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United States v. Hurley

United States Court of Appeals, First Circuit

November 23, 2016

UNITED STATES OF AMERICA, Appellee,
v.
KYLE HURLEY, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE [Hon. Joseph N. Laplante, U.S. District Judge]

          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.

          Before Torruella, Lynch, and Lipez, Circuit Judges.

          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 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 mixer, spraying the leaves with two chemicals, AB-FUBINACA and XLR11, and then applying acetone to the product to dry it out.

         B. Proce ...


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