United States of America v. Ricky Sirois

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

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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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