§ 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.’”

See Scotsblog for more coverage.

Entire Weight of Mixture with 3.2% Cocaine Purity Used for Conviction and Sentence

United States v. Villarreal, no. 12-40589 (July 19, 2013) (Owen, Haynes, Lemelle) (per curiam)

The total weight of a group of bundles weighing 5.9 kilograms with a cocaine purity of 3.2% can be used for a conviction and also to calculate a defendant’s sentence. Applying Chapman v. United States, 500 U.S. 453 (1991), the panel determined that this bundle contained a detectable amount of cocaine, a conclusion supported by chemist testimony that the sample "‘appeared to be in a state that could be ingested by a drug consumer.’" The district court did not count, however, the other 2.5-kilogram group of bundles that only had a cocaine purity of 0.41%, calling that bundle "junk." The panel affirmed the conviction and sentence.

Convictions Reversed for Insufficiency and Cumulative Error; Good Discussion of Deliberate Ignorance

United States v. Delgado, No. 07-41041 (5th Cir. Jan. 19, 2011) (Wiener, Dennis; Clement, J. dissenting)

A common fact pattern, an uncommon result:

Defendant-Appellant Maria Aide Delgado was convicted of (1) possession of marijuana with the intent to distribute and (2) conspiracy to commit the same offense, 21 U.S.C. § 841(a)(1) & (b)(1)(B); 18 U.S.C. § 371.0. She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed. For the reasons assigned herein, we vacate her convictions and sentences, dismiss the conspiracy charge of the indictment because the government failed to introduce sufficient evidence to convict her of conspiracy, and remand the case to the district court for further proceedings on the possession with intent to distribute charge.

The evidence presented by the prosecution was not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado was guilty of conspiracy. Delgado’s unconsummated “agreement” with a produce broker’s agent to commingle marijuana with produce in a motor freight shipment was not an actual agreement as required for the crime of conspiracy: the broker’s agent was an undercover government informer, who only pretended to agree to the scheme with Delgado pursuant to ICE officers’ plan to incriminate Delgado and seize contraband marijuana. The evidence was also not sufficient to support a finding by a jury beyond a reasonable doubt that Delgado agreed with the unknown person who supplied the marijuana, the unknown prospective recipient, or any other person, to commit a crime that amounted to more than a buyer-seller relationship. The district court did not inform the jury that neither an agreement with a government informer who intends to frustrate the conspiracy, nor a simple buyer-seller relationship, is legally sufficient to amount to a conspiracy. Because there was no evidence that Delgado entered into an agreement with anyone other than the informer to engage in anything beyond a simple buyer-seller transaction, the conspiracy charge must be dismissed due to insufficient evidence.

In addition, Delgado’s trial was rendered fundamentally unfair by the cumulative effects of several errors. Two members of the prosecution team engaged in trial misconduct that was unfairly prejudicial to Delgado. The prosecutor, in his closing argument, told the jury that Delgado (who did not take the witness stand) had lied when she told the investigating government agents that she was unaware that marijuana had been hidden in the sleeping compartment of the truck. In addition, a law enforcement officer witness made an uncalled-for comment during his testimony to the effect that Delgado’s trucking company had been involved in a prior, uncharged, drug-related crime. Furthermore, the district court improperly instructed the jury that it could find Delgado guilty of possession if it found that she had been deliberately ignorant as to whether the marijuana was located inside a truck on her premises; that instruction was erroneous because the government failed to lay the required predicate for it by introducing evidence of circumstances indicating that Delgado was subjectively aware of a high probability that the marijuana was in the truck and consciously avoided discovering it. And the record on appeal does not contain a complete transcript of the proceedings at trial, thereby limiting the ability of Delgado’s new appellate counsel to present an effective appeal. These errors, in the context of this case, were cumulatively sufficient to render the proceedings fundamentally unfair. Delgado is therefore entitled to a new trial as to the remaining charge against her.

Judge Clement dissented:

The panel majority disregards the substantial evidence supporting Delgado’s conviction and substitutes its own judgment for that of the jury. Although Delgado never raised the buyer-seller exception or challenged the sufficiency of the evidence at trial or on appeal, the panel majority raises the issue sua sponte. In order to justify the result, the majority panel opinion significantly rewrites and expands this circuit’s buyer-seller exception.

Discussing the cumulative error doctrine in the habeas context, this court recognized that it “is an infinitely expandable concept that, allowed to run amok, could easily swallow the jurisprudence construing the specific guarantees of the Bill of Rights and determining minimum standards of procedural due process.” Derden v. McNeel, 978 F.2d 1453, 1457 (5th Cir. 1992) (en banc). The majority’s decision is a manifestation of precisely that danger. Its holding that prejudicial errors occurred distorts this court’s prosecutorial misconduct and conspiracy doctrines. The majority also misapplies this court’s cumulative error jurisprudence by expanding the doctrine to cover unrelated weak or non-existent errors. It is the rare trial that proceeds without a single miscue; “[a] defendant is entitled to a fair trial, not a perfect one.” United States v. Ragsdale, 438 F.2d 21, 28 (5th Cir. 1971). Delgado’s trial was far from unconstitutionally unfair. The majority’s holding to the contrary will be read to cast doubt on the outcomes of similarly routine trials. I would affirm the jury’s verdict and must respectfully dissent.

It's a long opinion (66 pages), but well worth a read, especially the majority's deliberate ignorance discussion.

Prior Conviction for Conduct In Furtherance of Drug Conspiracy Can Be Used to Enhance Sentence for Later Conviction In Same Conspiracy

United States v. Moody, No. 07-11222 (5th Cir. Apr. 6, 2009) (Smith, Southwick, Engelhardt)

Let's say a defendant gets convicted of a charge arising out of his participation in a drug conspiracy, serves his sentence, rejoins the same conspiracy, and gets convicted of conspiring to possess more than 50 grams of crack with the intent to distribute it. Under 21 U.S.C. § 841(b)(1)(A), does the prior conviction elevate the statutory minimum from 10 years to 20 years? Yes:

Our sister circuits have held that prior convictions for conduct in furtherance of a conspiracy can be used to enhance the statutory penalty for a later arrest under the same conspiracy. We agree and also conclude that an earlier conviction from the same conspiracy can be used to enhance mandatory minimums. A defendant should not benefit in sentencing because he continued in a criminal enterprise even after he was already arrested and convicted for the same enterprise. “[T]he purpose of the mandatory minimum enhancement is to target recidivism . . ., [and] it is more appropriate to focus on the degree of criminal activity that occurs after a defendant’s conviction for drug-related activity is final rather than when the conspiracy began.” United States v. Garcia, 32 F.3d 1017, 1019-20 (7th Cir. 1994) (citation omitted).

The opinion does not address the potential double jeopardy implications of this holding.

By the way, there's some inaccurate language about reasonableness review that you need to be aware of. Before addressing the § 841 enhancement issue, the opinion says this:

Sentencing guideline decisions are reviewed for abuse of discretion. See United States v. Rowan, 530 F.3d 379, 381 (5th Cir. 2008). “Though we review a sentence for abuse of discretion, we review the district court’s application of the guidelines de novo and its findings of fact at sentencing for clear error.” Klein, 543 F.3d at 213(citation omitted). “An error in applying the guidelines is a significant procedural error that constitutes an abuse of discretion.” Id. (citation omitted).

That's incorrect for a couple of reasons. First, reasonableness review has nothing to do with whether § 841 authorizes an enhanced sentence in these circumstances. That's simply a matter of statutory interpretation to be reviewed de novo (assuming the issue was preserved below, which it appears to have been). Second, it is an incorrect statement of how reasonablness review operates. Rowan did not say that sentencing guideline decisions are reviewed de novo; it said "We review District Court sentencing decisions for abuse of discretion. Gall, 128 S. Ct. at 597[,]" before going on to explain the bifurcated review process Gall established (and which another panel explained again recently in Delgado-Martinez). Moreover, it doesn't make sense to say that guideline decisions are reviewed for abuse of discretion and to then say that guideline application issues are reviewed de novo (for legal issues) and for clear error (for factual issues). So the first sentence should just say "sentencing decisions," rather than "sentencing guideline decisions."

Unfortunately, the court makes the same mistake a few paragraphs later when it addresses a guideline issue that the same defendant raised:

We review guideline decisions, whether inside or outside the guideline range, for abuse of discretion. See Gall v. United States, 128 S. Ct. 586, 597 (2007). “In performing that review, we are ‘first [to] ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range.’” United States v. Williams, 517 F.3d 801, 808 (5th Cir. 2008) (citing Gall, 128 S. Ct. at 597) (quotations and ellipses omitted). Findings of fact are reviewed for plain error; legal conclusions, de novo. See United States v. Villanueva, 408 F.3d 193, 202 (5th Cir. 2005).

Although the court cites Gall in this paragraph, rather than Rowan, it's still incorrect. Here's what Gall said:

Regardless of whether the sentence imposed is inside or outside the Guidelines range, the appellate court must review the sentence under an abuse-of-discretion standard. It must first ensure that the district court committed no significant procedural error, such as failing to calculate (or improperly calculating) the Guidelines range, treating the Guidelines as mandatory, failing to consider the § 3553(a) factors, selecting a sentence based on clearly erroneous facts, or failing to adequately explain the chosen sentence-including an explanation for any deviation from the Guidelines range. Assuming that the district court's sentencing decision is procedurally sound, the appellate court should then consider the substantive reasonableness of the sentence imposed under an abuse-of-discretion standard.

Thus, abuse-of-discretion is the standard of review at step two when the court of appeals evaluates the substantive reasonableness of the sentence, it is not the standard for determining whether a district court committed procedural error in the Guidelines calculation.