Burrage v. United States

• Citation: 82 USLW 4076,187 L.Ed.2d 715,134 S.Ct. 881
• Decision Date: 27 January 2014
• Docket Number: No. 12–7515.,12–7515.
• Parties: Marcus Andrew BURRAGE, Petitioner v. UNITED STATES.
• Court: U.S. Supreme Court

134 S.Ct. 881
187 L.Ed.2d 715
82 USLW 4076

Marcus Andrew BURRAGE, Petitioner
v.
UNITED STATES.

No. 12–7515.

Supreme Court of the United States

Argued Nov. 12, 2013.
Decided Jan. 27, 2014.

[134 S.Ct. 883]

Syllabus^*

Long-time drug user Banka died following an extended binge that included using heroin purchased from petitioner Burrage. Burrage pleaded not guilty to a superseding indictment alleging, inter alia, that he had unlawfully distributed heroin and that “death ... resulted from the use of th[at] substance”—thus subjecting Burrage to a 20–year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, 21 U.S.C. § 841(b)(1)(C). 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 convicted Burrage, and the court sentenced him to 20 years. In affirming, the Eighth Circuit upheld the District Court's jury instruction.

[134 S.Ct. 884]

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. Pp. 886 – 892.

(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. ––––, ––––, 133 S.Ct. 2151, ––––, 186 L.Ed.2d 314. Pp. 886 – 887.

(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. ––––, ––––, 133 S.Ct. 2517, 2525, 186 L.Ed.2d 503. Similar statutory phrases—“because of,” see id., at ––––, 133 S.Ct., 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. Pp. 887 – 891.

(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. Pp. 890 – 892.

687 F.3d 1015, reversed and remanded.

SCALIA, J., delivered the opinion of the Court, in which the ROBERTS, C.J., and KENNEDY, THOMAS, BREYER, and KAGAN, JJ., joined, and in which ALITO, J., joined as to all but Part III–B. GINSBURG, J., filed an opinion concurring in the judgment, in which SOTOMAYOR, J., joined.

Angela L. Campbell, Des Moines, IA, for Petitioner.

Benjamin J. Horwich, Washington, D.C., for Respondent.

Jeffrey T. Green, Ryan C. Morris, Jeremy M. Bylund, Sidley Austin LLP, Washington, D.C., Angela L. Campbell, Counsel of Record, Gary Dickey Jr., Dickey & Campbell Law Firm PLC, Des Moines, IA, for Petitioner.

Donald B. Verrilli, Jr., Solicitor General, Counsel of Record, Mythili Raman, Acting Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Benjamin J. Horwich, Assistant to the Solicitor General, Stephan E. Oestreicher, Jr., Attorney,

[134 S.Ct. 885]

Department of Justice, Washington, D.C., for Respondent.

Justice SCALIA delivered the opinion of the Court.^*

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.). We consider 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.

I

Joshua Banka, a long-time drug user, died on April 15, 2010, following an extended drug binge. The episode began on the morning of April 14, when Banka smoked marijuana at a former roommate's home. 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

[134 S.Ct. 886]

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.” Id., at 171.

The District Court denied Burrage's motion for a judgment of acquittal, which argued that Banka's death did not “result from” heroin use because there was no evidence that heroin was a but-for cause of death. Id., at 30. The court also declined to give Burrage's proposed jury instructions regarding causation. One of those instructions would have required the Government to prove that heroin use “was the proximate cause of [Banka's] death.” Id., at 236. Another would have defined proximate cause as “a cause of death that played a substantial part in bringing about the death,” meaning that “[t]he death must have been either a direct result of or a reasonably probable consequence of the cause and except for the cause the death would not have occurred.” Id., at 238. The court instead gave an instruction requiring the Government to prove “that the heroin distributed by the Defendant was a contributing cause of Joshua Banka's death.” Id., at 241–242. The jury convicted Burrage on both counts, and the court sentenced him to 20 years' imprisonment, consistent with § 841(b)(1)(C)'s prescribed minimum.

The Court of Appeals for the Eighth Circuit affirmed Burrage's convictions. 687 F.3d 1015. As to the causation-in-fact element of count 2, the court held that the District Court's contributing-cause instruction was consistent with its earlier decision in United States v. Monnier, 412 F.3d 859, 862 (C.A.8 2005). See 687 F.3d, at 1021. As to proximate cause, the court held that Burrage's proposed instructions “d[id] not correctly state the law” because “a showing of ‘proximate cause’ is not required.” Id., at 1020 (quoting United States v. McIntosh, 236 F.3d 968, 972–973 (C.A.8 2001)).

We granted certiorari on two questions: Whether the defendant may be convicted...