Intrinsic Overdose Evidence, Overdose Causation, and Within-Guidelines Sentencing in Opioid Cases: Commentary on United States v. Wyche (2d Cir. 2025)

Intrinsic Overdose Evidence, Overdose Causation, and Within-Guidelines Sentencing in Opioid Cases: Commentary on United States v. Wyche (2d Cir. 2025)

I. Introduction

This commentary examines the Second Circuit’s summary order in United States v. Wyche, Nos. 24-2579, 24-2581 (2d Cir. Nov. 20, 2025), affirming the convictions and sentences of Keith Wyche and Oneil Allen arising out of a heroin and fentanyl distribution conspiracy centered in the Eastern District of New York.

Wyche and Allen were jointly tried and convicted of:

  • Count One: Conspiracy to distribute and possess with intent to distribute heroin and fentanyl (21 U.S.C. §§ 841(b)(1)(C), 846);
  • Count Two: Distribution and possession with intent to distribute heroin and fentanyl (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C));
  • Count Four: Distribution of heroin resulting in the non-fatal overdose and serious bodily injury of user Sarah Wieboldt (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)).

Wyche alone was further convicted of:

  • Count Three: Distributing fentanyl resulting in the fatal overdose of Vincent Price (21 U.S.C. §§ 841(a)(1), 841(b)(1)(C)).

The district court (Irizarry, J.) sentenced Wyche to 480 months (40 years) and Allen to 360 months (30 years) imprisonment. On appeal, the defendants jointly (by agreement under Fed. R. App. P. 28(i)) raised four principal challenges:

  1. Evidentiary: Whether admitting evidence of two uncharged non-fatal overdoses (Militello and Maher) was error under Federal Rules of Evidence 404(b) and 403.
  2. Trial management / confrontation: Whether the district court improperly curtailed cross-examination by sua sponte correcting the form of questions and admonishing defense counsel in front of the jury.
  3. Sufficiency of the evidence: Whether the trial record adequately supported:
    • the conspiracy and distribution convictions;
    • the “serious bodily injury resulting” enhancement as to the Wieboldt overdose;
    • Allen’s liability for that overdose on an aiding-and-abetting theory; and
    • Wyche’s responsibility for the Price death (linking him to the “Marco 5” phone and proving but-for causation).
  4. Sentencing: Whether Wyche’s 480-month sentence was procedurally and substantively unreasonable, including an argument that the district court effected an upward “de facto departure” requiring notice under Rule 32(h) and that the disparity with Allen’s 360-month sentence was unwarranted.

The Second Circuit (Chin, Sullivan, Robinson, JJ.) affirmed in all respects. Although the court issued a summary order (expressly non-precedential under Local Rule 32.1.1), it may still be cited under Fed. R. App. P. 32.1 and functions as persuasive authority. The order is instructive on several recurring issues in federal opioid prosecutions:

  • The line between intrinsic conspiracy evidence and “other acts” evidence under Rule 404(b), particularly regarding uncharged overdoses;
  • How appellate courts apply harmless error review to limits on cross-examination;
  • The evidentiary showing needed to prove:
    • drug identity without forensic testing,
    • “serious bodily injury” and “death resulting” enhancements under § 841(b)(1)(C), and
    • aiding-and-abetting liability in overdose counts;
  • Deference to within-Guidelines sentences and the inapplicability of Rule 32(h) notice where the court does not sentence above the advisory range.

II. Summary of the Opinion

The Second Circuit’s key holdings can be summarized as follows:

  1. Uncharged overdoses as intrinsic evidence: Evidence of non-fatal overdoses of two individuals (Militello and Maher) was properly admitted because it was intrinsic to the charged conspiracy and not “other crimes” evidence within Rule 404(b). The overdoses were part of the same conspiracy period, showed ongoing drug dealing by Wyche using the same phone, and explained how the investigation unfolded. The court also held that any prejudicial effect was not “substantially outweighed” by the probative value under Rule 403.
  2. Cross-examination limits were harmless: Even assuming some trial court interventions improperly curtailed cross-examination, any error was harmless beyond a reasonable doubt. The defense was in fact able to rephrase questions, fully cross-examine, and the government’s evidence was otherwise strong.
  3. Sufficiency of the evidence:
    • Conspiracy: There was ample evidence of a heroin/fentanyl distribution conspiracy: shared phone and vehicles, Wieboldt’s testimony about being serviced by both men via the same number, and evidence from the Somerset, New Jersey residence (cash, drug paraphernalia, customer list, incriminating texts).
    • Wieboldt overdose: Lay testimony and circumstantial evidence were sufficient to prove the substance Wyche sold was heroin and that her overdose constituted “serious bodily injury” (substantial risk of death). Her rapid respiratory failure, Narcan revival, and hospitalization supported this finding.
    • Allen’s aiding and abetting: Allen’s ongoing role in cultivating and servicing Wieboldt as a customer, using a shared number and engaging in joint dealing, constituted sufficient affirmative assistance and intent to support aiding-and-abetting liability for the overdose sale.
    • Price overdose (Wyche): The government sufficiently linked Wyche to the “Marco 5” phone and the fatal sale to Price through nickname usage, common customers, communication patterns, surveillance of a buyer meeting someone in Wyche’s Jeep, and cell-tower data. Expert and forensic testimony established that fentanyl was the but-for cause of Price’s death, consistent with Burrage v. United States.
  4. Wyche’s sentence was reasonable:
    • Procedural: The Guidelines range was 360 months to life. A 480-month sentence was within that range and therefore did not constitute a departure requiring Rule 32(h) notice, nor did it trigger the need to invoke U.S.S.G. § 5K2.1’s departure criteria.
    • Substantive: Given the scale and duration of the conspiracy, multiple overdoses including Price’s death, Wyche’s continued dealing despite knowing of overdoses, and his criminal history (including prior drug and firearm convictions), the 40-year term fell within the “range of permissible decisions.” The court also rejected his co-defendant disparity argument, reaffirming that § 3553(a)(6) concerns nationwide, not intra-case, disparities.

III. Detailed Analysis

A. Evidentiary Rulings: Uncharged Overdoses as Intrinsic Conspiracy Evidence

1. The court’s framework: Intrinsic vs. Rule 404(b) evidence

Allen challenged the admission of evidence concerning two non-fatal overdoses (Militello and Maher), not charged as separate counts, arguing they were impermissible “other acts” under Rule 404(b). The Second Circuit instead categorized this proof as intrinsic to the charged conspiracy.

The court grounded its approach in United States v. Carboni, 204 F.3d 39 (2d Cir. 2000), which holds that evidence of uncharged acts is not “other crimes” evidence within Rule 404(b) if it:

  • arose out of the same transaction or series of transactions as the charged offense;
  • is inextricably intertwined with evidence of the charged offense; or
  • is necessary to complete the story of the crime on trial.

Relying also on United States v. Inserra, 34 F.3d 83 (2d Cir. 1994), the court reiterated that intrinsic evidence is admissible if relevant and passing Rule 403’s probative/prejudicial balancing.

The panel then applied United States v. Lyle, 919 F.3d 716 (2d Cir. 2019), which emphasized that conduct may constitute “evidence of the very crime charged” where it occurs within and forms part of the charged scheme.

2. Application to the uncharged overdoses

The conspiracy count alleged a heroin/fentanyl distribution conspiracy between February 2017 and September 2018. The uncharged overdoses:

  • occurred during the conspiracy period (e.g., July 2017),
  • showed Wyche dealing at that time,
  • linked the same phone number used throughout the conspiracy to drug dealing, and
  • helped explain the law enforcement investigative steps that led to identifying Wyche and Allen as drug traffickers.

Thus, the Second Circuit accepted the district court’s conclusion that this was not 404(b) “other crimes” evidence, but part of the underlying conspiracy narrative and “the very crime charged.”

The court cited United States v. Towne, 870 F.2d 880 (2d Cir. 1989), where evidence connecting a particular phone number or communication pattern to a defendant’s ongoing criminal scheme is considered directly probative of the charged conduct, not extrinsic character evidence.

3. Rule 403 balancing and overdose evidence

Even intrinsic evidence must survive Rule 403, which excludes relevant evidence if its probative value is substantially outweighed by unfair prejudice. The key concern was whether evidence of additional overdoses (beyond the charged ones involving Wieboldt and Price) risked inflaming the jury.

The Second Circuit drew on:

  • United States v. Roldan-Zapata, 916 F.2d 795, 804 (2d Cir. 1990); and
  • United States v. Williams, 205 F.3d 23, 34 (2d Cir. 2000),

for the proposition that there is normally no undue prejudice under Rule 403 when the uncharged acts are no more serious than the charged crimes. Here:

  • The jury already had to consider the non-fatal Wieboldt overdose and Price’s fatal fentanyl overdose, both charged;
  • The uncharged events (two additional non-fatal overdoses) were not more inflammatory than the charged fatal overdose; and
  • Any risk of prejudice to Allen in particular was mitigated by a stipulation that Allen was not involved in Maher’s overdose.

Given this context, the court held that Rule 403 did not bar the evidence. This reflects a practical approach in overdose prosecutions: once the jury is already confronting a fatal overdose charged as “death resulting,” additional, similar non-fatal overdoses—where properly tied to the conspiracy—are less likely to be considered unfairly prejudicial.

4. Implications

While not precedential, the order underscores that, in drug conspiracy and overdose cases:

  • Overdoses occurring within the time frame and scope of the charged conspiracy and linked to the same distribution apparatus (same dealer, phone, vehicles, distribution hub) will typically be treated as intrinsic, not 404(b) “other acts.”
  • The government can rely on uncharged overdoses to:
    • establish the existence, duration, and scope of a conspiracy,
    • connect phones and communication patterns to defendants, and
    • explain how the investigation unfolded.
  • Rule 403 challenges will be difficult when the uncharged conduct is comparable in seriousness to, or less serious than, charged overdoses already before the jury, especially where limiting stipulations are in place.

B. Cross-Examination, Judicial Intervention, and Harmless Error

1. Legal standard

The defendants argued the district court impaired their right to confront government witnesses by:

  • repeatedly correcting the form of defense questions, and
  • admonishing counsel in the jury’s presence.

The Second Circuit invoked:

  • United States v. Sampson, 898 F.3d 287, 308 (2d Cir. 2018): trial courts have broad discretion over the “scope and extent of cross-examination.”
  • United States v. Rosa, 11 F.3d 315, 336 (2d Cir. 1993), applying Delaware v. Van Arsdall, 475 U.S. 673 (1986): even where cross-examination is improperly curtailed, the error is subject to harmless error review. The question becomes whether, assuming the cross-examination had achieved its full potential, the error was harmless beyond a reasonable doubt.

2. Application to the record

The panel acknowledged that some sua sponte interventions by the trial judge might be characterized as erroneous. However, it concluded that:

  • Defense counsel were generally allowed to rephrase questions and obtain the testimony they sought, as evidenced in the appellate record (e.g., Gov’t App’x 110–11, 124).
  • The defendants were ultimately able to fully cross-examine government witnesses; there was no showing that any particular line of impeachment was foreclosed.
  • Independent of any limitation on cross-examination, the government’s case was strong, with multiple sources of corroborating evidence.

Thus, any error was deemed harmless beyond a reasonable doubt under the Van Arsdall framework.

3. Takeaways

For trial practice, the order reinforces:

  • Appellate courts will tolerate active judicial management of questioning, even if at times heavy-handed, provided the essential substance of cross-examination is not foreclosed.
  • To secure reversal, a defendant must show not merely that the judge occasionally interrupted or criticized counsel, but that material areas of cross-examination were meaningfully truncated in a way that could have altered the verdict.
  • In cases with voluminous and corroborated evidence, harmless-error analysis will usually favor affirmance.

C. Sufficiency of the Evidence

1. General sufficiency standards

The court restated the familiar standards:

  • Sufficiency challenges are reviewed de novo, but with “heavy” deference to the jury’s findings: United States v. Dupree, 870 F.3d 62, 78 (2d Cir. 2017); United States v. Vasquez, 267 F.3d 79, 90 (2d Cir. 2001).
  • The evidence is viewed in the light most favorable to the government; all inferences supporting the verdict are credited; and the appellate court defers to the jury on credibility and weight: United States v. Rosemond, 841 F.3d 95, 113 (2d Cir. 2016).
  • Under Jackson v. Virginia, 443 U.S. 307, 319 (1979), the question is whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, a standard emphasized again in United States v. Atilla, 966 F.3d 118, 128 (2d Cir. 2020).

2. Conspiracy: shared phone, shared vehicles, and the Somerset residence

Conspiracy sufficiency receives particular deference, given its inherently secretive nature: see United States v. Santos, 541 F.3d 63, 70 (2d Cir. 2008). The government had to prove:

  • the existence of an agreement to distribute controlled substances,
  • the defendants knowingly and intentionally joined that agreement with specific intent to commit its object, and
  • the type of drugs involved (here, heroin and fentanyl): Dupree, 870 F.3d at 78.

The evidence, as summarized by the Second Circuit, was substantial:

  • Customer testimony: Wieboldt testified that in summer 2017, her “two main dealers” were Allen and Wyche; she contacted them through a shared phone number; and, at her first transaction with Allen, he trusted her because Wyche had already “vouched” for her. This indicated coordinated dealing and a shared customer base.
  • Joint use of vehicles and location: NYPD Detective Phillip Vaccarino testified that Wyche and Allen shared vehicles to further the conspiracy and were observed together outside a residence in Somerset, New Jersey, later raided as a stash house.
  • Somerset residence evidence: The search recovered thousands of dollars in cash, sifters, grinders, scales, glassine envelopes, and a customer list—classic tools of heroin/fentanyl distribution. Phones seized there contained incriminating texts from both defendants discussing drug sales.

Given this record, the court concluded that a rational jury could find each defendant knowingly and intentionally participated in a heroin/fentanyl distribution conspiracy, comfortably satisfying the high bar for a sufficiency challenge.

3. The Wieboldt overdose: drug identity, causation, and serious bodily injury

a. Proving heroin without chemical analysis

Wyche argued (for the first time on appeal) that the government failed to prove that the substance he sold to Wieboldt was, in fact, heroin. The Second Circuit pointed to longstanding precedent that chemical testing is not strictly necessary.

In United States v. Flores, 945 F.3d 687, 707 (2d Cir. 2019), and earlier in United States v. Bryce, 208 F.3d 346, 353–54 (2d Cir. 1999), the court held that lay testimony and circumstantial evidence may suffice to establish drug identity. Relevant types of proof include:

  • the substance’s appearance;
  • the effects it produces on users;
  • the manner in which it is used (e.g., sniffed, injected, smoked) consistent with street practices for that drug; and
  • the terminology employed by participants (e.g., “bundle”).

Here, the evidence included:

  • Wieboldt’s testimony that the substance “looked like a typical bag of heroin”; she sniffed it and felt “very high,” then overdosed after attempting a second bag.
  • Phone records showing she texted Allen asking for “one bundle,” a term used to mean 10 bags of heroin.
  • Expert testimony that heroin is typically “tannish” in color and is commonly consumed by sniffing.

Taken together, this allowed a rational jury to conclude beyond a reasonable doubt that the substance was heroin, even absent laboratory testing of the actual bag.

b. Causation and “serious bodily injury”

For the “serious bodily injury resulting” enhancement under § 841(b)(1)(C), the government had to prove:

  1. knowing or intentional distribution of a substance containing heroin; and
  2. that use of that substance resulted in “serious bodily injury.”

“Serious bodily injury” is defined in 21 U.S.C. § 802(25) to include any bodily injury involving a substantial risk of death.

The causation showing was straightforward. According to the Second Circuit’s summary:

  • Wieboldt purchased heroin from Wyche on October 27, 2017, sniffed it, “very quickly stopped breathing,” and overdosed almost immediately.
  • She testified she had not used any other substances that day.
  • She required Narcan to be revived and was hospitalized to monitor her ability to breathe on her own.

This chronology justified a finding that:

  • the overdose was caused by the heroin she obtained from Wyche (a straightforward but-for causal link), and
  • her condition—cessation of breathing, Narcan revival, hospitalization—placed her at a “substantial risk of death,” satisfying the serious bodily injury element.

4. Allen’s aiding-and-abetting liability for the Wieboldt overdose

Allen argued that he did not personally conduct the fatal sale that led to the October 27 overdose and thus could not be held liable. The government relied on an aiding-and-abetting theory.

The Second Circuit invoked Rosemond v. United States, 572 U.S. 65, 68 (2014), which requires that an aider and abettor:

  • Perform an affirmative act in furtherance of the offense; and
  • Act with intent to facilitate the offense’s commission.

The court also cited United States v. Delgado, 972 F.3d 63, 74 (2d Cir. 2020), which emphasizes that the “affirmative act” threshold is low: the defendant must merely facilitate one component of the offense and provide more than minimal assistance.

Applying those standards, the panel pointed to:

  • Allen’s regular sales of heroin to Wieboldt using the shared phone number with Wyche.
  • Evidence that both defendants cultivated and serviced her as a frequent customer: they were “around almost daily,” were more “professional” than her other dealers, and coordinated access through one joint contact number.

From this, a rational juror could conclude that:

  • Allen helped create and maintain the commercial relationship through which the overdose-inducing sale was made; and therefore
  • his actions facilitated the October 27 transaction, even if Wyche physically handed over the heroin that day.

This is a broad but consistent application of aiding-and-abetting principles to drug networks: where co-dealers jointly maintain a customer’s drug supply and operate through shared infrastructure, each may be liable for overdose events caused by transactions carried out by the other, so long as they intentionally contribute to the overall ongoing supply.

5. The Price overdose: linking Wyche to the “Marco 5” phone and proving but-for causation

a. Identity of the dealer: circumstantial linking of phones and nicknames

Wyche argued that the government failed to prove that the “Marco 5” phone, used to arrange Price’s fatal purchase on April 18, 2017, actually belonged to him.

The Second Circuit, invoking the Jackson / Atilla sufficiency framework, detailed multiple strands of circumstantial evidence:

  • Price saved the “Marco 5” number under the name “Marco,” which was Wyche’s known nickname within the conspiracy.
  • Messages from “Marco 5” to Price matched the content and pattern of messages from a phone seized from Wyche’s residence used in the conspiracy.
  • The “Marco 5” phone shared customers with another phone seized from Wyche’s residence; overlapping customer lists are potent corroboration in drug cases.
  • Phone records for “Marco 5” led investigators to surveil a buyer (John Kane) who was subsequently observed purchasing heroin and fentanyl from a driver in Wyche’s white Jeep.
  • Cell-tower data placed the “Marco 5” phone moving from the vicinity of Wyche’s home to Price’s residence at the time of the fatal sale.

Viewed holistically, this evidence permitted the jury to infer beyond a reasonable doubt that Wyche was the user of the “Marco 5” phone and was the dealer who sold the fentanyl that killed Price.

b. But-for causation under Burrage

Wyche also challenged the sufficiency of the causation proof, arguing that other substances in Price’s system (cocaine and alcohol) undermined any “but-for” finding.

In Burrage v. United States, 571 U.S. 204, 211 (2014), the Supreme Court held that “death resulting” under § 841(b)(1)(C) requires but-for causation: the drug use must be a but-for cause of death, not merely one of several contributing factors, unless it is an independently sufficient cause.

The Second Circuit found ample evidence that fentanyl was the but-for cause:

  • Price was discovered with a belt around his arm and a hypodermic needle containing a fentanyl-laced liquid beside him.
  • Expert testimony established that fentanyl is approximately 50 times more potent than heroin, and intravenous injection produces an almost immediate effect.
  • Deputy Chief Medical Examiner Melissa Pasqual-Styles testified that:
    • Price “was alive for a period of time with cocaine and alcohol” in his system; and
    • He then took a “terminal shot of fentanyl” that “put him over the edge and caused his death.”
    • The fentanyl concentration (24 ng/mL) was sufficient to seize his diaphragm and be lethal.

This testimony fully satisfied Burrage: even though Price had other substances in his system, the final fentanyl injection was the straw that broke the camel’s back—without it, he would not have died when he did. That is classic but-for causation.

D. Sentencing: Within-Guidelines Term, Rule 32(h), and Co-Defendant Disparities

1. Procedural reasonableness: Guidelines, notice, and departures

Under United States v. Robinson, 702 F.3d 22, 38 (2d Cir. 2012) (citing Gall v. United States, 552 U.S. 38 (2007)), a sentence is procedurally unreasonable if the court:

  • fails to calculate or miscalculates the Guidelines range,
  • treats the Guidelines as mandatory,
  • fails to consider the 18 U.S.C. § 3553(a) factors,
  • selects a sentence based on clearly erroneous facts, or
  • fails adequately to explain the sentence.

Wyche’s main procedural argument was that his 480-month sentence was a “de facto departure” above the Guidelines that required advance notice under Federal Rule of Criminal Procedure 32(h) and explicit consideration of U.S.S.G. § 5K2.1 (allowing an upward departure when death results).

The Second Circuit rejected this argument on a straightforward basis:

  • The calculated Guidelines range was 360 months to life.
  • Wyche’s 480-month sentence was squarely within that range.
  • Rule 32(h) applies only to departures—that is, sentencing above (or below) the advisory Guidelines range, not simply choosing a higher point within the range.
  • Because no departure occurred, the district court had no obligation to provide Rule 32(h) notice or to apply § 5K2.1’s departure analysis.

Accordingly, there was no procedural error.

2. Substantive reasonableness: the Cavera framework

A sentence is substantively unreasonable only if it “cannot be located within the range of permissible decisions,” United States v. Cavera, 550 F.3d 180, 189 (2d Cir. 2008) (en banc). That standard is highly deferential, especially for a sentence within the applicable Guidelines range.

The Second Circuit recounted that the district court:

  • Explicitly considered the “nature and circumstances of the offense”:
    • Describing fentanyl as a “real scourge” and the offense as among the most serious the court sees;
    • Emphasizing the large number of customers and the persistent targeting of users to buy drugs;
    • Noting multiple overdose events, including a fatality, caused by the conspiracy’s product; and
    • Highlighting that Wyche continued dealing despite knowing overdoses were occurring from the drugs he sold.
  • Considered “the history and characteristics of the defendant,” including Wyche’s prior drug trafficking and firearm convictions.

Against that background, a 40-year sentence—within a 30-years-to-life range—was readily within the “range of permissible decisions.” The panel thus rejected Wyche’s substantive challenge.

3. Co-defendant sentencing disparity and § 3553(a)(6)

Wyche argued that his 480-month sentence created an unwarranted disparity relative to Allen’s 360-month term. The Second Circuit answered in two layers:

  1. Scope of § 3553(a)(6): As explained in United States v. Frias, 521 F.3d 229, 236 (2d Cir. 2008), § 3553(a)(6) directs courts to consider nationwide sentence disparities among similarly situated defendants, not disparities among co-defendants within the same case.
  2. Even intra-case, the disparity was justified:
    • Wyche, unlike Allen, was convicted of distributing the fentanyl dose that caused Price’s death; and
    • He had a more serious criminal history, including prior felony drug trafficking and firearm convictions.

The panel concluded that even if intra-case disparity were relevant, the additional 10 years for Wyche was rational and not an abuse of discretion.

IV. Complex Concepts Simplified

This section distills some of the more technical doctrines applied in Wyche.

1. Intrinsic evidence vs. Rule 404(b) “other acts”

  • Intrinsic evidence is part of the charged crime itself (same scheme, time frame, players). It may:
    • directly prove the crime,
    • explain how the crime unfolded, or
    • complete the story for the jury (e.g., how the police identified the defendant).
    • Rule 404(b) “other acts” evidence involves separate crimes or bad acts used to show motive, intent, knowledge, etc., but not character. It triggers specific notice and limitation requirements.
    • In Wyche, the uncharged overdoses were treated as intrinsic to the conspiracy, not 404(b) “other acts.”

    2. Rule 403: probative value vs. unfair prejudice

    • Even relevant evidence can be excluded if its unfair prejudice substantially outweighs its value (for example, if it would inflame the jury or cause a decision based on emotion rather than fact).
    • Where the uncharged conduct is similar in seriousness to the charged conduct, it is harder to argue that it is unduly prejudicial.

    3. Conspiracy

    • A conspiracy is an agreement between two or more people to commit a crime.
    • The government must show that:
      • A conspiracy existed,
      • The defendant knew about it, and
      • The defendant intentionally joined it.
    • In drug cases, evidence of shared phones, shared stash houses, and overlapping customers strongly supports an inference of a conspiracy.

    4. Aiding and abetting

    • A person is guilty as an aider and abettor if they:
      • Take some affirmative action that helps the crime occur, and
      • Do so with the intent to help the crime succeed.
    • The action can be modest—a low “hurdle”—such as facilitating communications, sharing vehicles, or maintaining customer relationships, as long as it is more than trivial.

    5. “Serious bodily injury” and “death resulting” under § 841(b)(1)(C)

    • Serious bodily injury includes any injury involving a “substantial risk of death.” Temporary but life-threatening overdoses, especially those requiring Narcan and hospitalization, normally qualify.
    • Death resulting requires that use of the drug distributed by the defendant be a but-for cause of death, per Burrage. If the victim would not have died when they did without that drug, the requirement is satisfied, even if other drugs were present.

    6. Proving drug identity without lab tests

    • Courts allow identity of drugs (e.g., heroin) to be proved through:
      • appearance,
      • how it is used (snorted, injected, etc.),
      • effects on users (typical “high”), and
      • slang and terminology used by dealers and buyers (“bundle,” “bag,” etc.).

    7. Procedural vs. substantive reasonableness of sentences

    • Procedural reasonableness focuses on how the sentence was imposed:
      • Were the Guidelines correctly calculated?
      • Did the judge consider the § 3553(a) factors?
      • Was the sentence based on accurate facts?
      • Was an adequate explanation given?
    • Substantive reasonableness addresses what sentence was imposed:
      • Is the length of the sentence within the broad band of reasonable outcomes, given the facts and purposes of sentencing?

    8. Rule 32(h) and departures

    • Rule 32(h) requires notice if the judge plans to impose a sentence above the Guidelines range (an upward departure) based on a ground not previously identified.
    • It does not apply when the sentence falls within the calculated Guidelines range, even if the court selects a higher point within that range.

    9. Co-defendant disparities vs. nationwide disparities

    • Section 3553(a)(6) focuses on nationwide disparities between similarly situated offenders, not necessarily differences among co-defendants in the same case.
    • Courts may still consider intra-case fairness, but they are not required to equalize sentences among co-defendants, especially where criminal history or counts of conviction differ.

    V. Impact and Significance

    Although United States v. Wyche is a non-precedential summary order, it is likely to exert practical influence in the Second Circuit—especially in overdose-driven opioid prosecutions—because it:

    • Reinforces that uncharged overdoses during the life of a conspiracy can be treated as intrinsic evidence, not 404(b) other acts, where they illuminate the same scheme, the same phone, and the same customers.
    • Confirms that lay testimony and circumstantial evidence remain sufficient to establish drug identity (heroin) and causation in overdose cases, consistent with Flores and Bryce.
    • Applies Burrage’s but-for causation requirement in a realistic manner, allowing medical experts to frame a final fatal dose as the decisive cause even amidst poly-substance use.
    • Endorses a flexible application of aiding-and-abetting liability where co-dealers share a phone line and jointly cultivate customers, exposing them to liability for overdose events even when one partner makes the specific sale.
    • Underscores the breadth of trial court discretion in managing cross-examination and the difficulty of obtaining reversal without a clear showing that vital impeachment was blocked and prejudiced the verdict.
    • Reaffirms that:
      • within-Guidelines sentences are rarely overturned as substantively unreasonable; and
      • Rule 32(h) notice is not required absent genuine departures outside the Guidelines range.

      For defense counsel, the order highlights the importance of:

      • Challenging the scope of the conspiracy allegation where possible, as a broad conspiracy time frame allows the government to characterize many uncharged overdoses as intrinsic;
      • Developing expert testimony to contest but-for causation in overdose cases, particularly when multiple substances are involved; and
      • Building a record at sentencing that differentiates a client from co-defendants on individualized § 3553(a) factors, rather than relying primarily on disparity arguments under § 3553(a)(6).

      VI. Conclusion

      United States v. Wyche presents a compact but meaningful application of established doctrines in the context of modern opioid prosecutions. The Second Circuit affirms:

      • The permissibility of using uncharged overdose evidence as intrinsic proof of a drug conspiracy;
      • The breadth of harmless-error review for trial management decisions affecting cross-examination;
      • The sufficiency of circumstantial proof to establish drug identity, overdose causation, and aiding-and-abetting liability; and
      • The deference owed to district courts in imposing within-Guidelines sentences, even in the face of co-defendant disparity claims.

      While not binding precedent, the order is a clear signal of how the Second Circuit is likely to evaluate similar evidentiary, causation, and sentencing questions in future fentanyl and heroin overdose prosecutions. It underscores the judiciary’s willingness to uphold substantial sentences where defendants persist in trafficking highly lethal substances despite clear evidence of overdose risks to their customers.

Case Details

Year: 2025
Court: Court of Appeals for the Second Circuit

Comments