United States v. McCrary

• Decision Date: 26 July 2022
• Docket Number: 21-6047
• Citation: 43 F.4th 1239
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Robert James MCCRARY, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

43 F.4th 1239

UNITED STATES of America, Plaintiff - Appellee,

v.Robert James MCCRARY, Defendant - Appellant.

No. 21-6047

United States Court of Appeals, Tenth Circuit.

FILED July 26, 2022

Andrew M. Casey, Foshee & Yaffe, Oklahoma City, Oklahoma (Shannon M. McMurray, Tulsa, Oklahoma, with him on briefs), for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (Robert J. Troester, Acting United States Attorney and Mark R. Stoneman, Assistant United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

Before MORITZ, EBEL, and KELLY, Circuit Judges.

EBEL, Circuit Judge.

In this direct criminal appeal, Defendant-Appellant Robert McCrary challenges his forty-eight-month prison sentence for possessing fentanyl with the intent to distribute it. Although within the twenty-year statutory maximum for that offense, McCrary's forty-eight-month sentence was four times higher than the high end of the advisory guideline range.

The district court varied upward after concluding McCrary's post-offense rehabilitation did not outweigh the fact that the fentanyl McCrary distributed resulted in another's death. On appeal, McCrary contends that his sentence is both procedurally and substantively unreasonable. We conclude that the appeal waiver to which McCrary agreed precludes our review of his procedural arguments and that his sentence is substantively reasonable. Having jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we, therefore, AFFIRM his sentence.

I. BACKGROUND

A. McCrary's offense

In 2012, McCrary began college at Oklahoma State University. There, he and his roommate, Jonathon Messick, both became addicted to Xanax, heroin and fentanyl. In August 2016, Messick and another friend, Gabe Stewart, bought ten fentanyl "gel squares" from McCrary. Several days later, on August 29, 2016, after smoking marijuana and spending the night drinking alcohol at several bars, Messick and Stewart returned home and each ingested one of the fentanyl gel squares they had obtained from McCrary. Soon thereafter, Messick discovered Stewart unresponsive but breathing. Messick called another friend to ask what he should do. That friend advised Messick that Stewart was overdosing and gave Messick several suggestions, including calling 911. Messick instead went to sleep. When Messick awoke the next morning, Stewart was dead. The medical examiner ruled that Stewart had died from the combination of alcohol and fentanyl ; "either the ethanol or fentanyl were survivable by themselves, but the combination of the two led to G. Stewart's death."¹ (II R. (sealed) 49 ¶ 11.)

B. The Government prosecutes McCrary several years later

Almost a year later, Stewart's father contacted the Federal Bureau of Investigation ("FBI"), telling agents that Messick had supplied Stewart with the fentanyl that contributed to his death. The FBI interviewed Messick a year after that, in November 2018. Messick told agents that he and Stewart obtained the fentanyl from McCrary. In September 2020, the United States obtained an indictment against McCrary, charging him with two offenses: 1) conspiring, in 2016, to possess fentanyl with the intent to distribute it, and 2) knowingly and intentionally possessing fentanyl during the month of August 2016 with the intent to distribute it. By this time, McCrary was twenty-six years old, had completed his college degree, had successfully undergone rehabilitation in 2018 to overcome his drug addiction, and was working at a bank in Tulsa to help support his family.

C. McCrary's guilty plea

Two months after he was indicted, McCrary, in November 2020, entered into a plea agreement with the Government and pled guilty to Count 2. In return, the Government agreed to dismiss Count 1. The plea agreement contained an appeal waiver, discussed in greater detail below.

Before pleading guilty, McCrary acknowledged in writing that the district judge would determine his sentence; the statutory maximum for Count 2 was twenty years in prison; the judge would consider the advisory guideline sentencing range, but could "impose a sentence either above or below that range"; in calculating the advisory sentencing range, "the judge will take into account all conduct, circumstances, and injuries associated with your criminal conduct, whether or not this conduct is formally charged by the government"; and that "there is no limitation placed on the information the judge can consider at the time of sentencing concerning your background, character, and conduct so long as the information is reliable." (I R. 19 ¶¶ 25–27.) McCrary also acknowledged, both in writing and again verbally at his plea colloquy, that he had read the plea agreement, discussed it with his attorney, and understood all of its terms.

In pleading guilty to Count 2, McCrary admitted: "During the month of August 2016 I knowi[ng]ly possessed what I thought was fentanyl. During this month I gave some to my former room[m]ate Jonathon Messick. This all took place in Stillwater OK." (I R. 23.)

D. The district court imposes an above-guideline sentence

At sentencing, the district court determined that McCrary's advisory guideline sentencing range was between six and twelve months in prison.² McCrary did not challenge that calculation at sentencing, and does not challenge it now on appeal.

In preparation for sentencing, both parties invoked specific guideline provisions and requested that the sentencing court depart from the advisory guideline range. The district court declined to rely on the guidelines to depart up or down from the advisory range: "even if departure were authorized under the facts of this case, I am exercising my discretion not to depart." (III R. 56.)

Both parties also relied on the sentencing factors set forth in 18 U.S.C. § 3553(a) to argue for a sentence outside the advisory guideline range. Those sentencing factors include, among others, "the nature and circumstances of the offense and the history and characteristics of the defendant," as well as "the need for the sentence ... to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense." 18 U.S.C. § 3553(a)(1), (a)(2)(A).³

Based on the § 3553(a) factors, the Government argued for an upward variance to a five-year sentence because Stewart had died from the fentanyl McCrary distributed. McCrary's attorney, on the other hand, sought a downward variance to probation, arguing that there was no reason to put McCrary in prison at all in light of his rehabilitation.

The district court denied McCrary's request for a downward variance. Instead, the district court applied the § 3553(a) factors to vary upward, imposing a forty-eight-month sentence because the six-to-twelve-month advisory guideline range "does not account for the fact that fentanyl is significantly more dangerous than other drugs, nor does it reflect your other drug-related activities and seemingly sincere lack of remorse or appreciation for your contribution to this circumstance," meaning Stewart's death. (III R. 80.) The Court based that last comment on what it "perceive[d]" was McCrary's "lack of sincere acknowledgement of the seriousness of the offense," based on McCrary's assertion at sentencing that "[t]he worst part about this whole situation is seeing the stress it is putting my mom through," rather than Stewart's death. (Id. at 79–80.) The district court acknowledged McCrary's "participation in treatment, your sobriety, and the other arguments advanced by your attorney, which weigh greatly in your favor," but concluded that McCrary's "previous actions put the community at great risk and caused even greater harm; and they require a sentence that not only reflects the seriousness of the offense but one that also protects the public and deters you from future criminal conduct." (Id. at 80–81.)

II. DISCUSSION

On appeal, McCrary contends that his sentence is both procedurally and substantively unreasonable. "Procedural reasonableness addresses whether the district court incorrectly calculated ... the Guidelines sentence, treated the Guidelines as mandatory, failed to consider the § 3553(a) factors, relied on clearly erroneous facts, or failed to adequately explain the sentence." United States v. Haggerty, 731 F.3d 1094, 1098 (10th Cir. 2013) (quoting United States v. Huckins, 529 F.3d 1312, 1317 (10th Cir. 2008) ). Substantive reasonableness, on the other hand, " ‘addresses whether the length of the sentence is reasonable given all the circumstances of the case in light of the factors set forth in 18 U.S.C. § 3553(a).’ " United States v. Craine, 995 F.3d 1139, 1158 (10th Cir. 2021) (quoting United States v. Miller, 978 F.3d 746, 753 (10th Cir. 2020) ), cert. denied, ––– U.S. ––––, 142 S. Ct. 502, 211 L.Ed.2d 304 (2021). As we explain next, we uphold McCrary's sentence. McCrary, in his plea agreement, waived his appellate challenges to the procedural reasonableness of his sentence and we conclude that his sentence is substantively reasonable.

A. McCrary waived his appellate arguments challenging the procedural reasonableness of his sentence

McCrary first argues that his sentence is procedurally unreasonable because, in determining his sentence, the district court relied on clearly erroneous facts, failed to explain its sentence adequately, and erred in responding to McCrary's objections to some of the facts contained in the PSR. The Government counters that the appeal waiver in McCrary's plea agreement precludes this court from reviewing these procedural arguments; the Government, therefore, asks this Court to enforce the appeal waiver.

In relevant part, the appeal waiver in McCrary's plea agreement provided:

12. Defendant understands that the Court will consider the factors set forth in 18 U.S.C. § 3553(a) in determining Defendant's sentence. Defendant also understands that the Court has jurisdiction and authority to impose any sentence within the statutory maximum for

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