McKEAGUE, J., delivered the opinion of the court, in which ROGERS, J., joined. MERRITT, J. (pp. 521-28), delivered a separate dissenting opinion. OPINION McKEAGUE, Circuit Judge. Defendant-appellant Rafael Phinazee was convicted by a jury of conspiracy to distribute crack and powder cocaine. The presentence report (“PSR”) calculated his total offense level at 38 and placed him in a crimina…
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