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United States v. McCrary.

No. 21-6047. 7/26/2022. W.D.Okla. Judge Ebel. Fentanyl Possession and Distribution—Sentencing Factors—Procedural and Substantive Unreasonableness Challenges to Sentence—Appellate Waiver.

July 26, 2022

While a student at Oklahoma State University, defendant became addicted to Xanax, heroin, and fentanyl. In 2016, defendant sold 10 fentanyl “gel squares” to his roommate, Jonathan Messick, and another friend, Gabe Stewart. Several days later, after smoking marijuana and drinking alcohol, Messick and Stewart each ingested one of the fentanyl squares. Messick soon found Stewart unresponsive but breathing. Messick declined to call 911 and instead went to sleep. When he awoke the next morning, Stewart was dead. The medical examiner ruled that Stewart had died from the combination of alcohol and fentanyl.

Stewart’s father contacted the FBI in 2017. Following interviews, the United States obtained an indictment against defendant, charging him with (1) conspiring to possess fentanyl with intent to distribute, and (2) knowingly and intentionally possessing fentanyl with intent to distribute. By this time, defendant had graduated, had successfully undergone rehabilitation to overcome drug addiction, and was working at a bank.

Defendant entered into a plea agreement and pleaded guilty to count 2 in return for the dismissal of count 1. He acknowledged in writing that the statutory maximum was 20 years in prison and that the judge could impose a sentence either above or below the advisory range. At sentencing, the court determined the advisory guideline sentencing range was between 6 and 12 months in prison. Both parties relied on the sentencing factors in 18 USC § 3553(a) and argued for a sentence outside the advisory guideline range. The district court applied the factors upward and imposed a 48-month sentence. Defendant appealed, contending that his sentence was both procedurally and substantively unreasonable.

The Tenth Circuit first determined that defendant waived his appellate arguments challenging the procedural reasonableness of his sentence. In particular, the written waiver expressly waived the right to appeal “the manner in which the sentence is determined.” The appellate arguments challenging the procedural reasonableness of the sentence therefore fell squarely within the scope of the waiver. Next, defendant knowingly and voluntarily waived his appellate rights. The appellate waiver was set forth in the plea agreement and addressed during the plea colloquy. Finally, the Tenth Circuit concluded that enforcing the waiver would not result in a miscarriage of justice.

After noting that defendant did not waive his appellate arguments challenging the substantive reasonableness of the sentence, the Tenth Circuit held that the district court did not abuse its discretion in imposing a 48-month sentence. The district court clearly explained its reasons for imposing the sentence. In particular, the court chose to weigh the fact that the offense involved a dangerous illicit drug that resulted in Stewart’s death heavier than defendant’s post-offense rehabilitation. While another court might have reasonably imposed a shorter sentence, the above-guideline sentence was not arbitrary, unreasonable, or outside the range of permissible choice. The Tenth Circuit also noted that other circuits have upheld upward-variant sentences as substantively reasonable based on the danger posed by fentanyl.

The sentence was therefore affirmed.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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