United States v. McCray, No. 20-2545 (2d Cir. 2021)
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McCray pleaded guilty to possession with intent to distribute and distribution of fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(C), and one of two counts of possession with intent to distribute and distribution of 10 grams or more of butyryl fentanyl, 21 U.S.C. 841(a)(1) and (b)(1)(B).
The Second Circuit affirmed. A substance can be an “analogue” of fentanyl for the purposes of 21 U.S.C. 841(b)(1)(B)(vi) even if it is not a “controlled substance analogue” under 21 U.S.C. 802(32). Section 841(b)(1)(B)(vi) provides fair notice that dealing in 10 grams or more of a substance that is an “analogue” of fentanyl under the ordinary meaning of the word, even if that substance is not a “controlled substance analogue,” is subject to the subsection’s enhanced penalty. The district court did not clearly err in concluding that an earlier sale was relevant to McCray’s offense conduct or in finding that the victim’s death resulted from the sale. The court did not abuse its discretion when departing upwards from the Guidelines range by 30 months based on the weight of the evidence that McCray sold the fentanyl that killed the victim. The district court appropriately applied the preponderance of the evidence standard when making factual findings at sentencing.
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