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1 1 (January 23, 2025)

handle is hein.crs/govesfm0001 and id is 1 raw text is: United States v. McCray and Criminal Sentences for Fentanyl Analogue Offenses January 23, 2025 In 2018, the U.S. District Court for the Western District of New York decided UnitedStates v McCray, rejecting a criminal defendant's challenge to a mandatory minimum sentence for possession with intent to distribute and distribution of an analogue of fentanyl. McCray has attracted the attention of some Members of Congress because it involves a question of statutory interpretation that is relevant to the regulation of fentanyl analogues. This Legal Sidebar provides background on the regulation of fentanyl and its analogues under the Controlled Substances Act (CSA), then summarizes the district court's decision in McCray. The Sidebar concludes with considerations for Congress related to the McCray decision and the regulation of fentanyl analogues. CSA Regulation of Fentanyl and Fentanyl Analogues The CSA regulates drugs and other substances-whether medical or recreational, legally or illicitly distributed-that pose a risk of abuse and dependence. Substances become subject to the CSA through placement in one of five lists, known as Schedules I through V. Controlled substances in Schedule I are subject to the most stringent controls, reflecting a finding that a substance has a high potential for abuse and no currently accepted medical use. Substances in Schedules II through V have accepted medical uses and have been deemed to pose progressively lower risks of abuse and dependence. Fentanyl is a Schedule II controlled substance under the CSA, as it has recognized medical uses related to pain management. Some specific substances chemically related to fentanyl are controlled in Schedule I if they do not have a currently accepted medical use, or in Schedule II if they do. By contrast, cough medicines containing limited amounts of another opiate, codeine, are in Schedule V. (Many other prescription drugs are not controlled substances subject to the CSA.) In addition, a class of several thousand fentanyl-related substances (FRS) are temporarily controlled in Schedule I through March 31, 2025. (For additional discussion of the temporary scheduling of FRS, see this Legal Sidebar.) A substance not specifically designated for control in Schedules I through V may be subject to the CSA as a controlled substance analogue. 21 U.S.C. § 802(32) defines a controlled substance analogue as a substance not otherwise approved by the Food and Drug Administration (FDA) or scheduled under the Congressional Research Service https://crsreports.congress.gov LSB11263 CRS Legal Sidebar Prepared for Members and Committees of Congress

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