United States v. Demers

United States Court of Appeals
For the First Circuit

No. 15-2205

UNITED STATES OF AMERICA,

Appellee,

v.

RYAN DEMERS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Thompson, Circuit Judges.

Stanley W. Norkunas on brief for appellant.
Emily Gray Rice, United States Attorney, and Seth R. Aframe,
Assistant United States Attorney, on brief for appellee.

November 16, 2016
 SELYA, Circuit Judge. Defendant-appellant Ryan Demers

asserts both that the sentencing court made an erroneous drug-

quantity determination and that, in all events, the sentence

imposed was substantively unreasonable. After careful

consideration, we affirm the appellant's sentence.

I. BACKGROUND

Because this appeal follows a guilty plea, "we glean the

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

portions of the presentence investigation report (PSI Report), and

the record of the disposition hearing." United States v. Vargas,

560 F.3d 45, 47 (1st Cir. 2009).

On August 7, 2014, law enforcement officers initiated

surveillance of the appellant as part of an ongoing investigation

into the illegal distribution of oxycodone pills in and around

Manchester, New Hampshire by José Nuñez, Jennifer Nuñez, and

Johanna Nuñez (collectively the Nuñez consortium), as well as

Samuel Garcia. The surveillance led to the appellant's arrest on

September 2, 2014. After waiving his Miranda rights, see Miranda

v. Arizona, 384 U.S. 436, 444-45 (1966), the appellant confessed

to illegally purchasing pills from the Nuñez consortium, Garcia,

and another vendor named William Alba for roughly two years. The

appellant stated that he recently had been purchasing around 100

to 200 pills every other day, though he originally had purchased

- 2 -
smaller quantities. He explained in some detail the purchasing

process and price points involved.

Garcia was also apprehended. He told the authorities

that he had supplied the appellant with oxycodone for approximately

12 to 18 months before the appellant's arrest. He recalled that

the appellant had at first bought smaller amounts, but increased

his purchases to around 400 or 500 pills per week after he

established his own customer base.

Johanna Nuñez, also in custody, stated that "Brian"

(reasonably believed to be the appellant) was one of her biggest

customers. She recalled supplying him with 80 to 100 pills at a

crack. In addition, Alba identified the appellant as a person to

whom José Nuñez regularly sold wholesale batches of pills.

On September 17, 2014, a federal grand jury sitting in

the District of New Hampshire returned a two-count indictment,

charging the appellant — and only the appellant — with conspiracy

to distribute a controlled substance (oxycodone) and distribution

of that controlled substance.1 See 21 U.S.C. §§ 841(a)(1), 846.

After some procedural maneuvering (not relevant here), the

appellant entered a straight guilty plea to both counts.

1
On the same date, the grand jury returned two other
indictments against a total of seven individuals for their
purported involvement in oxycodone-distribution conspiracies. The
appellant was not named as a defendant in either of these
indictments.

- 3 -
 The PSI Report set the appellant's base offense level at

32 premised on a finding that he had distributed approximately 200

30-milligram oxycodone pills per week for a period of 18 months.

See USSG §2D1.1(c)(4) (Drug Quantity Table). The appellant

objected to this drug-quantity calculation, beseeching the court

to shorten the time frame to 12 months and reduce the weekly

allotment of pills to reflect pills purchased for personal

consumption.2

The sentencing court convened the disposition hearing on

September 22, 2015. It rejected the appellant's request to trim

the time frame for the drug-quantity calculation from 18 months to

12 months, citing the appellant's own admission that he had been

purchasing oxycodone for roughly two years. The court then stated

that it was unpersuaded that the appellant was "only trafficking

to feed his own habit." Even so, the court took account of the

appellant's personal use of oxycodone by reducing his base offense

level from 32 to 30.

After some further offsets (not relevant here), the

court set the appellant's total offense level at 25, and placed

him in Criminal History Category I. This produced a guideline

2Following his arrest, the appellant told the authorities
that he himself had become addicted to oxycodone. He estimated
that, at the time of his arrest, he was using approximately 15 to
25 pills per day and that his girlfriend was using approximately
five pills per day.

- 4 -
sentencing range (GSR) of 57 to 71 months. The appellant argued

for a downwardly variant sentence of 28 months.

The government objected, pointing to the large volumes

of drugs trafficked by the appellant. The government added that

New Hampshire's serious opiate problem warranted particularly

strong deterrence (both individual and general) in the

circumstances of this case.

The district court concluded that the amount of drugs

involved in the offenses of conviction was simply too great to

warrant the requested variance. Instead, it imposed a bottom-of-

the-range sentence: a 57-month term of immurement for each count,

to be served concurrently. This timely appeal ensued.

II. ANALYSIS

As a general matter, we review the imposition of a

sentence for abuse of discretion. See Gall v. United States, 552

U.S. 38, 51 (2007); United States v. Martin, 520 F.3d 87, 92 (1st

Cir. 2008). The process is bifurcated. We first determine whether

the sentence imposed is procedurally reasonable (that is, free

from reversible error in its procedural aspects) and then determine

whether it is substantively reasonable. See Gall, 552 U.S. at 51.

Within this structure, we review a sentencing court's factual

findings for clear error and its interpretation and application of

the guidelines de novo. See United States v. Walker, 665 F.3d

212, 232 (1st Cir. 2011). The entire process "is characterized by

- 5 -
a frank recognition of the substantial discretion vested in a

sentencing court." United States v. Flores-Machicote, 706 F.3d

16, 20 (1st Cir. 2013).

A. Drug Quantity.

We begin with the appellant's attack on the procedural

reasonableness of his sentence. Our starting point is

uncontroversial: in order to achieve procedural reasonableness, a

sentencing court must correctly calculate the GSR. See United

States v. Gobbi, 471 F.3d 302, 313 n.7 (1st Cir. 2006).

"In drug-trafficking cases under the sentencing

guidelines, sentences are largely quantity-driven." United States

v. Sepulveda, 15 F.3d 1161, 1196-97 (1st Cir. 1993). Here, the

appellant's procedural plaint is focused on the sentencing court's

drug-quantity calculation. We review that calculation for clear

error and will disturb it only if, based "on the whole of the

record, we form a strong, unyielding belief that a mistake has

been made." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152

(1st Cir. 1990).

When assessing drug quantity, a sentencing court is

tasked with making a reasonable approximation of the weight of the

controlled substance(s) for which the defendant should be held

responsible. See USSG §2D1.1, cmt. n.5. This approximation must

be based on an individualized determination concerning the

quantity of drugs attributable to, or reasonably foreseeable by,

- 6 -
the defendant. See United States v. Cintrón-Echautegui, 604 F.3d

1, 5 (1st Cir. 2010). We do not use the word approximation

casually: the sentencing court's drug-quantity determination "need

not be precise to the point of pedantry." United States v. Platte,

577 F.3d 387, 392 (1st Cir. 2009).

For sentencing purposes, quantities of controlled

substances not specifically referenced in the Drug Quantity Table

— such as oxycodone — must be converted to their marihuana

equivalent. See USSG §2D1.1, cmt. n.8(A)(i). The court below set

the appellant's base offense level at 30. That base offense level

holds a defendant responsible for at least 1,000 but less than

3,000 kilograms of marihuana. See id. §2D1.1(c)(5). The Drug

Equivalency Table dictates that one gram of "actual" oxycodone

equates to 6,700 grams of marijuana, id. §2D1.1, cmt. n.8(D), so

an offense level of 30 corresponds to at least 149 but less than

447 grams of oxycodone. With respect to the appellant's wares,

each oxycodone pill was 30 milligrams in weight. Extrapolating

from these figures, then, the sentencing court held the appellant

responsible for at least 4,967 pills (149 grams equals 149,000

milligrams, which — when divided into 30-milligram pills — equals

approximately 4,967 pills). Using an 18-month time line, the court

held the appellant responsible for at least 70 pills per week for

18 months.

- 7 -
 The appellant launches a three-pronged assault on this

calculation. First, he suggests that the sentencing court failed

to make an individualized determination. Second, he challenges

the use of an 18-month time line. Third, he brands the calculation

as erroneous because it did not exclude pills that he used

personally. We address these remonstrances sequentially.

To begin, we reject the appellant's suggestion that the

sentencing court did not make an individualized determination. He

seems to argue that because he was not charged as a participant in

the same conspiracy as any of his vendors, see supra note 1, their

actions should not be imputed to him. But this argument rests on

a false premise: the district court's calculations all zeroed in

on the appellant's own purchases. The court did not attribute to

the appellant any sales made by his vendors (the Nuñez consortium,

Garcia, or Alba) to third partners but, rather, limited its

consideration to sales made to the appellant himself.

The appellant's challenge to the sentencing court's use

of an 18-month time line is equally groundless. The appellant

argues that although he admitted to purchasing oxycodone for a

period of about two years, he only engaged in distributing the

drugs for a much shorter (but unspecified) period. This argument

is plucked out of thin air: nothing other than the appellant's

- 8 -
ipse dixit supports it.3 When faced with conflicting facts

relating to drug quantity, a district court is at liberty to make

judgments about credibility and reliability. See Platte, 577 F.3d

at 393. So it is here: the court supportably chose to give

particular credence to the appellant's own estimate of the period

of his involvement4 — an estimate made to law enforcement officers

shortly after the appellant was detained and under circumstances

that gave him every reason not to exaggerate the length of his

involvement in the distribution of drugs. See United States v.

Maguire, 752 F.3d 1, 5 (1st Cir. 2014).

The appellant rejoins that his addiction could have

affected his memory, causing him to give inaccurate statements to

the police. On this record, though, that possibility is purely

speculative. Within wide limits — not approached here — it is for

3
To be sure, the appellant points to Garcia's statement that
he only recalls the appellant being a customer for around 12 to 18
months. Garcia's estimate, however, encompasses the sentencing
court's 18-month time line. And in any event, the court did not
clearly err in weighing the appellant's own statements more heavily
than Garcia's. After all, when there are multiple plausible views
of the circumstances, a sentencing court's selection among those
alternatives cannot be clearly erroneous. See United States v.
Ruiz, 905 F.2d 499, 508 (1st Cir. 1990).

4
Indeed, the court limited its drug-quantity determination
to a period (18 months) that was shorter than the period originally
identified by the appellant (2 years). This circumspect approach
was consistent with our admonition that, in estimating drug
quantities, it is often wise for a sentencing court "to err on the
side of caution." United States v. Sklar, 920 F.2d 107, 113 (1st
Cir. 1990) (quoting United States v. Walton, 908 F.2d 1289, 1302
(6th Cir. 1990)).

- 9 -
the sentencing court, not the court of appeals, to sift through

the possibilities and develop a reasonable approximation of drug

quantity. See id.

The appellant's last line of attack posits that the

sentencing court's drug-quantity determination does not pass

muster because it failed to exclude pills that the appellant

himself consumed. This line of attack misfires: when — as in this

case — the evidence shows that the defendant was a member of a

drug-trafficking conspiracy, his "purchases for personal use are

relevant in determining the quantity of drugs that [he] knew were

distributed by the conspiracy." United States v. Innamorati, 996

F.2d 456, 492 (1st Cir. 1993); accord United States v. Marks, 365

F.3d 101, 105-06 (1st Cir. 2004) (holding that sentencing court

was not required to deduct amount of drugs defendant personally

consumed because each pill "was acquired with the intent that it

would or could be distributed").

In an effort to deflect the force of these precedents,

the appellant insists that, in actuality, he was only part of "a

conspiracy of one." To support this thesis, he notes out that he

was the only person charged in this particular indictment. From

that fact he reasons that he was the only person involved with

this specific conspiracy. Because his suppliers were charged with

being members of separate conspiracies, see supra note 1, he

- 10 -
submits that he should not be considered to have been in a

conspiracy with any of them.

This is smoke and mirrors. The prosecution's charging

decisions vis-à-vis the appellant's vendors do not in any way

insulate the appellant. The appellant himself was charged with

participating in a conspiracy with others to distribute oxycodone;5

he pleaded guilty to that charge; and the record evidence furnishes

an unarguable factual basis for his plea. Under these

circumstances, the appellant's "conspiracy of one" claim is

untenable. See United States v. Padilla-Galarza, 351 F.3d 594,

598 (1st Cir. 2003) (holding that a defendant is normally bound by

the facts admitted at the time of his guilty plea).

It is worth noting that, at sentencing, the government

sought to hold the appellant responsible for 10,400 oxycodone

pills. The district court, though, settled upon a drug quantity

of less than half that amount. The court proceeded to adjust the

appellant's offense level accordingly. As we read the record, no

hint of error — let alone any hint of clear error — mars the

district court's relatively conservative drug-quantity

determination.

5 Specifically, the indictment to which the appellant pleaded
charged him with "conspir[ing] . . . with persons known and unknown
to the Grand Jury . . ."

- 11 -
 B. Substantive Reasonableness.

This brings us to the appellant's challenge to the

substantive reasonableness of his sentence. Because this

challenge is made for the first time on appeal, it is arguable

whether our review is for abuse of discretion or for plain error.

See United States v. Pérez, 819 F.3d 541, 547 (1st Cir. 2016);

United States v. Ruiz-Huertas, 792 F.3d 223, 228 & n.4 (1st Cir.),

cert. denied, 136 S. Ct. 258 (2015). Here, however, all roads

lead to Rome: whichever standard of review obtains, the sentence

withstands the appellant's challenge. Thus, instead of struggling

to resolve the thorny question surrounding the standard of review,

we assume, favorably to the appellant, that review is for abuse of

discretion.

A sentence will survive a challenge to its substantive

reasonableness as long as it rests on a "plausible sentencing

rationale" and reflects a "defensible result." Martin, 520 F.3d

at 96. In applying this test, we remain mindful that "there is

not a single reasonable sentence but, rather, a range of reasonable

sentences." Id. at 92.

Here, the sentencing court articulated a plausible

rationale for the sentence. Among other things, the court

considered the need for condign punishment, the nature and

circumstances of the offenses, specific deterrence, respect for

the law, and public protection. See 18 U.S.C. § 3553(a). The

- 12 -
court noted that it had adjusted the appellant's base offense level

downward and stated that "[t]he [oxycodone] quantities involved in

this case are simply too great to justify [both] the total offense

level adjustment made by the Court and a substantial variance."

The result, too, is easily defensible. A challenge to

the substantive reasonableness of a sentence is particularly

unpromising when the sentence imposed comes within the confines of

a properly calculated GSR. See United States v. Vega-Salgado, 769

F.3d 100, 105 (1st Cir. 2014). That is particularly true where,

as here, the sentence is at the nadir of the range. See United

States v. Rodríguez-Milián, 820 F.3d 26, 35 (1st Cir.), cert.

denied, 580 U.S. ___ [No. 15-9799] (Oct. 3, 2016).

The appellant's only substantial counter-argument is

that the sentence imposed on Johanna Nuñez (one of his suppliers)

was six months shorter than his.6 As we explain below, this

counter-argument is unconvincing.

We recognize, of course, that in fashioning a sentence

a court must consider "the need to avoid unwarranted sentence

6The appellant's brief also attempts to sketch an argument
predicated on changing societal and political views concerning
mass incarceration and drug addiction. He appears to argue that
future legislation, currently under consideration, might yield a
gentler sentence in a case like his. Regardless of the
desirability of such future legislation — a matter on which we
take no view — this argument is without force. We must decide
this appeal on the basis of the law as it stands, not on the basis
of the law as it might someday be.

- 13 -
disparities among defendants with similar records who have been

found guilty of similar conduct." 18 U.S.C. § 3553(a)(6).

Congress intended this provision, though, primarily to eliminate

national sentencing disparities rather than disparities among

coconspirators. See Martin, 520 F.3d at 94. Accordingly, we have

held that a defendant is not entitled to a reduced sentence simply

because his accomplices or coconspirators received such sentences.

See United States v. Marceau, 554 F.3d 24, 33-34 (1st Cir. 2009).

Still, legitimate concerns may arise if similarly

situated coconspirators or codefendants receive inexplicably

disparate sentences. See id. But such a sentencing disparity

claim may easily be repulsed if material differences between the

defendant and the proposed comparator suffice to explain the

divergence. See Rodríguez-Milián, 820 F.3d at 35; United States

v. Reyes-Santiago, 804 F.3d 453, 467 (1st Cir. 2015); United States

v. Mateo-Espejo, 426 F.3d 508, 514 (1st Cir. 2005).

In the case at hand, the sentencing court explicitly

acknowledged the "need to avoid unwarranted sentence

disparit[ies]." It then noted that, "after reading the [PSI

Report] and listening to the presentation of the parties," it

"roughly equate[d] the defendant's conduct with that conduct of

. . . Johanna [Nuñez]." Mindful that the appellant was not only

a customer of Johanna Nuñez but also had customers of his own, the

court calculated identical guideline ranges for the appellant and

- 14 -
Johanna Nuñez. There is, however, a compelling explanation for

the slightly reduced sentence in Nuñez's case: she received a one-

level departure under USSG §5H1.6 based on her family ties and

responsibilities — a departure that the appellant did not seek and

for which he was not eligible. Given this material difference,

the two individuals were not similarly situated and, thus, the

claim of sentencing disparity founders.

III. CONCLUSION

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

the sentence is

Affirmed.

- 15 -