United States v. McKinnie

• Decision Date: 27 December 2021
• Docket Number: No. 19-4888,19-4888
• Citation: 21 F.4th 283
• Parties: UNITED STATES of America, Plaintiff – Appellee, v. Mikkel MCKINNIE, Defendant - Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

21 F.4th 283

UNITED STATES of America, Plaintiff – Appellee,

v.Mikkel MCKINNIE, Defendant - Appellant.

No. 19-4888

United States Court of Appeals, Fourth Circuit.

Argued: October 29, 2021

Decided: December 27, 2021

ARGUED: Seth Allen Neyhart, Durham, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Robert J. Higdon, Jr., United States Attorney, G. Norman Acker, III, Acting United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Before WILKINSON, AGEE, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion in which Judge Agee and Judge Floyd joined.

WILKINSON, Circuit Judge

On the morning of December 1, 2016, Trevor Nelson died of a drug overdose. Hours before his death, Nelson was sold "China White" fentanyl by appellant Mikkel McKinnie. McKinnie was indicted in the Eastern District of North Carolina and pleaded guilty to distribution of a detectable amount of fentanyl, in violation of 21 U.S.C. § 841(a)(1). The district court imposed a sentence of 120 months, justified both as an upward variance and upward departure from the Guidelines range. Because the district court acted within its discretion, we reject McKinnie's challenge to the procedural and substantive reasonableness of his sentence.

I.

A.

Lauren Duppstadt left her home in Fuquay-Varina, North Carolina, at around 7 a.m. on December 1, 2016. When she returned at 10 a.m., she found her roommate, Trevor Nelson, unconscious on the bathroom floor. Despite attempts by emergency responders to resuscitate him, Nelson was declared dead. Officers collected two used needles and a spoon containing white powder at the scene. Subsequent testing revealed that one of the needles contained heroin, the spoon contained fentanyl, and the other needle contained both heroin and fentanyl. An autopsy determined that Nelson died from "[a]cute intoxication of alprazolam, heroin, and fentanyl." J.A. 74.

Officers secured a search warrant for Nelson's phone, which revealed numerous texts between Nelson and his drug dealer, Mikkel McKinnie. Using surveillance footage, witness interviews, text messages, call logs, and cellphone location data, investigators pieced together the events that led to Nelson's death.

On November 27, 2016, McKinnie texted Nelson, explaining that his supplier was coming down from New Jersey with "China White," a potent narcotic containing fentanyl. The next day, November 28, McKinnie bragged about the drug's strength by claiming it was causing people to overdose. J.A. 214 ("[G]ot it last night but my ppl just call me back told me too b careful cuz ppl going out on that shit."). McKinnie agreed to sell Nelson a gram, and at just after 2 p.m., Nelson and McKinnie arrived at a Sheetz gas station to complete the transaction. After purchasing the China White, Nelson immediately used it in the Sheetz bathroom. Upon exiting, Nelson was so visibly impaired that an employee called 911. Nelson and McKinnie left as police arrived.

Later that evening, McKinnie texted his supplier, praising the drug's effect on Nelson, who "couldn't even walk, talk, think that m.f. was gone bro." J.A. 215. The following day, McKinnie warned another customer about the strength of the drug: "Please b careful its really strong." Id.

On November 30, the day before his death, Nelson texted McKinnie seeking one or two grams to ward off his opioid withdrawal symptoms. Nelson also stated that he would purchase from another dealer in Durham, North Carolina, if McKinnie was unavailable. After a brief call with McKinnie, Nelson texted him, "Aight I catch u another time I got to go." J.A. 216. Location data from Nelson's cellphone demonstrates that he then traveled to and from Durham. As Nelson returned from Durham, McKinnie mocked him for going to another dealer: "Y u go by that bullshit I got u. u know I got that fire." Id.

That evening, Nelson asked how much McKinnie would charge for half a gram of China White and McKinnie encouraged him to purchase a whole gram. Nelson agreed to make a purchase, and cellphone location data confirms that McKinnie made the delivery at Nelson's house.

When Nelson's roommate left for work the following morning, Nelson was alive and well. Three hours later, he was found unconscious on the floor of his bathroom. The afternoon of Nelson's death, McKinnie's supplier texted him, "shit krazy boy," to which McKinnie responded: "My bad bro I got the money tho just sold last lil bit of the shit, took longer than expected." J.A. 217.

B.

McKinnie was arrested and charged with (1) distribution of a detectable amount of fentanyl ; and (2) distribution of a detectable amount of fentanyl resulting in serious bodily injury and death. See 21 U.S.C. § 841(a)(1), (b)(1)(C). In exchange for the dismissal of the second charge, McKinnie pleaded guilty to the first charge. Prior to sentencing, the government submitted a brief arguing for a sentence above the Guidelines range.

At the sentencing hearing, the government presented three witnesses, each of whom the district court found to be credible. Detective Greg Hamilton and retired detective Ryan Blackwell described the investigation leading to McKinnie's arrest and the evidence against him. The government also called Dr. Ruth Ellen Winecker, who spent 19 years as the Chief Toxicologist for the North Carolina Medical Examiner system. Dr. Winecker explained that fentanyl is "a hundred times more potent than morphine," and that if users take their "usual" dose of what they believe to be heroin, then "they're at very high risk of overdosing." J.A. 105–06.

Citing Nelson's toxicology report, Dr. Winecker focused on three drugs found in his system: alprazolam (Xanax ), morphine, and fentanyl. The first drug, Xanax, was found in a concentration of .087 milligrams/liter, which is within the normal therapeutic range. The second drug, morphine, was found at a concentration of .099 milligrams/liter. According to Dr. Winecker, the presence of a chemical known as 6-monoacetylmorphine indicated that this morphine must have come from heroin, which is ultimately broken down by the body into morphine. The .099 milligrams/liter of morphine was "not unusual in any way" for a heroin user and was right around the .10 milligrams/liter medical examiners typically see among such individuals. J.A. 110.

Dr. Winecker drew particular attention to the 100 nanograms per milliliter concentration of fentanyl, which was "notable for how elevated it is." J.A. 111. Over the five years preceding June 2018, the median concentration in deceased individuals where fentanyl was detected was 11 nanograms per milliliter, meaning the concentration in Nelson's blood was nearly 10 times higher. Moreover, of the 2,142 such cases, only nine (0.4%) involved concentrations higher than 95 nanograms per milliliter.

After the testimony of the three witnesses, a statement from Lynn Nelson, Trevor Nelson's mother, was read. She described her loss "so deep, so permanent and so heartbreaking, words are simply not enough," and shared her horror that McKinnie would trade "a few dollars in exchange for human life." J.A. 130–34.

McKinnie declined to make a statement and conceded that he had no objections to the presentence report (PSR) that would affect the calculation of the Sentencing Guidelines range. The court adopted the uncontested portions of the PSR, which recommended an offense level of 12—based on the quantity of drugs distributed by McKinnie—and a criminal history category of IV, leading to an advisory Guidelines range of 21 to 27 months. The calculation was based solely on the drug quantity attributed to McKinnie and did not take into account Nelson's death.

After a lengthy discussion of the 18 U.S.C. § 3553(a) factors and McKinnie's conduct, the district court imposed a sentence of 120 months. This sentence was justified on three grounds: (1) an upward variance under the § 3553(a) factors, (2) an upward departure under U.S.S.G. § 5K2.1 (Death), or (3) an upward departure under U.S.S.G. § 5K2.21 (Dismissed and Uncharged Conduct). The court initially focused on the seriousness of McKinnie's conduct which "absolutely manifested a complete disregard of human life." J.A. 135. The court addressed McKinnie's arguments and rejected his claim that the evidence was insufficient to show that he sold Nelson fentanyl the night before his death. On the basis of the "shocking" testimony about the level of fentanyl in Nelson's body and the court's finding that McKinnie "sold this fentanyl to the decedent," the court found that the upward departures for Death, U.S.S.G. § 5K2.1, and Dismissed Conduct, U.S.S.G. § 5K2.21, were appropriate. J.A. 138–41. The court also justified the 120-month sentence as a variance under the § 3553(a) factors, focusing on McKinnie's role in Nelson's death, his "callous" disregard of the risk involved with distribution of fentanyl, his extensive criminal history along with his failure to respond to leniency shown for previous convictions, and the "dire need" for general deterrence. J.A. 135–44.

McKinnie now appeals his sentence, arguing it was procedurally and substantively unreasonable.

II.

The primacy of the district court's role in sentencing is well-settled. We review sentences, including those outside the Guidelines range, for abuse of discretion. Gall v. United States , 552 U.S. 38, 41, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). Under this standard, the district court's factual findings are reviewed for clear error, while legal conclusions are reviewed de novo. United States v. Provance , 944 F.3d 213, 217 (4th Cir. 2019). This deference is justified by the Supreme Court's consistent recognition that the "sentencing judge is in a superior position to find facts and judge their import under § 3553(a) in the...