No Clear Error In Upward Variance Based on Fentanyl Potency

US v. Roy: Roy was involved in a pair of traffic stops within tens days of each other. In the first he was the driver of a car from which nearly 62 grams of fentanyl was recovered. In the second, he was the driver of (another) car pulled over after a reported shoplifting from which a firearm was recovered. Roy wound up pleading guilty to aiding and abetting the possession with intent to distribute fentanyl and being a felon in possession of a firearm. The district court ultimately varied upward from the Guideline range, imposing a sentence of 120 months in prison. In doing so, the district court emphasized the lethality of fentanyl, complete with an anecdote that a police officer had told him not to handle fentanyl as it could be lethal.

On appeal, the Fourth Circuit affirmed Roy’s sentence. Roy argued that the district court erred by either basing its sentence on clearly erroneous information or evidence that was outside the record. With regard to the general lethality of fentanyl and the prevalence of it in the nationwide overdose epidemic, the court found no clear error and cited numerous sources that supported that conclusion. As to the lethality of fentanyl to the touch, the court pointed to some government reports that might support that conclusion, as well as contrary evidence from scientific sources. In light of the competing evidence, the court held that the district court’s invocation of fentanyl being lethal to the touch (if it drove the sentence at all) could not be clearly erroneous.