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United States v. Demers

United States Court of Appeals, First Circuit

November 16, 2016

RYAN DEMERS, Defendant, Appellee.


          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.

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

          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 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.

         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 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 ...

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