§ 841(b)(1)(C) Enhancement Requires Proof that Drug Was But-For Cause of Death or Injury

Burrage v. United States, No. 12-7515 (U.S. Jan. 27, 2014) (Scalia for the majority; Ginsburg concurring with Sotomayor)

Under 21 U.S.C. § 841(b)(1)(C), a defendant who unlawfully distributes a Schedule I or II drug has a 20-year mandatory minimum sentence if “death or serious bodily injury results from the use of such substance.”  The death/injury “results from” enhancement is an element that must be submitted to the jury and found beyond a reasonable doubt since it increases the minimum and maximum sentences.  In Burrage’s case, the victim had multiple drugs were present in his system, and no expert was prepared to testify that the heroin Burrage sold was the sole factor for the victim’s death or that the victim would have lived if he had not taken the heroin.  Nevertheless, Burrage was convicted under the enhancement because the jury was instructed that the Government must prove that the heroin Burrage distributed “was a contributing cause” of the victim’s death.  The Eighth Circuit affirmed the conviction. 

The Supreme Court agreed with Burrage that the statute as written requires but-for causation, as a matter of common sense and given the rule of lenity.  The Court reversed Burrage’s conviction on that count and remanded for further proceedings:

We hold that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.

Justices Ginsburg and Sotomayor concurred in the judgment but wrote separately to clarify that they “do not read ‘because of’ in the context of antidiscrimination laws to mean ‘solely because of.’”

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