Upward Variance Where Death Occurred After Drug Distribution Is Reasonable

US v. McKinnie: McKinnie sold Nelson “‘China White,’ a potent narcotic containing fentanyl” twice within the span of a few days. The day after the second sale, Nelson died of “acute intoxication of alprazolam, heroin, and fentanyl.” McKinnie pleaded guilty to distribution of fentanyl, but a count charging distribution resulting in death was dismissed as part of a plea agreement. Due to the small amount of drugs involved, McKinnie’s advisory Guideline range was 21 to 27 months. There was no Guideline enhancement related to Nelson’s death. Pursuant to a Government request for an upward variance, the district court sentenced McKinnie to 120 months in prison, concluding that he “absolutely manifested a complete disregard for human life” and had a “callous” disregard of the risk of distributing fentanyl. The court also pointed to McKinnie’s “extensive criminal history along with his failure to respond to leniency shown for previous convictions.” 

On appeal, the Fourth Circuit affirmed McKinnie’s sentence. Primarily, McKinnie argued that the district court procedurally erred by considering his role in Nelson’s death where he was neither convicted of a death-resulting count nor subject to a Guideline enhancement based on Nelson’s death and the district court did not make a but-for finding that his fentanyl was the cause of Nelson’s death. The court disagreed, concluding that “evidence of causation, even if it does not meet the but-for standard, is clearly relevant to the circumstances and seriousness of an offense and may thus be properly considered under the 3553(a) variance analysis.” That said, the court also concluded that such a but-for finding was made, even if the district court did not use the “magic words.” The court ultimately concluded that the district court satisfactorily explained its reasons for imposing the 120-month sentence and that the sentence was substantively reasonable.