.

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contained five bottles of ketamine and an invoice listing MG's e-

mail address.

With this background information in hand, federal

authorities began to probe more deeply into the defendant's

activities. In and after August, they intercepted three incoming

mailers addressed to D.O.C. at a mailbox rented by the defendant

near his Reseda residence. Each envelope contained cash or a money

order. The agents also intercepted a number of outgoing shipments

(i.e., shipments from the Reseda address listed as the return

address on the June 19 priority-mail envelope that had been sent to

MG)2 containing steroids of various types.

On October 12, federal agents armed with a warrant

searched the defendant's Reseda residence as well as a Mercury

Sable parked in the driveway. The search yielded a price list from

a store in Mexico for, among other things, ketamine. The search

also turned up approximately fifty-five boxes of steroids,

packaging materials, priority-mail envelopes and labels, and a

loaded revolver.

The agents proceeded to interview the defendant. He took

responsibility for the mailings, thus admitting use of the

pseudonyms "D.O.C." and "the Doc." However, he professed that his

main business was the distribution of body-building substances. He

2
This address belonged to a neighbor who permitted the
defendant to use it for correspondence.

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claimed that he had stopped distributing ketamine — a horse

tranquillizer that no one presently asserts is a body-building

substance — after hearing that people were using it to get high.

On November 6, customs agents stopped the Mercury Sable

on a return trip from Mexico. A vehicle search revealed 1,300

units of steroids. The car's occupants (residents of the "rear

house" at the defendant's Reseda address) told the agents that the

steroids were destined for delivery to the defendant.

After a federal grand jury in the District of

Massachusetts returned a six-count indictment against him, the

defendant pleaded guilty to the lead count, which charged

conspiracy to distribute and to possess with intent to distribute

ketamine and anabolic steroids. At a sentencing hearing held on

August 18, 2005, the district court, without demurrer from either

side, arrived at a GSR of 18-24 months. On the government's motion

and over the defendant's objection, the court then invoked USSG

§5K2.2 and departed upward on the ground that the defendant's

actions had resulted in significant injuries to MG (who did not

testify at the disposition hearing). Accordingly, the court

imposed a 36-month incarcerative sentence. This timely appeal

followed.

II. DISCUSSION

In United States v. Booker, 543 U.S. 220 (2005), the

Supreme Court revolutionized federal sentencing practices. In the

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post-Booker world, a sentencing court must follow a four-step

progression. The court's task begins with calculating the

applicable GSR. It next must decide whether any departures are in

order. Then, the court must ponder the factors set forth in 18

U.S.C. § 3553(a), as well as any other relevant information.

Finally, the court must determine what sentence (whether within,

above, or below the GSR) is appropriate in the particular case.

See United States v. Pelletier, 469 F.3d 194, 203 (1st Cir. 2006);

United States v. Jiménez-Beltre, 440 F.3d 514, 518-19 (1st Cir.

2006) (en banc), cert. denied, 127 S. Ct. 928 (2007). We emphasize

that these four steps are not mechanical; as long as the sentencing

court touches all of the relevant bases and explains what it has

done, it may combine steps or vary the order.

In the case at bar, the defendant trains his fire on the

second step of the above-described sentencing pavane: the lower

court's decision to effect an upward departure. We turn, then, to

that decision.

The departure provision relied upon by the sentencing

court allows for an upward departure "[i]f significant physical

injury resulted" from the offense conduct. USSG §5K2.2. The

guideline further provides:

The extent of the increase ordinarily should
depend on the extent of the injury, the degree
to which it may prove permanent, and the
extent to which the injury was intended or
knowingly risked. When the victim suffers a
major, permanent disability and when such

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 injury was intentionally inflicted, a
substantial departure may be appropriate. If
the injury is less serious or if the defendant
(though criminally negligent) did not
knowingly create the risk of harm, a less
substantial departure would be indicated.

Id.

The defendant assigns error to the district court's

application of this guideline. In his view, the evidence was

insufficient to prove that MG's significant physical injuries

resulted from ketamine that he furnished.

This line of argument has two branches. First, the

defendant claims that MG had other suppliers, so the defendant was

not necessarily responsible for selling him the ketamine that

contributed to the near-fatal overdose. Second, the defendant

claims that, in all events, the ingestion of heroin broke the chain

of causation. We examine these claims separately. We start,

however, with the standard of review.

A. Standard of Review.

Under an advisory guidelines regime, we review the

ultimate sentence for reasonableness. Booker, 543 U.S. at 261-62.

Nevertheless, the underlying guideline computations must be legally

correct. United States v. Gobbi, 471 F.3d 302, 313 & n.7 (1st Cir.

2006). That brings other standards of review into the equation.

We review de novo claims that a sentencing court

committed an error of law in interpreting or applying the

guidelines. United States v. Pho, 433 F.3d 53, 60-61 (1st Cir.

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2006). Conversely, we review a sentencing court's factual

findings, including the findings that undergird departure

determinations, for clear error.3 United States v. Wallace, 461

F.3d 15, 33 (1st Cir. 2006).

B. Ketamine Origination.

The defendant admits to supplying MG with ketamine in the

spring of 2001. He argues, however, that even if the injuries MG

sustained can be attributed to a ketamine overdose, the evidence is

too thin to prove that he — and not some other source — supplied

the harm-inducing ketamine. He attempts to bolster this argument

in two ways. First, he characterizes MG as a habitual user of

ketamine whose daily intake — sometimes as much as 100 milligrams,

five times a day — substantially exceeded the quantities furnished

to him by the defendant. Second, he emphasizes the span of time

between the date of the last shipment that MG actually received

from him (June 19) and the date of the overdose (July 27). As he

sees it, that five and one-half week hiatus calls into serious

question the theory that he was the supplier of the near-fatal dose

of ketamine.

3
This appeal does not require us to decide whether a district
court's ultimate decision to depart engenders separate review for
abuse of discretion, see, e.g., United States v. Fuller, 426 F.3d
556, 562 (2d Cir. 2005), or engenders review for reasonableness as
part of the overall Booker analysis, see Booker, 543 U.S. at 261-
62. Here, the defendant advances a series of specific fact-based
and law-based challenges. He does not argue — nor could he, on
this record — that if those challenges fail, the upward departure
was nonetheless an abuse of discretion or otherwise unreasonable.

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 Although cleverly contrived, this argument will not wash.

In determining whether the government has carried the devoir of

persuasion at sentencing, the district court must employ a

preponderance of the evidence standard. See, e.g., United States

v. Leahy, 473 F.3d 401, 413 (1st Cir. 2007); United States v.

Green, 426 F.3d 64, 66 (1st Cir. 2005). The record adequately

evinces that the government carried its burden here.

The evidence before the district court concerning MG's

rate and frequency of ketamine consumption was not mathematically

precise. But the evidence did reflect that MG was discovered with

two bottles of ketamine and related paraphernalia by his side. A

priority-mail envelope, reasonably believed to have been the

vehicle for delivery of the two bottles, was directly traceable to

the defendant. When the authorities searched the mailbox that MG

had rented for the avowed purpose of receiving ketamine shipments

and to which the earlier priority-mail envelope had been addressed,

they discovered another ketamine-laden envelope directly traceable

to the defendant. While there was a lag of roughly five and one-

half weeks between the defendant's last pre-overdose shipment and

the date of the overdose, two things are clear. First, the fact

that the defendant's envelope was found at the scene is telling.

Second, the fact that another batch of ketamine was waiting,

unclaimed, could well confirm, rather than undermine, that the

defendant was the likely source of the ketamine ingested by MG.

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 To be sure, it is possible that MG had other sources of

ketamine available to him. But the record contains no proof of

that conjecture. More importantly, we believe that in light of the

chronology limned above, the district court's finding that the

defendant was the source of the harm-inducing ketamine is

supportable. After all, a district court's choice among plausible

but conflicting inferences cannot be clearly erroneous. See, e.g.,

United States v. Miliano, 480 F.3d 605, 608 n.2 (1st Cir. 2007);

United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

C. Ketamine Causation.

The defendant next contends that regardless of who

supplied the ketamine that MG ingested on July 27, the evidence is

insufficient to sustain a finding that ketamine caused MG's

injuries. This contention rests on two alternate hypotheses:

first, that the medical evidence failed to prove that MG's injuries

resulted from ketamine rather than heroin; and second, that MG's

use of heroin severed any ketamine-linked chain of causation. We

consider these hypotheses in turn.

1. Medical Evidence. At sentencing, the district court

had before it the records of MG's hospitalization. Those records

include references to both ketamine and heroin. The defendant

posits that the government should not have relied on the

unembellished hospital records but, rather, should have presented

medical testimony to distill the harms caused by each substance.

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Cf. United States v. Carbajal, 290 F.3d 277, 286 (5th Cir. 2002)

(discussing testimony of government's medical expert, offered at

sentencing for a similar purpose).

Whatever help such an expert might have provided here,

this argument is forfeit. In the district court, the parties

argued the propriety of a section 5K2.2 departure solely in terms

of the hospital records. At no point did the defendant so much as

hint at the possible utility of an expert witness, nor did he

suggest that the government needed to present extrinsic expert

opinion testimony in order to show causation. Accordingly, the

argument is forfeited. See Teamsters, Loc. No. 59 v. Superline

Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992) ("If any principle is

settled in this circuit, it is that, absent the most extraordinary

circumstances, legal theories not raised squarely in the lower

court cannot be broached for the first time on appeal."); see also

United States v. Slade, 980 F.2d 27, 30 (1st Cir. 1992) (applying

this principle in a criminal case).

Notwithstanding this forfeiture, plain error review

remains available. See United States v. Duarte, 246 F.3d 56, 60

(1st Cir. 2001). But that is cold comfort to the defendant.

Because there is no obvious error here, that potential escape hatch

remains firmly shut. See id.

In a variation on this theme, the defendant asseverates

that an upward departure under section 5K2.2 was precluded because

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the hospital records and other evidence did not prove that ketamine

rather than heroin (which the defendant did not supply) caused MG's

injuries. In support of this asseveration, the defendant points

out that MG used ketamine on a daily basis without apparent

incident; that a comment in the hospital chart states that

"[k]etamine abuse, common in adolescents/young adults[,] is very

well tolerated [and] rarely results in [emergency department]

visits"; and that these and other facts indicate that MG's injuries

were more likely caused by heroin than by ketamine. This

proposition lacks persuasive force.

As said, section 5K2.2 authorizes a departure "[i]f

significant physical injury resulted" from the offense conduct.

Although we have not had occasion to construe the applicability of

this guideline in circumstances in which more than one harmful

substance was found in a victim's system, our case law construing

a related guideline — USSG §5K2.1 — is quite helpful. That

guideline authorizes an upward departure "[i]f death resulted" from

the offense conduct. USSG §5K2.1. It is readily evident that

section 5K2.1 and section 5K2.2 are sisters under the skin; the two

are designed to accomplish much the same purpose and are phrased in

a very similar manner. Moreover, the latter guideline specifically

cross-references the former. See id. §5K2.2 (stating that "[i]n

general, the same considerations apply as in §5K2.1"). We are

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confident, therefore, that precedent under section 5K2.1 is of

great utility in construing section 5K2.2.

We have construed section 5K2.1 to allow a departure when

"a defendant puts into motion a chain of events" that runs a

cognizable risk of death, even though "the defendant was not

directly responsible for the death." United States v. Diaz, 285

F.3d 92, 101 (1st Cir. 2002). Thus, a departure under that

guideline is permitted "even when the defendant is not the direct

cause of the victim's death." United States v. Sanchez, 354 F.3d

70, 80-81 (1st Cir. 2004). We cite these cases as examples; they

do not suggest limitations on the principle of but-for causation.

Applying these tenets, we conclude that to warrant an

upward departure in this case, the government was not required to

show that ketamine was either the sole or the direct cause of MG's

injuries; it had to show only that there was a but-for causal

connection between ketamine and those injuries.

The evidence before the district court easily met this

benchmark. The hospital records are replete with references to

MG's use of ketamine and his "ketamine overdose." Although other

notations mention MG's ingestion of heroin, the records as a whole

support an inference that ketamine was at least a concurrent cause

of the injuries. Indeed, at the disposition hearing, defense

counsel expostulated that the hospital records indicated an

"overdose on July 27th of 200 milligrams of ketamine, plus heroin."

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The ultimate diagnosis — a "[h]eroin/ketamine overdose" — reflects

this reality.

The chronology of events supports the view that MG's

injuries were causally connected to his use of ketamine. The

evidence shows that MG ingested ketamine approximately one hour

after he took heroin; thus, the heroin by itself had not rendered

him unconscious. To cinch matters, the amount of ketamine that MG

consumed (200 milligrams) constituted twice his usual dosage.

To sum up, the totality of the evidence was sufficient to

ground an inference that ketamine, either by itself or in

combination with heroin, played a meaningful role in the overdose

(and, thus, in the incidence of the injuries). It follows

inexorably, from all that we have said thus far, that the district

court did not commit clear error in finding that significant

physical injury resulted from ketamine supplied by the defendant.

An upward departure pursuant to USSG §5K2.2 was, therefore,

appropriate.

2. Intervening Cause. The defendant has another shot in

his sling. While acknowledging that "intent and foreseeability are

not prerequisites" to an upward departure under section 5K2.2, he

argues that intentional acts undertaken by MG broke the chain of

causation here. In particular, he alludes to MG's mixing of heroin

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with ketamine despite knowing the dangers of such an amalgam and

his "clear attempt" to commit suicide.4

The defendant's concession that foreseeability is not a

requirement for an upward departure under section 5K2.2 is well-

taken. To cite but one example, apposite here, an upward departure

may be appropriate under section 5K2.2 with respect to a defendant

who, although not directly responsible for a significant physical

injury and although not harboring an intent to harm, sets into

motion a chain of events that risks serious harm to others. See

United States v. Scheetz, 293 F.3d 175, 191 (4th Cir. 2002). There

is no foreseeability requirement per se.

This conclusion is consistent with our precedent applying

21 U.S.C. § 841(b)(1)(C), which requires an enhanced sentence for

a defendant who commits a drug offense "if death or serious bodily

injury results from the use of such substance." We have construed

this statute, the language of which is reminiscent of the language

of sections 5K2.1 and 5K2.2, to require no more than that "a

defendant deals drugs and a user of those drugs dies as a result."

United States v. Soler, 275 F.3d 146, 153 (1st Cir. 2002); accord

United States v. Wall, 349 F.3d 18, 24-25 (1st Cir. 2003). The

4
Despite this hyperbole, it is far from clear that MG
attempted to commit suicide. Although he admitted to hospital
staff that he had had suicidal ideations in the past and that he
knew the potential dangers of mixing ketamine with heroin, the
record is inconclusive about whether or not he set out to commit
suicide. This appeal does not require us to resolve that
uncertainty.

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same paradigm applies under section 841(b)(1)(C) where serious

bodily injury results. See, e.g., United States v. Robinson, 167

F.3d 824, 831-32 (3d Cir. 1999). The statutory enhancement, as we

have construed it, is a matter of "strict liability." Soler, 275

F.3d at 152.

Viewed against this backdrop, we do not think that MG's

actions precluded an upward departure here. The defendant's

attempt to package this as an "intervening cause" argument is a

misnomer. Since section 5K2.2 does not specify a foreseeability

requirement, our earlier holding that ketamine was a but-for cause

of the significant physical injuries sustained by MG, see supra

Part II(C)(1), fully disposes of any argument that MG's actions

severed the ketamine-linked chain of causation.5

We add an eschatocol of sorts. To the extent that a

defendant's intent has a role to play in the section 5K2.2

departure calculus, that role relates to the extent of the

departure imposed. See USSG §5K2.2 (providing that the length of

the departure should be tied, in part, to "the extent to which the

injury was intended or knowingly risked"); cf. Diaz, 285 F.3d at

5
We add, in passing, that the defendant here engaged in the
commercial trade of potent substances that he must have known could
have dire consequences in a myriad of circumstances. That his
business practices were geared to evade detection reflects an
awareness of those risks. Consequently, while he could not have
anticipated the exact sequence of events that unfolded here, he
could (and should) have foreseen the possibility of the kind of
serious harm that in fact occurred.

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101 (stating, in connection with section 5K2.1, that

"[a]meliorating factors" would bear on the extent of departure).

In this appeal, the extent of the departure has not been challenged

by the defendant.6

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the evidence was sufficient to support an upward

departure under USSG §5K2.2, and that the sentencing court acted

appropriately in applying the guideline.

Affirmed.

6
It perhaps bears mentioning that the district court did not
depart upwardly to the full extent requested by the government but,
rather, took into account on the degree of the departure the lack
of any specific intent and the peculiar nature of the events.

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