Within-Guidelines Sentences and § 3553(a)(6): Statistical “Powder Cocaine” Comparators and Co-Defendant Comparisons Do Not Show Substantive Unreasonableness When Additional Fentanyl Risk Is Present (United States v. Fausel)

Precedents Cited

1) The substantive-reasonableness standard: deference and the “shockingly high/low” threshold

• United States v. Cavera, 550 F.3d 180 (2d Cir. 2008) (en banc):

  Cavera supplies the baseline framework: substantive reasonableness is reviewed under a “deferential abuse-of-discretion standard,” and appellate courts do not reweigh sentencing factors as if sentencing in the first instance. The key inquiry is whether the district court’s stated factors can “bear the weight assigned” under the “totality of circumstances.”

  In Fausel, this principle did most of the work: because the district judge tied the sentence to concrete facts (drug quantities, fentanyl risk, role in conspiracy) and to the § 3553(a) purposes, the panel treated Fausel’s arguments largely as requests to re-balance those considerations—precisely what Cavera counsels against.

• United States v. Muzio, 966 F.3d 61 (2d Cir. 2020):

  Muzio articulates the Circuit’s oft-quoted guardrail: sentences are set aside only if “shockingly high, shockingly low, or otherwise unsupportable as a matter of law” such that they would “damage the administration of justice.”

  The panel used this formulation to emphasize that a mid-range Guidelines sentence (42 months within 37–46) anchored to significant drug quantities and fentanyl-related danger does not approach that extreme threshold.

2) Guidelines sentences as typically reasonable, without a formal presumption

• United States v.  Fernandez, 443 F.3d 19 (2d Cir. 2006), abrogated on other grounds by, Rita v. United States, 551 U.S. 338 (2007):

  Fernandez is cited for the proposition that while the Second Circuit does not apply a presumption of reasonableness to a within-Guidelines sentence, “in the overwhelming majority of cases” such a sentence will fall within the broad range of reasonableness.

  Fausel uses this point to situate the 42-month sentence: it is not automatically reasonable, but it starts from a strong position given its within-range placement and the district court’s articulated reasoning.

  The reference to Rita v. United States, serves as a reminder that some aspects of earlier Guidelines-era reasoning have been refined post-Booker; nonetheless, Fernandez remains relevant for the practical appellate posture toward within-Guidelines sentences in the Second Circuit.

3) Sentencing disparity under § 3553(a)(6): nationwide focus; co-defendant comparisons not required

• United States v. Bryant, 976 F.3d 165 (2d Cir. 2020):

  Bryant supplies the threshold doctrinal response to co-defendant arguments: § 3553(a)(6) requires consideration of nationwide disparities among similarly situated defendants, but “does not require” a district court to consider disparities between co-defendants.

  The panel invoked Bryant to undercut Fausel’s premise that lower co-defendant sentences, by themselves, establish unwarranted disparity.

• United States v. Frias, 521 F.3d 229 (2d Cir. 2008):

  Frias provides an important nuance: while co-defendant comparisons are not required, a sentencing judge may consider similarities and differences among co-defendants.

  In Fausel, this mattered because the district court did consider co-defendant sentences and explained why those with lower sentences were not similarly situated (smaller quantities, no fentanyl). That record further insulated the sentence from substantive-reasonableness attack.

4) Weight given to mitigating factors: primarily for the sentencing judge

• United States v. Verkhoglyad, 516 F.3d 122 (2d Cir. 2008):

  Verkhoglyad underscores that no particular § 3553(a) factor must be given dispositive weight; how much weight to give each factor is “firmly committed to the discretion of the sentencing judge.”

  The panel relied on this principle to reject Fausel’s contention that her age, medical condition, and first-offender/non-violent status should have driven a lower sentence.

• United  States v. Pollok, 139 F.4th 126 (2d Cir. 2025):

  Pollok supplies the final rejoinder: a defendant’s “mere disagreement” with how the district court weighed § 3553(a) factors is not an abuse of discretion when the overall sentence is reasonable.

  Fausel uses Pollok to frame the appeal as an impermissible request for the panel to substitute its own balancing for the district court’s.

Legal Reasoning

The court’s reasoning follows a familiar Second Circuit structure:

1. Identify the standard of review (abuse of discretion; “shockingly high/low” threshold) drawn from United States v. Cavera and United States v. Muzio.
2. Anchor the sentence in the Guidelines and the record:
   • The sentence was within the advisory range (37–46 months), which—under United States v.  Fernandez—typically indicates the sentence lies comfortably within the range of reasonableness (without creating a formal presumption).
   • The district court expressly addressed multiple § 3553(a) factors and connected them to concrete facts (large quantities; cash; fentanyl pressed to look like oxycodone; variability increasing overdose risk; role/trust within the organization; deterrence and respect for law).
3. Reject the disparity arguments as mismatched comparators:
   • The “powder cocaine” sentencing-statistics argument failed because Fausel’s conduct materially differed: it included a substantial quantity of pressed fentanyl—a fact the district court reasonably treated as aggravating and as increasing public danger.
   • Co-defendant comparisons were doctrinally non-compulsory under United States v. Bryant, and in any event were factually addressed under the permissive approach in United States v. Frias.
4. Decline to reweigh mitigation: Under United States v. Verkhoglyad, and United  States v. Pollok, the panel treated the mitigation complaint as a disagreement with weighing, not a showing of legal unreasonableness.

A notable feature is the court’s emphasis on risk characteristics of the fentanyl evidence—pressed pills mimicking oxycodone and producing inconsistent fentanyl amounts. Even without announcing a new rule, the opinion illustrates how qualitative danger (counterfeit appearance and potency variability) can legitimately influence the § 3553(a) analysis, including the need for deterrence and protection of the public.

Impact

Because this is a summary order, it does not create binding precedent. Still, its reasoning is likely to be influential in three recurring sentencing contexts in the Second Circuit:

• Use of national sentencing statistics: The decision signals skepticism toward statistics-driven disparity claims when the dataset’s category (here, “powder cocaine”) fails to account for aggravating conduct actually present (here, pressed fentanyl). Future defendants relying on Sentencing Commission database summaries should expect courts to scrutinize whether the “comparison class” is genuinely “similarly situated.”
• Fentanyl as a differentiator for § 3553(a)(6): The panel accepted the district court’s view that fentanyl, especially in counterfeit pill form with variable potency, represents an additional public-danger factor that can justify higher sentences relative to cocaine-only comparators.
• Co-defendant disparity arguments: The order reinforces the practical lesson of United States v. Bryant: co-defendant differences are not the core of § 3553(a)(6), and even when a judge considers them (as permitted by United States v. Frias), individualized culpability and drug-type/quantity differences will usually defeat claims of “unwarranted” disparity.

For prosecutors and probation offices, the decision underscores the utility of developing record facts about the manner of fentanyl distribution (e.g., counterfeit pills, inconsistent dosing), not merely drug weight, as such facts can substantially support the district court’s § 3553(a) explanation. For defense counsel, it highlights the need to tailor disparity arguments to a truly comparable nationwide cohort and to confront aggravating risk features head-on.