# Un ited St ates Cou rt of Ap peals For t h e Firs t C ircu it

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. Micha e l J. Sullivan, United States Attorney, and David Hennessy, Assistant United States Attorney, on brief for appellee.

May 31, 2007-2- SELYA, Senior Circuit Judge. Defendant-appellant Manuel Pacheco pleaded guilty to a count that charged, in effect, that he

co n s p i r e d t o d i s t r i b u t e c o n t r o l l e d s u b s t a n c e s . S e e 2 1 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 r e s ulted from the offense conduct. The defendant appeals. Discerning no error, we affirm. I. BACKGROUND

Be c a u s e t h i s a p p e a l f o l l o w s a g u i l t y p l e a , w e t a ke the relevant facts from the change-of-plea colloquy, the unchallenged porti o n s of the presentence investigation report, the victim's hospital records (submitted by the de f e n dant 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 2 7 , 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 add r e ss in Reseda, California, and MG's mother reasonably concluded that the ketamine had arrived in it.The record is sparse as to the relationship between 1 milliliters and milligrams of ketamine. -3- Emergency medical personnel transported M G to a nearby hospital. Physicians admitted him to i n t e nsive 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 milli l i ters 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 p ackageThis address belonged to a neighbor who permitted the 2 defendant to use it for correspondence. -4-contained five bottles of ketamine and an invoice listing MG's email 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
. , s h ipments from the Reseda address listed as the return address on the June 19 priority-mail envelope that had been sent to MG) containing steroids of various types. 2 On October 12, federal agents armed w i th 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. T h e search also turned up approximately fifty-five boxes of steroids, packaging materials, priority-mail envelopes and labels , a n d a loaded revolver.

The agents proceeded to interview the defendant. He took responsibil i t yfor 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-5-

claimed that he had stopped distributing ketamine — a horse tranqui l l i zer 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. Avehicle 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 a g a inst 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 defen d a nt's objection, the court then invoked USSG §5K2.2 a n d d e parted upward on the ground that the defendant's actions had resulted in significant injuries to MG (who did not testify at the disposition hearin g )
. Accordingly, the court imposed a 36-mo n t h 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-6-

post-Booker world, a sentencing court must follow a four-step progression. The court's task begins with ca l c u lating 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 othe r relevant information. Finally, the court must determine what sentence ( w hether 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, 4 40 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 explain s w h at 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 permane n t , a nd the extent to which th e i n jury was intended or knowingly risked. When the v i ctim suffers a major, permanent disability and when such-7- 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 cre a te the risk of harm, a less substantial departure would be indicated. Id.
T he 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 physi c al injuries resulted from ketamine that he furnished.

This line of argument has two branches. F i r s t, the defendant claims that MG had other suppliers, so the defendant was not necessarily responsible for selling him the ketamine that contributed to the nea r - f atal 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 guidelin e s r e gime, 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 sentenci n g court committed a n error of law in interpreting or applying the guidelines. United Stat e s v . P h o , 433 F.3d 53, 60-61 (1st Cir.This appeal does not require us to decide whether a district 3 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. -8- 2006)
. Conversely, we review a sentencing court's factual findings, including the findings that undergird departure determinations, for clear error. United Sta t e s v. Wallace, 461 3 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 t o p r o v e t h a t h e — a n dn o t s o m e o t h e r s o u r c e — s u p p l i ed 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.-9- Although cleverly contrived, this argument will not wash. In determining whether the government has carr i e d the devoir of persuasion at sentencing, t h e district court must employ a preponderance of the evidence standard. See, e.g., United States

v. L e a h y , 473 F.3d 401, 413 (1st Cir. 2007); United States v. Green, 426 F.3d 64, 66 (1st Cir. 2005). The record adequ a t e ly evinces that the government carried its burden here.

The evidence before the d i s t rict 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 b e l i e ved 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 traceableto the defendant. While there was a lag of roughly five and onehalf 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 fac t that another batch of ketamine was waiting, unclaimed, could well confirm, rather t h an undermine, that the defendant was the likely source of the ketamine ingested by MG.-10- To be sure, it is possible that MG had other sources of ketamine available to him. But the record con t a i n s n o proof of that conjecture. More importantly, we believe that in light of the

c h r o nology 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, 4 8 0 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 re g a r d l ess 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 ra t h e r 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 di s t i l l the harms caused by each substance.-11-

C f
. U nited States v. Carbajal, 290 F.3d 277, 286 (5th Cir. 2002) (discussing testimony o f g overnment's medical expert, offered at sentencing for a similar purpose).

Whatever help such an expert migh t h ave 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 e x p e r t witness, nor did he suggest that the g o v ernment needed to present extrinsic expert opinion testimony in order to show causation. Accordingl y , 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 r a ised 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 avail a b l e . See United States v. Duarte, 246 F.3d 56, 60 (1st Ci r . 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-12-

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, t h e d e fendant points out that MG used ketamine on a daily basis without apparent incident; that a comment in the hospital chart st a t e s that "[k]etamine abuse, common in adolescents/young a d u lts[,] is very wel l 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 s a id, section 5K2.2 authorizes a departure "[i]f significant physical injury resulted" from t he 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 relat e d g u i d eline — USSG §5K2.1 — is quite helpful. That guideline authorizes an upward departure "[i]f death resulted" from the offense conduct. U S SG §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-reference s t h e former. See id. §5K2.2 (stating that "[i]n general, the same considerations apply as in §5K2.1"). We are-13-

confident, therefore, that precedent unde r s ection 5K2.1 is of great utility in construing section 5K2.2.

We have construed section 5K2.1 to allow a departure when "a d e fendant 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)
. T h u s , 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 injurie s ; i t h a d to show only that there was a but-for causal connection between ketamine and those injuries.

The evi d e n ce before the district court easily met this bench m a rk. 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 disposit i o n h earing, defense counsel expostulated that the h o spital records indicated an "overdose on July 27th of 200 milligrams of ketamine, plus heroin."-14-

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

The chronology of events supports the view th a t MG's inj u r ies 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 infer e n ce 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 t hat 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 heroinD e spite this hyperbole, it is far from clear that MG 4 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 i n c onclusive about whether or not he set out to commit suicide. This appeal does not require us to resolve that uncertainty. -15- 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
req u i r e m ent for an upward departure under section 5K2.2 is welltaken. 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). TheWe add, in p a s s ing, that the defendant here engaged in the 5 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 t h a t unfolded here, he could (and should) have foreseen the possibility of the kind of serious harm that in fact occurred. -16- 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 acti o n s p r e c l u d e da n u p w a r dd e p a r t u r e h e r e . T h e d e f e n d a n t 's attempt to package this as an "intervening cause" argument is a misnom e r . S i n c e s e c t i o n 5 K 2
. 2 d o e s n o t s p e c i f ya f o r e s e e a b i l i ty requirement, our earlier holding that ketamine was a but-for cause of the significant physical injur i e s sustained by MG, see supra Part II(C)(1), fully disposes of any argument that MG's ac t i ons severed the ketamine-linked chain of causation. 5

We add an eschatocol o f sorts. To the extent that a defendant's intent has a role to play in the section 5K2.2 departure calculus, that role relates t o t h e 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 atIt perhaps bears mentioning that the district c o u r t did not 6 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. -17- 101 (stating, in connection with s e ction 5K2.1, that "[a]meliorating factors " w ould 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 s e n t encing court acted appropriately in applying the guideline.

Affirmed.