United States v. Sirois , 898 F.3d 134 ( 2018 )


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  •           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
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    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
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    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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