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United States v. McCray

United States District Court, W.D. New York

January 9, 2020

UNITED STATES OF AMERICA,
v.
TORRI MCCRAY, Defendant.

          DECISION & ORDER

          LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.

         On February 27, 2019, the defendant, Torri McCray, pleaded guilty to possession with intent to distribute and distribution of fentanyl (Count 1) and 10 grams or more of butyryl fentanyl (Count 2). Docket Item 70. In the plea agreement, Docket Item 69, the government explicitly reserved its right to argue for an upward departure of McCray's Sentencing Guidelines calculation because a death or serious injury resulted from McCray's distribution of narcotics. See United States Sentencing Guidelines (“Guidelines” or “U.S.S.G.”) §§ 5K2.1 and 5K2.2. This Court therefore conducted an evidentiary hearing on that issue on July 19, 2019. See Docket Item 82 (transcript). Post-hearing submissions from both sides were completed by December 9, 2019. See Docket Items 93, 97, 100.

         The principal hearing witness was C.R., a confidential informant who purchased narcotics from McCray in several controlled buys. C.R. testified that on November 21, 2016, he and his best friend, D.S., purchased narcotics from McCray; that they both shared the narcotics that day; and that a few hours later, D.S. was found dead a few doors down from C.R.'s residence. The drugs purchased from McCray were the only drugs they possessed that day. The government also submitted an autopsy report and other medical records, admitted into evidence without objection, concluding that D.S. had died as a result of “acute fentanyl intoxication.” See Government Exhibits 1 and 2.

         After hearing the evidence, reviewing the exhibits, and reading the submissions from both sides, this Court finds that the government has met its burden of proving by a preponderance of the evidence that the death of D.S. resulted from fentanyl distributed by the defendant. The Court therefore concludes that an upward adjustment of McCray's Guidelines calculation may be appropriate under Guidelines section 5K2.1.

         FACTS

         D.S. died as a result of a fentanyl overdose on November 21, 2016. See Docket Item 82 (“Tr.”) at 13-14 (admitting Government Hearing Exhibits 1 and 2 into evidence). Earlier that day, D.S. and C.R. had met with McCray and had paid him $60 for a half gram of heroin or fentanyl. Id. at 61-67. Those were the only drugs that C.R., and his friend D.S., had that day. Id. at 69. C.R. knew that D.S. did not have any other opioids in his possession because D.S. was suffering withdrawal symptoms when they purchased the drugs from McCray. Id. at 70.

         C.R. and D.S. had been purchasing drugs from McCray for several months. Id. at 49, 54, 69, 191-92. C.R. also had another dealer from whom he would purchase drugs when McCray was unavailable, Id. at 39-40, 191-92, but the last time he purchased drugs from the other dealer was at least a couple months before November 21, 2016, Id. at 40.

         When C.R. began purchasing drugs from McCray, he thought he was buying heroin; but when C.R. began drug testing and treatment, he tested positive for fentanyl. Id. at 45-46. That surprised him, and he told McCray. Id. at 45-49, 51-53. McCray nevertheless insisted that he was selling heroin. Id. at 49, 55-56.

         C.R., D.S., and D.S.'s wife purchased drugs as a group. Id. at 55. D.S. and his wife purchased drugs only with C.R., and only from McCray or the other dealer when McCray was not available. Id. at 54-55. When C.R. tested positive for fentanyl, D.S. and D.S.'s wife did as well. Id. at 53-54.

         On November 21, 2016, D.S. and C.R. drove from Lockport, New York, to Buffalo to purchase drugs from McCray. Id. at 61-63. C.R.'s housemate drove the car; C.R. and D.S. were passengers. Id. at 63-64. On the way home, at about 2 p.m., they stopped at a coffee shop so that C.R. and D.S. could use the restroom to take some of the drugs. Id. at 73-77. When they arrived home, they took more. Id. at 79-81. The drugs they purchased from McCray were the only drugs they had that day. Id. at 80.

         C.R. fell asleep; when he awoke, D.S. was gone and so was the bag of drugs. Id. at 82-87. Later, C.R. learned from the police that D.S. had died a few doors down from C.R.'s house. Id. at 95. The police also told C.R. that D.S. was found with a bag of drugs in his pocket-a bag of drugs that matched what they had purchased from McCray earlier that day. Id. at 109.

         The next day, C.R. purchased more drugs from McCray. Id. at 115-16. When C.R. told McCray that D.S. had died the day before, McCray “showed remorse” and “seemed to be a little upset about it.” Id. at 117. C.R. continued to buy drugs from McCray for another month or so-that is, until C.R. checked himself “into a detox facility.” Id. at 133-34.

         A few months later, C.R. and D.S.'s wife decided that they should do something about D.S.'s death, and C.R. therefore began to cooperate with law enforcement. Id. at 134-35. He was not given anything for his initial cooperation; however, he later was paid to make some controlled buys from McCray in June and July of 2017. Id. at 135-39.

         At the hearing, C.R. was shown Exhibit 7, the bag of drugs recovered from D.S.'s pocket on the day D.S. died. Id. at 131-32. Per stipulation of the parties, the bag contained 0.07 grams of fentanyl and would have contained 0.08 grams before about 0.01 grams were tested. Id. at 198-99. C.R. testified that the bag of drugs looked like what he had purchased from McCray. Id. Although he could not say whether the amount of drugs in the bag was less than when he had last seen it, Id. at 132, C.R. did recall that ...


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