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Sentencing Guidelines And The Sixth Amendment: Sentencing Enhancements That Increase The Maximum Or Minimum Must Be Submitted To The Jury.


Burrage v. United States

Supreme Court of The United States

Decided January 27, 2014

Long-time drug user Banka died following an extended binge that included using heroin purchased from petitioner Burrage.  After medical experts testified at trial that Banka might have died even if he had not taken the heroin, Burrage moved for a judgment of acquittal, arguing that Banka’s death could only “result from” heroin use if there was evidence that heroin was a but-for cause of death. The court denied the motion and, as relevant here, instructed the jury that the Government only had to prove that heroin was a contributing cause of death. The jury convictedBurrage, and the court sentenced him to 20 years. In affirming, the Eighth Circuit upheld the District Court’s jury instruction. The Supreme Court of the United States granted certiorari.

Issue: The Controlled Substances Act imposes a 20–year mandatory minimum sentence on a defendant who unlawfully distributes a Schedule I or II drug, when “death or serious bodily injury results from the use of such substance.” 21 U.S.C. § 841(a)(1), (b)(1)(A)-(C) (2012 ed.). Whether the mandatory-minimum provision applies when use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or injury.

Held : 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 for penalty enhancement under § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.

(a) Section 841(b)(1)(C)’s “death results” enhancement, which increased the minimum and maximum sentences to which Burrage was exposed, is an element that must be submitted to the jury and found beyond a reasonable doubt. See, e.g., Alleyne v. United States, 570 U.S. ––—

(b) Because the Controlled Substances Act does not define “results from,” the phrase should be given its ordinary meaning. See Asgrow Seed Co. v. Winterboer, 513 U.S. 179, 187, 115 S.Ct. 788, 130 L.Ed.2d 682. Ordinarily, that phrase imposes a requirement of actual causality, i.e.,proof “ ‘that the harm would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” University of Tex. Southwestern Medical Center v. Nassar, 570 U.S. ––––, ––––. Similar statutory phrases—“because of,” see id., at ––––, “ ‘based on,’ “ Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 63, 127 S.Ct. 2201, 167 L.Ed.2d 1045, and “ ‘by reason of,’ “ Gross v. FBL Financial Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 174 L.Ed.2d 119—have been read to impose a but-for causation requirement. This Court declines to adopt the Government’s permissive interpretation of “results from” to mean that use of a drug distributed by the defendant need only contribute to an aggregate force, e.g., mixed-drug intoxication, that is itself a but-for cause of death. There is no need to address a special rule developed for cases in which multiple sufficient causes independently, but concurrently, produce death, since there was no evidence that Banka’s heroin use was an independently sufficient cause of his death. And though Congress could have written § 841(b)(1)(C) to make an act or omission a cause-in-fact if it was a “substantial” or “contributing” factor in producing death, Congress chose instead to use language that imports but-for causality.

(c) Whether adopting the but-for causation requirement or the Government’s interpretation raises policy concerns is beside the point, for the Court’s role is to apply the statute as written.

Facts: Banka stole oxycodone pills from the roommate before departing and later crushed, cooked, and injected the oxycodone. Banka and his wife, Tammy Noragon Banka (Noragon), then met with petitioner Marcus Burrage and purchased one gram of heroin from him. Banka immediately cooked and injected some of the heroin and, after returning home, injected more heroin between midnight and 1 a.m. on April 15. Noragon went to sleep at around 5 a.m., shortly after witnessing Banka prepare another batch of heroin. When Noragon woke up a few hours later, she found Banka dead in the bathroom and called 911. A search of the couple’s home and car turned up syringes, 0.59 grams of heroin, alprazolam and clonazepam tablets, oxycodone pills, a bottle of hydrocodone, and other drugs.

Burrage pleaded not guilty to a superseding indictment alleging two counts of distributing heroin in violation of § 841(a)(1). Only one of those offenses, count 2, is at issue here. (Count 1 related to an alleged distribution of heroin five months earlier than the sale to Banka.) Count 2 alleged that Burrage unlawfully distributed heroin on April 14, 2010, and that “death … resulted from the use of th[at] substance”—thus subjecting Burrage to the 20–year mandatory minimum of § 841(b)(1)(C).

Two medical experts testified at trial regarding the cause of Banka’s death. Dr. Eugene Schwilke, a forensic toxicologist, determined that multiple drugs were present in Banka’s system at the time of his death, including heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. (A metabolite is a “product of metabolism,” Webster’s New International Dictionary 1544 (2d ed.1950), or, as the Court of Appeals put it, “what a drug breaks down into in the body,” 687 F.3d 1015, 1018, n. 2 (C.A.8 2012).) Although morphine, a heroin metabolite, was the only drug present at a level above the therapeutic range—i.e., the concentration normally present when a person takes a drug as prescribed—Dr. Schwilke could not say whether Banka would have lived had he not taken the heroin. Dr. Schwilke nonetheless concluded that heroin “was a contributing factor” in Banka’s death, since it interacted with the other drugs to cause “respiratory and/or central nervous system depression.” App. 196. The heroin, in other words, contributed to an overall effect that caused Banka to stop breathing. Dr. Jerri McLemore, an Iowa state medical examiner, came to similar conclusions. She described the cause of death as “mixed drug intoxication” with heroin, oxycodone, alprazolam, and clonazepam all playing a “contributing” role. Id., at 157. Dr. McLemore could not say whether Banka would have lived had he not taken the heroin, but observed that Banka’s death would have been “[v]ery less likely.

Legal Analysis: In 1986 Congress enacted the Anti–Drug Abuse Act, 100 Stat. 3207, which redefined the offense categories, increased the maximum penalties and set minimum penalties for many offenders, including the “death results” enhancement at issue here.   With respect to violations involving distribution of a Schedule I or II substance (the types of drugs defined as the most dangerous and addictive2) the Act imposes sentences ranging from 10 years to life imprisonment for large-scale distributions, § 841(b)(1)(A), from 5 to 40 years for medium-scale distributions, § 841(b)(1)(B), and not more than 20 years for smaller distributions, § 841(b)(1)(C), the type of offense at issue here. These default sentencing rules do not apply, however, when “death or serious bodily injury results from the use of [the distributed] substance.” § 841(b)(1)(A)-(C). In those instances, the defendant “shall be sentenced to a term of imprisonment which … shall be not less than twenty years or more than life,” a substantial fine, “or both.

Because the “death results” enhancement increased the minimum and maximum sentences to which Burrage was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt. See Alleyne v. United States, 570 U.S. ––––, –––– (2013) (slip op., at 14–15); Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).

The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause. When a crime requires “not merely conduct but also a specified result of conduct,” a defendant generally may not be convicted unless his conduct is “both (1) the actual cause, and (2) the ‘legal’ cause (often called the ‘proximate cause’) of the result.” Those two categories roughly coincide with the two questions on which we granted certiorari. We find it necessary to decide only the first: whether the use of heroin was the actual cause of Banka’s death in the sense that § 841(b)(1)(C) requires.

The Controlled Substances Act does not define the phrase “results from,” so we give it its ordinary meaning.

Thus, “where A shoots B, who is hit and dies, we can say that A [actually] caused B’s death, since but for A’s conduct B would not have died.” The same conclusion follows if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back. Thus, if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of his death even if those diseases played a part in his demise, so long as, without the incremental effect of the poison, he would have lived. See, e.g., State v. Frazier, 339 Mo. 966, 974–975, 98 S.W.2d 707, 712–713 (1936).

This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the visiting team’s leadoff batter hits a home run in the top of the first inning. If the visiting team goes on to win by a score of 1 to 0, every person competent in the English language and familiar with the American pastime would agree that the victory resulted from the home run. This is so because it is natural to say that one event is the outcome or consequence of another when the former would not have occurred but for the latter. It is beside the point that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game. By contrast, it makes little sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a nonessential contributing role in producing the event. If the visiting team wound up winning 5 to 2 rather than 1 to 0, one would be surprised to read in the sports page that the victory resulted from the leadoff batter’s early, non-dispositive home run.

Given the ordinary meaning of the word “because,” the Supreme Court held that § 2000e–3(a) “require[s] proof that the desire to retaliate was [a] but-for cause of the challenged employment action.

The language Congress enacted requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which drug use merely contributed. Congress could have written § 841(b)(1)(C) to impose a mandatory minimum when the underlying crime “contributes to” death or serious bodily injury, or adopted a modified causation test tailored to cases involving concurrent causes, as five States have done,

It chose instead to use language that imports but-for causality. Especially in the interpretation of a criminal statute subject to the rule of lenity, see Moskal v. United States, 498 U.S. 103, 107–108, 111 S.Ct. 461, 112 L.Ed.2d 449 (1990), the Supreme Court cannot give the text a meaning that is different from its ordinary, accepted meaning, and that disfavors the defendant.

The Court held 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.

Stephen Preziosi is a criminal appeals lawyer in New York City’s Times Square.  His firm handles both New York Criminal Appeals and Federal Criminal Appeals throughout the nation.