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 
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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 
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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). 
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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 
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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 ABFUBINACA 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, 
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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 
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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 
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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. 
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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 
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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.