U.S. v. McIntosh

• Citation: 236 F.3d 968
• Decision Date: 12 September 2000
• Docket Number: No. 00-1035,00-1035
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. STEVEN CURTIS MCINTOSH, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 968

236 F.3d 968 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. STEVEN CURTIS MCINTOSH, APPELLANT.

No. 00-1035

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: September 12, 2000

Filed: January 10, 2001

Appeal from the United States District Court for the Southern District of Iowa. [Copyrighted Material Omitted] Before Hansen, Heaney, and Morris Sheppard Arnold, Circuit Judges.

Hansen, Circuit Judge.

Steven Curtis McIntosh pleaded guilty to a charge that he conspired to manufacture methamphetamine, in violation of 21 U.S.C. 846 (1994). On December 20, 1999, the district court ¹ sentenced McIntosh to twenty years in prison. McIntosh appeals his sentence, and we affirm.

I.

A grand jury returned a seven-count, superceding indictment against McIntosh, Lenora ("Jean") Cresswell, John McMillan, and Amy Cresswell. The charges stemmed from an investigation that ensued after the September 12, 1998, death of Jessica Smith, Jean's 14-year-old daughter. Jessica's death resulted from a methamphetamine overdose.

The facts underlying the indictment are truly tragic. In June or July 1998, Jean, her 12-year-old son, and Jessica moved in with McIntosh. Jean initially agreed that she would take care of McIntosh's home if he would supply her with methamphetamine; the two later became romantically involved. McIntosh was privy to a methamphetamine supply because he and McMillan had been manufacturing the drug together since February 1998. McMillan and McIntosh split the manufactured methamphetamine evenly, and after Jean moved in, McIntosh provided the drug to her out of his half. The three shared their methamphetamine with others, including Amy Cresswell, Jean's 21-year-old niece. Amy often used methamphetamine with Jean, but she was also close to Jessica and spent a considerable amount of time with her. Jean and Amy frequently provided methamphetamine to Jessica, as did McMillan on a few occasions. McIntosh was unaware that the three were giving methamphetamine to Jessica. He, in fact, made it known that Jessica was not to be involved with methamphetamine nor was she to know that he and McMillan were manufacturing the drug.

On the afternoon of September 12, 1998, Amy and Jessica ingested methamphetamine together. Amy had been given a coffee filter, previously used in the manufacturing process, that contained residue methamphetamine. She and Jessica soaked the filter in a glass of Diet Coke and then split the concoction between them. Jessica later became unresponsive as McMillan, Amy, and Jessica were driving in a car. McMillan and Amy took Jessica to McMillan's home and later to the hospital where she died early the next morning. A search of McIntosh's home was executed later in the day. Officers conducting the search located items necessary to manufacture methamphetamine and further investigation ensued, resulting in the charges filed in the superceding indictment.

Pursuant to a plea agreement, McIntosh pleaded guilty to a charge that he conspired with Jean and McMillan to manufacture methamphetamine. McIntosh stipulated in his plea agreement that he was responsible for at least 500 grams of a mixture or substance containing methamphetamine, subjecting him to the penalties for manufacturing a controlled substance identified in 21 U.S.C. 841(b)(1)(A) (1994 & Supp. IV 1998). See 21 U.S.C. 846 (providing that a conspirator is subject to the penalties proscribed for the substantive offense underlying the conspiracy). Section 841(b)(1)(A)(viii) requires a "term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall not be less than 20 years or more than life." The plea agreement left open for the district court's determination at sentencing whether McIntosh was subject to an enhanced sentence because of Jessica's death. (Plea Agreement, R. at 19, 10.)

The district court held a sentencing hearing on December 20, 1999, at which time the government offered evidence to show the enhancement to the mandatory minimum sentence was required pursuant to 841(b)(1)(A). After hearing the evidence, the district court made three factual findings essential to the issue: 1) Jessica's death resulted from the use of methamphetamine; 2) the methamphetamine used by Jessica on September 12, 1998, came from either Amy Cresswell, Jean Cresswell, or McMillan; ² and 3) regardless of which of the three supplied the methamphetamine, it "originally came" from McIntosh. The district court further found that the government failed to prove that McIntosh directly furnished Jessica with methamphetamine nor that he had any knowledge she was being supplied with the drug by the others. Despite the fact that he did not supply the drug directly to Jessica, the district court concluded McIntosh was subject to the enhancement because he played a part in manufacturing the drug she did use. The district court sentenced McIntosh to the statutory 20-year minimum sentence. ³

II.

McIntosh challenges his sentence on two grounds. He first contends the district court erroneously enhanced his sentence based on Jessica's death. On appeal, McIntosh asks that we interpret 841(b)(1)(A) to permit imposition of the twenty-year mandatory minimum sentence only if a district court finds that death or serious bodily injury was a reasonably foreseeable result of, or was proximately caused by, a defendant's conduct. He argues the government failed to prove that Jessica's death was reasonably foreseeable, and therefore, the district court should not have enhanced his sentence. ⁴ McIntosh also contends his sentence was imposed in violation of the constitutional protections recently recognized by the Supreme Court in Apprendi v. New Jersey, 120 S. Ct. 2348 (2000).

A.

McIntosh's first argument presents us with a matter of statutory interpretation: whether 841(b)(1)(A)'s language, read in this case in conjunction with 846, requires a district court to find that death or serious bodily injury was reasonably foreseeable to a defendant before imposing the statutory enhancement. The starting point for ascertaining the intended meaning of any statute is the language of the statute itself. See United States v McAllister, 225 F.3d 982, 986 (8th Cir. 2000) (quoting United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997)). If the language is unambiguous, the statute should be enforced as written unless there is clear legislative intent to the contrary. See id. "Courts are obligated to refrain from embellishing statutes by inserting language that Congress has opted to omit." Root v. New Liberty Hosp. Dist., 209 F.3d 1068, 1070 (8th Cir. 2000). In its review of the statutory language, the district court concluded that foreseeability was irrelevant to the enhancement inquiry and that its factual findings warranted an enhancement under 841(b)(1)(A). We review the conclusions de novo. See United States v. Brummels, 15 F.3d 769, 771 (8th Cir. 1994) ("As to application of facts to the legal interpretation of [a criminal statute], the standard of review is de novo.").

We begin our analysis with the language of 841(b)(1)(A)--the applicable penalty provision because McIntosh admitted responsibility for more than 500 grams of methamphetamine mixture. Under 841(b)(1)(A), a "person shall be sentenced to a term of imprisonment which may not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life." We hold that this language is unambiguous and that giving effect to its plain meaning prohibits us from superimposing upon the statute a foreseeability or proximate cause requirement. From the statute's language, it is clear Congress intended to expose a defendant to a more severe minimum sentence whenever death or serious injury is a consequence of the victim's use of a controlled substance that has been manufactured or distributed by that defendant. We decline to hinder Congress's will, apparent from the face of the statute, through a judicial pronouncement that the statute requires more than it says. See Burlington N., Santa Fe Ry. Co. v. Lohman, 193 F.3d 984, 985 (8th Cir. 1999) (recognizing that rules of statutory construction prohibit courts from supplying words that "would defeat the purpose of the statute"), cert. denied, 120 S. Ct. 1832 (2000).

Our reading of 841(b)(1)(A) is consistent with decisions of both the Third and Fourth Circuits. The Fourth Circuit was the first to address the statutory enhancement for death or serious bodily injury. See United States v. Patterson, 38 F.3d 139 (4th Cir. 1994), cert. denied, 514 U.S. 1113 (1995). It, too, agreed that Congress's intent is clear from the plain language of the statute.

Quite simply, the plain language of [the statute] does not require, nor does it indicate, that prior to applying the enhanced sentence, the district court must find that death resulting from the use of a drug distributed by a defendant was a reasonably foreseeable event. . . . [Instead,] [t]he statute puts drug dealers and users on clear notice that their sentences will be enhanced if people die from using the drugs they distribute. . . . Where serious bodily injury or death results from the distribution of certain drugs, Congress has elected to enhance a defendant's sentence regardless of whether the defendant knew or should have known that death would result. We will not second-guess this unequivocal choice.

Id. at 145 (footnote omitted). The Third Circuit followed Patterson, concluding that "Congress recognized that the risk is inherent in [a controlled substance] and thus it provided that persons who distribute it do so at their peril." United States v. Robinson, 167 F.3d 824, 831 (3d Cir. 1999); see also

United States v. Rebmann, 226 F.3d 521, 525 (6th Cir. 2000) ("On its face, the statute is, in effect, a strict liability statute...