United States District Court, W.D. New York
DECISION & ORDER
LAWRENCE J. VILARDO UNITED STATES DISTRICT JUDGE.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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