United States v. Requena, 980 F.3d 30

Background

Defendants Raymond and Requena ran Real Feel Products, manufacturing and selling "synthetic marijuana" made by dosing plant material with various synthetic cannabinoids obtained from China. At trial the government linked six specific cannabinoids to the operation: XLR11, PB-22, 5F-PB-22, AB-PINACA, 5F-AB-PINACA, and APP-CHMINACA.
The substances were not scheduled when the conspiracy began; the government prosecuted under the Controlled Substance Analogue Enforcement Act (Analogue Act), which treats a substance as a Schedule I controlled substance if it is "substantially similar" in chemical structure and pharmacological effect to a Schedule I or II drug and intended for human consumption.
Federal agents raided Real Feel’s warehouses (seizing raw chemicals and finished product), and evidence showed the business concealed shipments, labeled products "not for human consumption," and changed chemicals when the DEA scheduled particular compounds.
A jury convicted both defendants of conspiracy to distribute/possess with intent to distribute controlled substance analogues (21 U.S.C. §§ 846, 841) and conspiracy to commit money laundering (18 U.S.C. § 1956). The district court sentenced each to lengthy terms; defendants appealed.
On appeal the defendants raised multiple challenges: facial vagueness of the Analogue Act, insufficiency of evidence of knowledge, admissibility of expert testimony on "substantial similarity," jury-unanimity instructions about which substances qualified as analogues, and sentencing factual findings about which substances were analogues.

Issues

Issue	Gov't's Argument	Defendants' Argument	Held
Whether the Analogue Act’s “substantially similar” definition is facially unconstitutionally vague	Analogue Act is constitutional; prior 2d Cir. precedent upholds as-applied challenges and qualitative standards are permissible where applied to real-world conduct	The “substantially similar” standard is vague on its face and Johnson/Dimaya/Davis require striking it down	Court affirmed: Act is not facially vague; Johnson/Dimaya/Davis do not undermine Analogue Act because those cases targeted categorical/ordinary‑case formulations, not qualitative real-world factfinding under the Act
Sufficiency of evidence that defendants knew they were dealing in a controlled substance (knowledge element of §841)	Circumstantial and direct evidence (intent to produce a high, testing product, concealment, avoiding customs, DEA notices, research showing analogue status) satisfy McFadden routes for proving knowledge	Defendants lacked required knowledge that substances were controlled or analogues	Court held the evidence was sufficient to prove defendants knew they were dealing in controlled substance analogues
Admissibility of government experts testifying that substances were "substantially similar" (Daubert challenge)	Experts relied on standard chemical structure comparisons, pharmacological assays and literature; their methods assist jurors and were reliably applied	No objective scientific standard for “substantial similarity”; expert opinions on ultimate question should be excluded	Court held district court did not abuse discretion; experts’ methods were reliable and their inferential step to "substantial similarity" was permissible under Rule 702
Whether jury must unanimously agree on which specific substance(s) qualified as an analogue	Jury need only unanimously find that the offense involved some Schedule I/II controlled substance (or analogue treated as such); specific identity (or which analogue) is a non‑elemental means	A jury must unanimously find that each particular charged substance qualifies as an analogue before convicting based on it	Court held unanimity instruction was correct: jurors must unanimously find some controlled substance/analogue was involved but need not unanimously agree which specific analogue
Sentencing: whether district court erred by not making express jury findings about which substances qualified as analogues before using total quantity for Guidelines	District court may adopt PSR findings and make its own preponderance findings at sentencing; identity/quantity for Guidelines are for judge to resolve by preponderance	Court needed to determine at trial/jury which specific cannabinoids were analogues before using their weights in Guidelines calculation	Court held no procedural error: district court explicitly adopted PSR/findings and made requisite factual findings by preponderance; sentencing was proper

Key Cases Cited

Johnson v. United States, 576 U.S. 591 (U.S. 2015) (invalidated an ordinary‑case categorical residual clause as unconstitutionally vague)
Sessions v. Dimaya, 138 S. Ct. 1204 (U.S. 2018) (applied Johnson vagueness doctrine to a civil removal statute involving "crime of violence")
United States v. Davis, 139 S. Ct. 2319 (U.S. 2019) (applied vagueness principles to a federal criminal statute defining "crime of violence")
McFadden v. United States, 576 U.S. 186 (U.S. 2015) (explained knowledge routes in Analogue Act prosecutions)
Mathis v. United States, 136 S. Ct. 2243 (U.S. 2016) (distinguished elements from means; jury unanimity principles)
Richardson v. United States, 526 U.S. 813 (U.S. 1999) (jury must unanimously find each element of offense)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (fact that increases statutory maximum must be submitted to jury)
Alleyne v. United States, 570 U.S. 99 (U.S. 2013) (extended Apprendi to facts that increase statutory minimum)
United States v. Demott, 906 F.3d 231 (2d Cir. 2018) (upheld Analogue Act against vagueness challenge)
United States v. Ansaldi, 372 F.3d 118 (2d Cir. 2004) (analogue‑related precedent addressing Analogue Act questions)
United States v. Thomas, 274 F.3d 655 (2d Cir. 2001) (en banc) (drug quantity and type as elements for sentencing enhancements)
United States v. Rybicki, 354 F.3d 124 (2d Cir. 2003) (en banc) (discussion of facial challenges and reviewing facial validity)