United States v. McCray
| Decision Date | 28 September 2018 |
| Docket Number | 17-CR-147 |
| Parties | UNITED STATES of America, v. Torri MCCRAY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Meghan A. Tokash, U.S. Attorney's Office, Buffalo, NY, for United States of America.
Brian P. Comerford, Jeffrey T. Bagley, Federal Public Defender, Buffalo, NY, for Defendant.
DECISION AND ORDER
The defendant was indicted in August 2017 on charges that he violated the Controlled Substances Act, as amended ("the Act"), by possessing with intent to distribute and distributing butyryl fentanyl. Docket Item 1. The Act provides that it is "unlawful for any person knowingly or intentionally ... to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). The Act also provides an enhanced penalty for violations of § 841(a)"involving ... 10 grams or more of a mixture of substance containing a detectable amount of any analogue of [fentanyl]."1 Id. § 841(b)(1)(B)(vi).
The question before the Court is whether this enhanced penalty applies here. More specifically, the parties dispute the meaning of the term "analogue" under § 841(b)(1)(B)(vi) and whether butyryl fentanyl is "any analogue of" fentanyl under the specific penalty provision. Although the Act defines the term "controlled substance analogue," id. § 802 (32), it does not define the term "analogue" or "any analogue of fentanyl." And by defining "controlled substance analogue" without defining "analogue," the drafters created a thorny definitional problem.
Under the Act, the term "controlled substance analogue" excludes "a controlled substance." Id. Butyryl fentanyl is a controlled substance. See Schedules of Controlled Substances: Temporary Placement of Butyryl Fentanyl and Beta-Hydroxythiofentanyl Into Schedule I, 81 Fed. Reg. 29492 (May 12, 2016) ; Schedules of Controlled Substances: Placement of Butyryl Fentanyl and U-47700 Into Schedule I, 81 Fed. Reg. 17486 (Apr. 20, 2018) ( 21 C.F.R. § 1308.11 ). Therefore, butyryl fentanyl is not a "controlled substance analogue." 21 U.S.C. § 802(32). Does that mean it is not an "analogue of fentanyl" because fentanyl is itself a controlled substance? Although the result may seem counterintuitive, this Court agrees with the government and concludes that although butyryl fentanyl is not a controlled substance analogue, it is an analogue of fentanyl. Therefore, the Act does not preclude a controlled substance such as butyryl fentanyl from being charged as an "analogue of fentanyl" under § 841(b)(1)(B)(vi).
On August 15, 2017, McCray was charged in a three-count indictment. Docket Item 1. Count one, which is not at issue here, charges him with possessing with intent to distribute and distributing a quantity and mixture containing fentanyl, butyryl fentanyl, furanyl fentanyl, and U-47700. Id. Counts two and three charge him with possessing with intent to distribute and distributing "10 grams or more of a mixture and substance containing butyryl fentanyl
, ... an analogue of N-phenyl-N-[1-(2-phenylethyl)-4-piperidinyl] propenamide (fentanyl)," in violation of 21 U.S.C. § 841(a)(1) and § 841(b)(1)(B). Id. On August 17, 2017, this Court referred the matter to United States Magistrate Judge Jeremiah J. McCarthy for all proceedings under 28 U.S.C. § 636(b)(1)(A) and (B). Docket Item 2.
In March 2018, McCray moved to dismiss counts two and three, contending that because of the definitional issue described above, the indictment fails to state an offense that falls within the scope of the specified provision of the Act. Docket Item 25. On May 22, 2018, Judge McCarthy issued a Report and Recommendation ("R & R"), recommending that McCray's motion be granted in part and denied in part. Docket Item 35 at 4. Judge McCarthy agreed with the defendant that because butyryl fentanyl is a controlled substance and because controlled substances are expressly excluded from the definition of "controlled substance analogue," butyryl fentanyl was not an "analogue of fentanyl," and the enhanced penalty under 21 U.S.C. § 841(b)(1)(B)(vi) therefore did not apply. On June 7, 2018, the government timely objected to the R & R, Docket Item 39; on June 21, 2018, the defendant responded, Docket Item 41; and on June 22, 2018, the government replied, Docket Item 41. The government supplemented its response on July 17, 2018, Docket Item 43, and this Court heard oral argument on September 6, 2018, Docket Item 46.
A district court may accept, reject, or modify the findings or recommendations of a magistrate judge. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). A district court must conduct a de novo review of those portions of a magistrate judge's recommendation to which an objection is raised. 28 U.S.C. § 636(b)(1) ; Fed. R. Civ. P. 72(b)(3). This Court therefore reviews the R & R de novo.
I. INTERPRETATION OF TERM "ANY ANALOGUE" AS USED IN 21 U.S.C. § 841(b)(1)(B)(vi)
21 U.S.C. § 841(b)(1)(B)(vi) provides an enhanced penalty in the case of a violation of § 841(a)"involving ... 10 grams or more of a mixture or substance containing a detectable amount of any analogue of [fentanyl]." The defendant contends that under this statute, butyryl fentanyl is not, and cannot be, "any analogue of [fentanyl]." See id.
To interpret a statute, this Court " ‘necessarily begins with the plain meaning of a law's text and, absent ambiguity, will generally end there.’ " United States v. Maynard , 743 F.3d 374, 381 (2d Cir. 2014) (quoting Dobrova v. Holder , 607 F.3d 297, 301 (2d Cir. 2009) ). "In conducting such an analysis, [the court will] ‘review the statutory text, considering the ordinary or natural meaning of the words chosen by Congress, as well as the placement and purpose of those words in the statutory scheme.’ " Id. (quoting Dobrova , 607 F.3d at 301 ). "[W]hen a statute is ambiguous[,] ... deals with especially complex matters," or otherwise gives a court reason "to corroborate and fortify [its] understanding of the text," the court also will look at relevant legislative history. Dig. Realty Tr., Inc. v. Somers , ––– U.S. ––––, 138 S.Ct. 767, 783, 200 L.Ed.2d 15 (2018) (Sotomayor, J., concurring).
The defendant contends that the Act's explicit definition of "controlled substance analogue," 21 U.S.C. § 802 (32), defines "analogue" as well. As noted above, the Act excludes from the definition of "controlled substance analogue" any "controlled substance." Id. § 802(32)(C)(i). The term "controlled substance" is defined as "a drug or other substance, or immediate precursor" scheduled under the Act. Butyryl fentanyl now has indisputably been scheduled as a controlled substance under the Act. See Schedules of Controlled Substances: Temporary Placement of Butyryl Fentanyl and Beta-Hydroxythiofentanyl Into Schedule I, 81 Fed. Reg. 29492 (May 12, 2016) ; Schedules of Controlled Substances: Placement of Butyryl Fentanyl and U-47700 Into Schedule I, 81 Fed. Reg. 17486 (Apr. 20, 2018) ( 21 C.F.R. § 1308.11 ). Thus, the defendant contends, butyryl fentanyl is not an analogue of fentanyl because it is a scheduled controlled substance, which is excluded from the definition of "controlled substance analogue."
"In general, ‘statutory definitions control the meaning of statutory words.’ " Upstate Citizens for Equality, Inc. v. United States , 841 F.3d 556, 575 (2d Cir. 2016) (quoting Burgess v. United States , 553 U.S. 124, 129, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) ). When a term is not defined in a statute, however, the term is given its ordinary meaning. Encino Motorcars, LLC v. Navarro , ––– U.S. ––––, 138 S.Ct. 1134, 1140, 200 L.Ed.2d 433 (2018). In this instance, the statutory term used in § 841(b)(1)(b)(vi) is "any analogue of [fentanyl]," not "controlled substance analogue." The Act does not define the term "analogue" or "any analogue of fentanyl." See 21 U.S.C. § 802. Therefore, this Court considers the term's plain and ordinary meaning.
The ordinary meaning of the term "analogue" supports the government's reading of the statute. In the chemistry context relevant here, the term analogue means "a chemical compound structurally similar to another but differing often by a single element of the same valence and group of the periodic table as the element it replaces." Analogue , WEBSTER'S NEW COLLEGIATE DICTIONARY (1985). Nothing in the dictionary definition of analogue suggests that butyryl fentanyl cannot be an analogue of fentanyl; in fact, the chemistry of the two substances suggests that it is. Thus, according to the plain and ordinary meaning of the term "analogue," the government may prove that butyryl fentanyl is an analogue of fentanyl.
The defendant's argument to the contrary has some intuitive appeal to it. After all, fentanyl is a controlled substance and so the government's argument leads to the conclusion that an analogue of a controlled substance (that is, fentanyl) is not a "controlled substance analogue." That is a conclusion only a lawyer can love. But this Court is convinced that it is the correct one, based on the science, based on the dictionary definition of analogue, and based on the fact that "controlled substance analogue" is a term of art under the statute. What is more, other canons of construction lead to that same conclusion.
"Statutes should be interpreted to avoid untenable distinctions and unreasonable results whenever possible." American Tobacco Co. v. Patterson , 456 U.S. 63, 71, 102 S.Ct. 1534, 71 L.Ed.2d 748 (1982). An examination of the defendant's interpretation of the statute within the broader context of the Act demonstrates that it would create issues and distinctions in ways that Congress could not have reasonably intended.
The Act "identifies a category of substances substantially similar to those listed on the federal controlled substance schedules, 21 U.S.C. § 802(32)...
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