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Orgeterix Mortuus Est… But I Had Help – Update for December 17, 2020

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

4th CIRCUIT EXTENDS BURRAGE HOLDING TO DRUG GUIDELINES

Several years ago… OK, several decades ago, I studied Latin in high school under the watchful eye of my sainted Latin teacher, Emily Bernges. When she had us reading Caesar’s Commentaries on the Gallic War, my fellow students and I were taken by Julius’s matter-of-fact report on the denouement of Orgeterix, the Helvetian (think “Swiss”) aristocrat. Orgeterix conspired to take over France, but was hauled off to trial for his nefarious plans, only to be sprung later by 10,000 of his closest friends. After being released, he mysteriously departed this mortal coil. Suicide? Murder? Death by misadventure? No one knows.

orgeterix201217Julius Caesar covered it in the Commentaries with a terse observation: Orgeterix mortuus est. That is to say, “Orgeterix died.”

The drug penalty statute, 21 USC § 841(b), specifies a sentencing enhancement when “death or serious bodily injury results from the use of” the drugs distributed by a defendant. The enhancement is steep: subsection (1)(C), for example, contains no mandatory minimum for distributing small amounts of drug, but “if death or serious bodily injury results from the use of such substance” the minimum is 20 years.

Of course, life is seldom neat, and neither is death. If a defendant hands Abbie Abuser a gram of fentanyl, for example (500 time the lethal dose), and she promptly swallows it all, the grounds for the enhancement are pretty clear. But usually, the victim’s blood turns out to be a toxic waste dump of multiple substances, only one of which came from the defendant. In that case, did “death or serious bodily injury result” from the defendant’s drugs so as to justify the enhanced sentence?

In 2014, the Supreme Court said “no” in Burrage v. United States. Instead, the Court said, when the use of a drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, that defendant cannot be liable for penalty enhancement under 21 USC 841(b)(1) unless such use is a “but-for” cause of the death or injury. Like Orgeterix, the victim mortuus est, but if the mortuus would not have happened but for the defendant’s drugs, no enhancement is appropriate.

sauce170307Burrage settled the issue for the statute. But the sentencing guidelines contain a similar enhancement. We know from Beckles v. United States that it would be a mistake to assume that what’s sauce for the statutory goose is likewise sauce for the Guidelines gander. That is, just because a decision modifies how a statute is applied does not mean that the decision will govern how the Guidelines are interpreted.

Bill Young was convicted of a drug trafficking offense. Because someone he sold drugs to died of an overdose, he received a Guidelines 2D1.1(a)(1) enhancement because death resulted from drugs he sold, setting his Guidelines Base Offense Level at 43.

Burrage only dealt with the 841(b) statute, not the Guidelines. Nevertheless, Bill filed a 2241 habeas corpus action, arguing Burrage was retroactive and the case applied to the Guidelines as well as 21 USC 841(b)(1). He claimed the victim mortuus est, and non one could say his product was the independent cause of death. Last week, the 4th Circuit agreed that Burrage applies to the Guidelines, and ordered the 2241 petition heard.

death200330“For starters,” the Court said, “the language of USSG 2D1.1 significantly parallels the language of 841(b)(1) that Burrage interpreted and that contains the statutory penalty for Young’s charged offense… Because of that parallel language, other courts have recognized that the Guidelines and statute mirror each other in several key respects… We see no reason to treat the Guidelines differently from the statute, especially since they were mandatory when applied to Young.”

Bill was able to take advantage of the 4th Circuit’s Wheeler decision, which permitted him to use a 2241 petition to claim actual innocence of a sentence, not just of a conviction.

Young v Antonelli, Case No 19-7176, 2020 U.S. App. LEXIS 38662 (4th Cir. Dec. 10, 2020)

– Thomas L. Root

Burrage Won’t Save You if the Evidence is There – Update for March 29, 2018

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RIGHT EVIDENCE BUT WRONG INSTRUCTION IS NOT GOOD ENOUGH ON 2255

heroinkill180329People convicted of drug trafficking can get a greatly increased minimum sentence, up to natural life, if the government proves that drugs they distributed caused the death of a user. Up until a few years ago, this provision – 21 USC 841(b)(1)(A) – was a great bludgeon for the government, which was winning enhanced sentence just by showing that someone who died had taken drugs sold by the defendant, no matter how many other things they might have taken, too.

We saw one case where a woman died when she nodded off at the wheel and drove off the road, hitting a tree. She was legally drunk, but also had marijuana and oxycontin in her system. The guy who sold her the oxy got a minimum 20 years.

In 2014, common sense prevailed in Burrage v. United States, when the Supreme Court held that unless the government could prove that “but for” the drugs sold by the defendant, the user-death enhancement could not be applied. In our drunk-driving case above, the defendant got a sentence reduction because no one could testify that without the oxy, our drunk driver would have stayed on the road. But as Lorenzo Roundtree found out last week, Burrage has its limits.

Lorenzo sold heroin to some people who shared their smack with the victim. Shortly after using the heroin, the drunk victim became unresponsive and died. The medical examiner testified that he died as a result of alcohol and drug intoxication. The judge instructed the jury that if it found the heroin contributed to the victim’s death, that was enough, even if it was not the primary cause of death.

After Burrage, that instruction was no longer good law. (In fact, Burrage said the instruction had never been good law). Lorenzo had a 28 USC 2255 on file when Burrage was handed down, so he amended it to claim that his jury instructions were flawed. Last week, the 8th Circuit turned him down.

Lorenzo’s problem was that a medical examiner testified for the government that the alcohol and heroin had worked together, “synergistically” as the doc put it, to depress the victim’s respiratory system. No one contradicted the doctor’s opinion that the percent of alcohol found in the victim’s bloodstream, 0.16%, was not enough to cause death “if that were the only thing that was in his blood.” The doctor testified the alcohol and morphine “probably worked together,” but “the morphine alone could have caused his death.”

death160714The Circuit held that based on doctor’s uncontradicted testimony, “the incorrect jury instruction did not result in prejudice” to Lorenzo. The doc’s opinion that “the morphine alone could have caused the victim’s death” would be enough to let the jury to find that Lorenzo’s drugs were an “independently sufficient cause of the victim’s death,” as Burrage required. What’s more, the 8th said, because the heroin and liquor “worked synergistically to cause” the victim’s death, but the amount of alcohol alone in the victim’s bloodstream was not enough to cause death, any reasonable jury would have found that the heroin was a “but-for” cause of the victim’s death. Therefore, Lorenzo was not harmed by the bad jury instruction, because if the jury had been properly instructed, it would have found Lorenzo qualified for his natural life sentence anyway.

Roundtree v. United States, Case No. 16-3298 (8th Cir. Mar. 22, 2018)

– Thomas L. Root LISAStatHeader2small

A Nation of Second Chances – Update for January 19, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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5th CIRCUIT OKS 2241 ATTACK UNDER BURRAGE

second170119Everyone’s been gushing about second chances, as President Obama goes out in a blaze of commutation glory, granting sentence clemency to over 600 people in his final days in office. And we have no problem with that, except that so many others who were punished with draconian sentences they could never get today were left behind. 

This week also brought a “second chance” for a rational sentence of a different kind. 

Tiofila Santillana was trafficking in methadone. One of her buyers, as buyers of illegally-sold controlled substances are wont to do, overdosed on a cocktail of alcohol and multiple drugs – including methadone – and “shuffel’d off this mortall coile” (which is Shakespearean for “died).” Under 21 USC 841(b)(1)(C), if death results from drugs distributed by a defendant, a court must sentence a defendant to a mandatory minimum 20 years.

The experts testifying in Tiofila’s case agreed that her methadone contributed to the doper’s death, even though it was not the cause of death. The trial court felt obliged to hammer her with a 20-year sentence.

cocktail170119Five years after Tiofila’s conviction, the Supreme Court held in Burrage v. United States that 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 USC 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Tiofila promptly filed for relief.

But here’s the rub. Tiofila was out of time to file a motion under 28 USC 2255, because that statute requires that the motion be filed within a year of the case becoming final. There is an exception where the “right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”

Tiofila filed a petition for writ of habeas corpus under 28 USC 2241, claiming she was entitled to relief under Burrage v. United States. The district court dismissed the petition for lack of jurisdiction, finding that Tiofila had not satisfied the “savings clause” of 28 USC 2255(e) because Burrage was not retroactively applicable on collateral review.

Earlier this week, the 5th Circuit reversed, agreeing with Tiofila that she is entitled to relief. The case provides a clear roadmap as to what must be shown by a petitioner seeking to use a 2241 motion because he or she says a 2255 will not do.

inadequacy17-119Ordinarily, to attack a conviction collaterally, a federal prisoner can seek relief only by a 2255 motion. But under 2255(e)’s “savings clause,” she may file a habeas petition if Sec. 2255 is “inadequate or ineffective to test the legality” of the detention. Courts have held 2255 to be “inadequate or ineffective” if the 2241 petition raises a claim “that is based on a retroactively applicable Supreme Court decision”; (2) the claim was previously “foreclosed by circuit law at the time when [it] should have been raised in petitioner’s trial, appeal or first 2255 motion”; and (3) that retroactively applicable decision establishes that “the petitioner may have been convicted of a nonexistent offense.”

The Court held that Burrage was retroactive whether the Supreme Court had said so or not, because such new Supreme Court decisions “interpreting federal statutes that substantively define criminal offenses automatically apply retroactively,” applying retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal…”

retro160110The district court had dismissed Tiofila’s petition, relying on Tyler v. Cain, which held that for a prisoner to file a second or successive habeas petition based on a new rule of constitutional law, the Supreme Court must have held the rule to be retroactive to cases on collateral review. But Tyler does not apply to the “savings clause” of 2255(e), the Circuit said, which requires only that a qualifying 2241 petition be based on a “retroactively applicable Supreme Court decision,” without specifying that the Supreme Court must have made the determination of retroactivity.

On its face, the Court said, “Burrage is a substantive decision that interprets the scope of a federal criminal statute… At issue in Burrage was the meaning of “death or serious bodily injury results.” The Burrage holding “narrows the scope of a criminal statute, because but-for causation is a stricter requirement than are some alternative interpretations of “results.”

Santillana v. Warden, Case No, 15-10606 (5th Cir. Jan. 16, 2017)

– Thomas L. Root

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