          United States Court of Appeals
                      For the First Circuit


No. 17-1797

                    UNITED STATES OF AMERICA,

                            Appellee,

                                v.

                          RICKY SIROIS,

                      Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

        [Hon. John A. Woodcock, Jr., U.S. District Judge]


                              Before

                   Lynch, Kayatta, and Barron,
                         Circuit Judges.


     Michelle Menken and The Law Office of Michelle Menken on brief
for appellant.
     Julia M. Lipez, Assistant United States Attorney, and Halsey
B. Frank, United States Attorney, on brief for appellee.


                          August 6, 2018
             KAYATTA, Circuit Judge.        After his release from federal

custody following a drug trafficking conviction, Ricky Sirois

failed   three   drug    tests   and    pleaded   guilty    to       felony   drug

possession in state court.        Concluding that this conduct violated

Sirois's conditions of supervised release, the district court

revoked his supervised release and committed him to twenty-four

months' imprisonment.        On appeal, Sirois contends that because his

drug   addiction   is    a   disease,    sentencing   him       to    a    term   of

imprisonment     for    manifesting     a    condition     of        his   disease

constitutes cruel and unusual punishment in violation of the Eighth

Amendment.    Sirois also challenges the substantive reasonableness

of his sentence.       For the following reasons, we affirm.

                                       I.

             Sirois has struggled with substance abuse for most of

his life.    He suffered severe physical and emotional trauma at an

early age, and, in his teenage years, began using drugs.                    In the

ensuing decades, Sirois accumulated numerous run-ins with the law.

The facts of this case revolve around a few such encounters.

             In November of 2011, a grand jury indicted Sirois on

drug trafficking charges stemming from his participation in an

oxycodone distribution ring in central and southern Maine.                  Sirois

pleaded guilty, and the district court sentenced Sirois to forty-

eight months' imprisonment, followed by three years of supervised

release.    As part of the conditions of his supervised release, the


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district     court   required        that   Sirois    not   commit    any   crime,

specifically prohibited him from using or possessing controlled

substances, and required that he submit to drug testing.

             Sirois served his time in prison and commenced his term

of supervised release on June 1, 2015.               With but minor blemishes,

this post-incarceration period appears to have begun smoothly.

Sirois rented a room, communicated with his probation officer, and

found legitimate sources of income.             He also took steps to address

his   substance      abuse.      Sirois      attended    Alcoholics    Anonymous

meetings, developed a strong relationship with his sponsor, and

attempted to obtain a prescription for Subutex to manage his opiate

addiction.     During this first year, Sirois passed his required

drug tests.

             Approximately a year after his release, Sirois faltered.

On May 18, 2016, his drug test turned up positive for cocaine,

which he admitted using.             In September of the same year, Sirois

had   a    long-awaited       foot     surgery.       The   doctor     prescribed

hydromorphone, an opioid, to manage pain.               Sirois does not appear

to have abused his prescription; a pill count conducted by his

probation officer detected no issues, and his doctor then tapered

the prescription.

             Not long after, however, Sirois renewed the behavior

that the terms of his release prohibited.               Twice, in February and

April of 2017, Sirois's drug tests detected the presence of cocaine


                                        - 3 -
or   marijuana.        Random    home   searches   revealed    his   renewed

association with other drug users.             Sirois appeared to turn

antagonistic      to   drug     treatment,   calling   his    drug   testing

"bullshit" and declaring that he would rather go back to jail than

engage in substance abuse treatment, although he did reluctantly

agree to complete a substance abuse assessment.

           This downward spiral culminated on May 24, 2017, when

Waterville, Maine police discovered Sirois, during a traffic stop,

in possession of a crack pipe, hypodermic needles, marijuana, crack

cocaine, and heroin.            Sirois pleaded guilty to one count of

unlawful possession of heroin, a Class C felony under Maine state

law, and received a sentence of fifty-nine days in jail.

           Sirois's state drug conviction and failed drug tests led

the probation office to seek the revocation of his supervised

release.   The Revocation Report calculated, and Sirois did not

then and does not now dispute, that his guidelines sentencing range

extended from twenty-one to twenty-four months' imprisonment.

           At the revocation hearing, conducted by the same judge

who had originally sentenced Sirois, Sirois admitted the charged

violations.    As to his sentence, he requested only a short period

of incarceration -- ninety days -- to be followed by drug addiction

treatment, rather than a more significant term of imprisonment.

The district court did not grant his request.                 In sentencing

Sirois, the district court relied on, among other things, Sirois's


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association with other drug users and his negative attitude toward

drug treatment.       The court observed that it had previously given

Sirois "another chance" to set his life back on track through the

structure of probation conditions, but that Sirois had instead

"run the string on the federal system."             The court also criticized

Sirois's     decision     to   apply     for      disability      benefits        while

performing physical labor.         It concluded that supervised release

had   not    worked      for   Sirois     and     adopted      the    government's

recommendation of twenty-four months' imprisonment.                  The court did

not impose any additional supervised release following Sirois's

term of incarceration.         Sirois now appeals this sentence.

                                        II.

                                        A.

             Sirois first contends that his sentence violates the

Eighth Amendment's prohibition of cruel and unusual punishment.

In his briefing on appeal, he marshals a body of scientific

literature    to    demonstrate    what      he   describes    as    the    "modern"

scientific consensus that drug addiction is a disease for which

prison is poor treatment.

             But,   as   Sirois   acknowledges,       he    did     not    make   this

argument below, either before or at sentencing. Nor did he present

the district court with the scientific literature upon which he

principally bases his Eighth Amendment challenge.                     We therefore

review for plain error only.            See United States v. Blodgett, 872


                                       - 5 -
F.3d 66, 71 (1st Cir. 2017).             Under this standard of review,

Sirois, to prevail, must show that (1) an error occurred (2) that

was clear or obvious, and not only (3) affected his substantial

rights, but also (4) seriously impaired the fairness, integrity,

or public reputation of the judicial proceeding. See United States

v. Paz-Alvarez, 799 F.3d 12, 27 n.14 (1st Cir. 2015).

            Sirois also includes in his reply brief on appeal several

unexplained descriptions of his Eighth Amendment argument as a

challenge to "the denial of any treatment and imposition of a term

of incarceration."     If Sirois intends these descriptions to raise

a challenge to the denial of treatment during a drug-addicted

defendant's term of incarceration -- as opposed to the imposition

of incarceration itself -- such a challenge would be waived for

lack of any fair development in Sirois's opening brief. See United

States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

            To   persuade    us   that   sentencing    him   to   a    term   of

imprisonment clearly violated the Eighth Amendment, Sirois argues

that the Amendment "categorically" precludes incarceration for his

use   of   illegal   drugs   because     that   use   is   compelled    by    his

addiction, which is a disease.         To support this argument he points

to a trio of Supreme Court decisions.           See Graham v. Florida, 560

U.S. 48 (2010); Powell v. Texas, 392 U.S. 514 (1968); Robinson v.

California, 370 U.S. 660 (1962).          Application of those opinions,

he says, to the learning manifest in the scientific literature on


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drug addiction should reject incarceration as a constitutionally

accepted option for his violations of the terms of his release.

             Sirois   relies        on       Graham      for     its     recognition    and

extension of the proposition that some types of punishment are

categorically     prohibited         for          some   types     of     individuals    or

behavior.    See Graham, 560 U.S. at 60.                  Graham does recognize that

a form of punishment -- capital punishment -- is categorically

precluded for those who: committed non-homicide crimes against

individuals, Kennedy v. Louisiana, 554 U.S. 407, 437-38 (2008);

committed their crimes as juveniles, Roper v. Simmons, 543 U.S.

551, 578 (2005); or have an intellectual disability, Atkins v.

Virginia, 536 U.S. 304, 321 (2002).                      See Graham, 560 U.S. at 60-

61.   It is also correct that Graham extended this line of cases

beyond   the    death   penalty              to    invalidate          categorically    the

imposition of a life without parole sentence on a juvenile offender

for a non-homicide crime.            Id. at 61-62, 82.                  In so doing, the

Court considered two factors evident in this line of cases:

(1) objective     indicia      of        a    national         consensus     against    the

sentencing practice, and (2) the Court's own independent judgment

about whether the practice at issue violated the Constitution,

guided by the text, history, purpose, and case law of the Eighth

Amendment.     Id. at 61.       Sirois argues that this same approach

supports his argument.




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            The extrapolation Sirois would have us make in order to

find that Graham's mode of analysis would ultimately lead to the

conclusion that Sirois's sentence was unconstitutional is quite a

leap, certainly too far to allow any finding that the district

court committed a clear error of law.             Sirois does not argue, nor

could he, that Graham controls the outcome of his appeal.                Graham

and its predecessors address the extreme penalties of death and

life incarceration, the latter of which Graham "likened" to the

former.    See Miller v. Alabama, 567 U.S. 460, 470 (2012).             Rather,

Sirois employs Graham's "framework" to build his argument.                    But

Graham    and   its   predecessors     do   not   mention    the   subjects    of

compulsion and effectiveness that provide several of the key

building   blocks      upon   which   Sirois   relies   in   challenging      his

incarceration.        And Sirois points to no case bridging this gap.

As Sirois acknowledges, we generally hold that a defendant cannot

show plain error absent clear and binding precedent.                 See, e.g.,

United States v. Marcano, 525 F.3d 72, 74 (1st Cir. 2008) (per

curiam).

            Sirois does point to Justice White's concurrence in

Powell, 392 U.S. at 548, to support his argument.                  In Powell, a

majority of the Supreme Court concluded that a chronic alcoholic's

conviction for public drunkenness did not violate the Eighth

Amendment, distinguishing Robinson, which the Court had decided

six years earlier.        Robinson held that the Eighth Amendment did


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not permit the imposition of a criminal sanction based on an

individual's status as a narcotics addict.       370 U.S. at 667.     A

four-justice plurality in Powell read Robinson as limited to status

crimes.   392 U.S. at 532.   The public drunkenness statute at issue

in Powell, on the other hand, imposed a criminal sanction "for

public behavior" rather than "mere status."       Id.     Justice White

concurred in the judgment only.      He wrote:   "If it cannot be a

crime to have an irresistible compulsion to use narcotics, I do

not see how it can constitutionally be a crime to yield to such a

compulsion."   Id. at 548 (White, J., concurring in the judgment)

(internal citations omitted).

           Justice White's Powell concurrence is both good news and

bad news for Sirois.     On the plus side, it greatly closes the

extrapolation gap by expressing skepticism that the compulsive use

of narcotics can even be a crime.       But on the other hand, it is

only a concurring opinion.    Even worse, it is one that has yet to

gain any apparent relevant traction, as Sirois is unable to point

us to any federal court of appeals case in the fifty years since

the Court decided Powell and Robinson that has either interpreted

those cases to hold that the Eighth Amendment proscribes criminal

punishment for conduct that results from narcotic addiction, or

has extended their reasoning to this effect.            Whatever Powell

holds, it does not clearly establish a prohibition on punishing an

individual, even an addict, for possessing or using narcotics.


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See United States v. Moore, 486 F.2d 1139, 1142 (D.C. Cir. 1973)

(characterizing such an interpretation as "an amplification and

extrapolation of the Supreme Court's interpretation of the Eighth

Amendment   advanced      in   the    admittedly     confused    and    divergent

opinions in Robinson v. California and Powell v. Texas"); id. at

1150 (noting that "there is definitely no Supreme Court holding"

of addiction as a defense).             And, unlike Powell and Robinson,

Sirois originally committed a crime that he does not claim was

compelled   by   his   addiction       in     any   relevant    manner.      As   a

consequence of his failure to comply with the terms of probation,

he must endure the prison sentence to which his original crime

subjected him.

            We   cannot    ignore       the    reality    that    drug-addicted

defendants are routinely incarcerated for drug use and possession.

Whether this practice is good policy is not the question before

us.   Rather, our inquiry is limited to deciding whether it is

"clear or obvious" that the practice is unconstitutional.                   Given

the state of controlling case law, the answer to that question

must be no.

                                        B.

            As   a   fallback,       Sirois    contends   that    his     two-year

sentence is substantively unreasonable.              Sirois again argues that

science, empirical data, and the facts of his case undermine the

reasonableness of the sentence imposed by the district court.


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Incarcerating drug addicts for drug offenses, Sirois says, runs

counter to an existing effort to combat the opioid crisis through

treatment alternatives.        Sirois does not challenge the procedural

validity of his sentence.

               We recently pointed out that the standard of review for

an     unpreserved      argument   of     substantive          reasonableness    is

"unsettled."       United States v. Azor, 881 F.3d 1, 13 (1st Cir.

2017); see also United States v. Tanco-Pizarro, 892 F.3d 472, 484

(1st    Cir.    2018)     (Thompson,    J.,       concurring)    (discussing    the

applicable standard of review).               Sirois also maintains that he

did, in fact, preserve his argument, a statement the government

disputes.       But even if we review for abuse of discretion -- the

more defendant-friendly standard, applicable to a preserved claim

of error -- we find no basis to question the reasonableness of

Sirois's sentence here. See Tanco-Pizarro, 892 F.3d at 483 (taking

a similar approach).

               "[T]he linchpin of a substantively reasonable sentence

is a plausible sentencing rationale and a defensible result."

United States v. Ayala-Vazquez, 751 F.3d 1, 32 (1st Cir. 2014)

(alteration in original) (quoting United States v. Pol-Flores, 644

F.3d 1, 4-5 (1st Cir. 2011)).                 Although a defendant faces a

"burdensome       task"    challenging        a     sentence    for   substantive

unreasonableness in any case, that task is even more difficult

when, as here, the sentence falls within the guidelines range.


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United States v. Rivera-Clemente, 813 F.3d 43, 52-53 (1st Cir.

2016) (citation omitted).   Such a defendant "must adduce fairly

powerful mitigating reasons and persuade us that the district court

was unreasonable in balancing pros and cons despite the latitude

implicit in saying that a sentence must be reasonable."          Id.

(quoting United States v. Clogston, 662 F.3d 588, 593 (1st Cir.

2011)).

          Quite simply, Sirois has not met that burden here.      In

announcing Sirois's revocation and sentence, the district court

detailed its reasons extensively.      We have reviewed the district

court's recitation of the facts in light of Sirois's arguments,

and see no error.   And despite Sirois's marshalling of scientific

literature, nothing in our precedent compels the conclusion that

a district court does not have the discretion to impose a sentence

of incarceration when a defendant on supervised release -- whether

or not addicted to drugs -- is subsequently found to have committed

multiple violations of those terms, as chronicled above.

                               III.

          For the foregoing reasons, we affirm the judgment of the

district court.




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