          United States Court of Appeals
                     For the First Circuit


No. 15-2541

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                          KYLE HURLEY,

                      Defendant, Appellant.


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

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


                             Before

                  Torruella, Lynch, and Lipez,
                         Circuit Judges.



     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.



                        November 23, 2016
           TORRUELLA, Circuit Judge.       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.

                             I.   BACKGROUND

A.   Factual Background

     1.    Hurley's Arrest

           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



                                   -2-
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.

     2.     Hurley's 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


1  The damiana plant grows in subtropical regions of the Americas
and Africa and is widely used in traditional medicine and as a
food flavoring. Catherine E. Ulbricht, Natural Standard Herb &
Supplement Guide 279 (2010).


                                 -3-
mixer, spraying the leaves with two chemicals, AB-FUBINACA and

XLR11, and then applying acetone to the product to dry it out.

B.     Procedural History

            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 (or other synthetic

cannabinoids), 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


                                         -4-
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,




                                       -5-
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.

                                II.    ANALYSIS

              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


                                       -6-
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.      See

United States v. McDonald, 804 F.3d 497, 503 (1st Cir. 2015)

("Because [the defendant] raises the argument . . . for the first

time on appeal, we review this part of his argument for plain

error.").    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 support his

argument that marihuana is the proper comparator because it, like


                                 -7-
his product, contains plant matter.       But the majority in Ramos

rejected   that   argument,   reasoning    that    "while   synthetic

cannabinoids, such as XLR–11, are listed in Schedule I," the

product mixture sold by the defendants was "not independently

listed on any drug schedule."     Ramos, 814 F.3d at 919.      Plain

error presents a "high bar," Ríos-Hernández, 645 F.3d at 463, and

it is not obvious that the dissent in Ramos, rather than the

majority, has the better argument.2

           Hurley also asserts that the district court erred in

applying the 1:167 ratio "even if synthetic cannabinoid product

were somehow the equivalent of pure THC."      In support, he cites

United States v. Hossain, No. 15-cr-14034, 2016 WL 70583 (S.D.

Fla. Jan. 5, 2016).   There, the district court determined that THC

was the best comparator for XLR11.    Id. at *4.   But it found that

the 1:167 ratio had "no cognizable basis" and so varied the

sentence downward using a 1:7 ratio offered by a defense expert.

Id. at *4-6.   Following this reasoning, Hurley asserts that "the

district court erred in failing to apply a one-to-seven ratio" and

in not converting "[t]he stipulated 1,451 kilograms" of synthetic




2  We take no position on the outcome under a different standard
of review or where a defendant makes a different argument than
Hurley made.


                                -8-
cannabinoid     product      "to     10,157    kilograms    [of]    marijuana

equivalence, for a base offense level of 34."

          Hurley's argument is without merit.               District courts

"must start out by calculating the proper Guidelines range -- a

step so critical that a calculation error will usually require

resentencing."        United States v. Rodríguez, 630 F.3d 39, 41 (1st

Cir. 2010).      After it determined that THC was the appropriate

comparator,     the    district     court    correctly   applied   the   1:167

multiplier listed in the Guidelines, applied other credits and

enhancements,    and     calculated    the    recommended   sentence.     The

district court could not apply a 1:7 ratio, which has no foundation

in the Guidelines, to calculate Hurley's recommended sentence.

Hossain does not support Hurley's position; that court first

calculated a total offense level using the 1:167 ratio and only

then used the 1:7 ratio as one factor in calculating a downward

variance under 18 U.S.C. § 3553.            2016 WL 70583, at *4-6.

          We recognize, as the district court did below -- and the

Government appeared to accept -- that applying the 1:167 ratio to

a product that, by weight, consists primarily of inert plant matter

creates an "anomaly, [because of] the severity of the way this

conversion rate works."            The anomaly is also reflected in the

recommended Guidelines sentence of 292-365 months, which exceeds




                                       -9-
the   240-month   maximum     sentence     allowed   under   21   U.S.C.

§ 841(b)(1)(C).

          The "severity of the drug quantity conversion rate" led

the district court "to vary [Hurley's sentence] downward to where

the case more closely approximates a marijuana distribution case."

The Government does not challenge that variance, and we see no

error in it.   We observe, however, that the Sentencing Guidelines

are meant to provide "a framework or starting point to guide the

exercise of the court's discretion," which "promotes uniformity

and fairness in sentencing."       United States v. Marchena-Silvestre,

802 F.3d 196, 200 (1st Cir. 2015) (internal quotation marks and

alterations omitted) (quoting United States v. Millán-Isaac, 749

F.3d 57, 66-67 (1st Cir. 2014)).           Here, the lack of either a

specific conversion rate or a clear comparator may harm both

uniformity and fairness.     We therefore believe that the Sentencing

Commission should address this issue with greater clarity and

provide a rationale.

                            III.    CONCLUSION

          For the foregoing reasons, the district court's sentence

is affirmed.

          Affirmed.




                                    -10-
