Friday, July 30th, 2021

A substance can be an “analogue” of fentanyl for purposes of 21 U.S.C. § 841(b)(1)(B)(vi) — requiring a 5-year minimum sentence where the offense involved “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl — even if it does not qualify as a “controlled substance analogue” under 21 U.S.C. § 802(32).

Torri McCray was charged under 21 U.S.C. § 841(b)(1)(B)(vi) for distributing 10 grams or more of “butyryl fentanyl,” an analogue of fentanyl under the ordinary meaning of the term “analogue.” As Webster’s New Collegiate Dictionary puts it, an “analogue” in the relevant chemistry context is “a chemical compound structurally similar to another but differing often by a single element of the same valence and group of the periodic table as the element it replaces.”

Everyone, including McCray, agrees that butyryl fentanyl is an analogue of fentanyl under this definition. And if this definition governed for purposes of § 841(b)(1)(B)(vi), then McCray would be subject to a 5-year mandatory minimum: Such a sentence is required when the defendant distributes “10 grams or more of a mixture or substance containing a detectable amount of any analogue of” fentanyl.

But McCray disagrees that the ordinary definition of “analogue” applies to § 841(b)(1)(B)(vi). He argues that instead of looking to “the dictionary to define the term ‘analogue,’” the Court should rely on “the definition of ‘controlled substance analogue’ in § 802(32).” And butyryl fentanyl is not a “controlled substance analogue” because that term “means a substance [] the chemical structure of which is substantially similar to the chemical structure of a controlled substance in schedule I or II . . . [but] does not include [] a controlled substance.”

Butyryl fentanyl is listed as a controlled substance — “[a]t the time of McCray’s offense conduct, federal drug schedules had temporarily designated butyryl fentanyl as a Schedule I controlled substance.” Indeed, it “remains a Schedule I controlled substance.” Thus, butyryl fentanyl is not a “controlled substance analogue.”

In United States v. McCray, No. 20-2545 (2d Cir. July 29, 2021) (opinion by Judge Nardini, joined by Judge Lohier and District Judge Kovner, by designation), the Circuit affirms the judgment below and rejects McCray’s reading of “analogue” within the meaning of § 841(b). The explanation is simple: Because “Congress wrote § 841(b)(1)(B)’s enhanced penalty to apply to ‘any analogue of [fentanyl]’” and “did not define ‘analogue”’ or ‘any analogue of [fentanyl],’ . . . we employ the word’s ordinary meaning when interpreting the statute.” And as everyone agrees, butyryl fentanyl is an analogue of fentanyl under the ordinary definition.

Moreover, “controlled substance analogue” is a “term of art” used elsewhere in the same subchapter, but not in § 841(b)(1)(B)(vi). And “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”


McCray also argued that the district court erred in departing upwardly by 30 months (to a 90-month sentence) under U.S.S.G. § 5K2.1, which states that “If death resulted, the court may increase the sentence above the authorized guideline range.” This is a fact-specific point not worth extended discussion.

The Circuit reminds us that “the standard of proof for the district court’s factual findings at sentencing, including when considering a departure under U.S.S.G. § 5K2.1 based on uncharged conduct, is a preponderance of the evidence.” But it mentions a supplemental point that is often lost – that “[a] district court should, however, take into consideration the degree of proof satisfied beyond a preponderance when exercising its discretion to decide whether and how much to depart.”

Thus, even though “due process” does not “require the district court to apply a higher standard of proof than a preponderance of the evidence,” the Circuit nonetheless requires the sentencing court to consider the strength of the Government’s proof “beyond a preponderance” in determining whether to deviate (and by how much) from the Guidelines range. See United States v. Cordoba-Murgas, 233 F.3d 704, 710 (2d Cir. 2000). Thus, “the factual finding by a preponderance of the evidence is [but] a preliminary step susceptible to adjustment.” Where the court finds facts supporting a deviation “by merely a preponderance of the evidence” but “has substantial doubts whether the defendant is in fact responsible,” the court retains discretion not to depart or to depart by only a small amount.

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