U.S. v. Patterson

• Decision Date: 25 October 1994
• Docket Number: 93-5948,Nos. 93-5940,s. 93-5940
• Citation: 38 F.3d 139
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Marvin Joe PATTERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Thomas Charles LAYTHE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 139

38 F.3d 139

UNITED STATES of America, Plaintiff-Appellee, v. Marvin Joe PATTERSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Thomas Charles LAYTHE, Defendant-Appellant.

Nos. 93-5940, 93-5948.

United States Court of Appeals Fourth Circuit.

Argued July 20, 1994.

Decided Oct. 25, 1994.

ARGUED: Stanley David Young, Young & Douglas, Asheville, NC, for appellant Patterson; Ronald Carl True, Lindsay & True, Asheville, NC, for appellant Laythe. Jerry Wayne Miller, Asst. U.S. Atty., Office of the U.S. Atty., Asheville, NC, for appellee. ON BRIEF: Mark T. Calloway, U.S. Atty., Asheville, NC, for appellee.

Before LUTTIG and WILLIAMS, Circuit Judges, and JOSEPH F. ANDERSON, Jr., United States District Judge for the District of South Carolina, sitting by designation.

Affirmed in part and dismissed in part by published opinion. Judge WILLIAMS wrote the opinion, in which Judge LUTTIG and Judge JOSEPH F. ANDERSON, Jr. joined.

OPINION

WILLIAMS, Circuit Judge:

Marvin Joe Patterson and Thomas Charles Laythe appeal their sentences imposed pursuant to their convictions under 21 U.S.C. Sec. 841(a)(1) (1988) and 21 U.S.C.A. Sec. 841(b)(1)(C) (West & Supp.1994). Pursuant to written plea agreements, Patterson pled guilty to unlawful distribution of morphine sulfate and meperidine on May 21, 1992, which resulted in the death of Tracy Sue Carroll, in violation of 21 U.S.C. Sec. 841(a)(1). Laythe pled guilty to aiding and abetting in that offense, in violation of 18 U.S.C. Sec. 2 (1988) and 21 U.S.C. Sec. 841(a)(1). ¹ Each Defendant specifically reserved the right to contest at sentencing whether Carroll's death indeed resulted from his distribution of controlled substances. Under 21 U.S.C.A. Sec. 841(b)(1)(C), a person convicted of violating Sec. 841(a) by distributing schedule I or II controlled substances (such as morphine and meperidine) "shall be sentenced to a term of imprisonment of not less than twenty years or more than life" when "death or serious bodily injury results from the use of such substance." 21 U.S.C.A. Sec. 841(b)(1)(C). The district court sentenced Patterson to 240 months imprisonment and Laythe to 87 months imprisonment.

On appeal, Patterson and Laythe contest their sentences, alleging that the district court erroneously found that Carroll's death resulted from their acts. Laythe also contends that, based upon his aberrant behavior and his minimal or minor participation in the offense, the district court should have granted a downward departure under the United States Sentencing Guidelines (U.S.S.G.). ²

We affirm the sentences of both Patterson and Laythe and, because Laythe's challenge to the district court's failure to depart downward is not appealable, we dismiss his appeal of that issue.

I.

On May 20, 1992, Carroll, a minor who was Laythe's date for the evening, attended a party at Laythe's residence, to which she had also invited Patterson. Patterson brought controlled substances to the party, including Demerol, Mepergan, morphine sulphate, and Valium, all in tablet or capsule form. ³ In exchange for a tattoo, Patterson gave Laythe some of the meperidine and Valium which Laythe put in a box and placed in his bathroom. Carroll later told Patterson, in Laythe's presence, that she was "going to shoot some drugs." (J.A. at 114.) After a discussion with Carroll and Laythe, Patterson left with another guest to obtain syringes from Patterson's residence. Upon Patterson's return, Carroll told him that Laythe "had been giving her the pills [Patterson] traded him all night." (J.A. 116.) Then Patterson, Laythe, Carroll, and others went into the bathroom and injected morphine that Patterson had melted down. Although it is disputed whether Patterson physically injected Carroll, it is undisputed that he provided the drugs and syringes and assisted Carroll by holding her arm to "pop up" a vein for a morphine injection. (J.A. at 117.) Carroll and Laythe passed out shortly after midnight. Patterson and two others injected Patterson's remaining meperidine and morphine and went to sleep around 4:00 a.m. When Patterson and Laythe awoke, they found Carroll dead.

Patterson and Laythe were arrested, indicted, and pled guilty to, respectively, the distribution of controlled substances under 21 U.S.C. Sec. 841(a)(1), and aiding and abetting in such offense under 18 U.S.C. Sec. 2. In their plea agreements, each reserved the right to contest at sentencing whether Carroll's death "resulted" from the distribution of the controlled substances alleged in the indictment. During the sentencing hearing, the district court heard extended testimony as to the factual relationship between Appellants' activities and Carroll's death, and found that "the death did result [from] the drugs brought by the Defendant Patterson to the party." (J.A. at 183.) Accordingly, the district court adopted the suggested Sentencing Guideline imprisonment range, as modified by the application of Sec. 841(b)(1)(C), from the presentence investigation report (PSR) for each Appellant. Patterson was sentenced to 240 months, the lower end of his mandatory minimum guideline range of 240-262 months. Accepting the Government's U.S.S.G. Sec. 5K1.1 motion for downward departure as a result of Laythe's substantial assistance, the district court sentenced Laythe to 87 months.

II.

On appeal, Patterson and Laythe argue that the Government must prove beyond a reasonable doubt, rather than by a preponderance of the evidence, that Carroll's death resulted from a violation of 21 U.S.C. Sec. 841(a)(1), in order to impose the twenty-year mandatory minimum sentence under 21 U.S.C.A. Sec. 841(b)(1)(C). They also contend that the district court erred in not requiring the Government to prove that Carroll's death was a foreseeable result of their distribution of controlled substances before applying Sec. 841(b)(1)(C). Finally, Laythe argues that the district court erred in refusing to make a further downward departure in his sentence by rejecting Laythe's arguments that (1) he was a minor or minimal participant under U.S.S.G. Sec. 3B1.2, and that (2) his actions were the result of a single act of aberrant behavior. We address each contention in turn.

A.

Appellants maintain that Sec. 841(b)(1)(C) is an essential element of the offense of distributing controlled substances and that, as a result, the Government must show beyond a reasonable doubt that Carroll's death resulted from the drugs Appellants distributed. ⁴ Under the Due Process Clause of the Fourteenth Amendment, it is well established that the Government must prove every necessary fact that constitutes the crime charged against a defendant. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970). Yet, the Government is not required to " 'prove beyond a reasonable doubt every fact, the existence or nonexistence of which it is willing to recognize as an exculpatory or mitigating circumstance affecting the degree of culpability or the severity of the punishment.' " McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986) (quoting Patterson v. New York, 432 U.S. 197, 206-07, 97 S.Ct. 2319, 2325, 53 L.Ed.2d 281 (1977) (Government must prove beyond a reasonable doubt all the elements of charged offense)). In determining whether a particular statutory provision is an "essential element of the offense" requiring proof beyond a reasonable doubt or is a "sentencing enhancement" requiring proof only by a preponderance of the evidence, "the legislature's definition of the elements of an offense controls." See United States v. Cross, 916 F.2d 622, 623 (11th Cir.1990) (citing McMillan, 477 U.S. at 85, 106 S.Ct. at 2415-16), cert. denied, 499 U.S. 929, 111 S.Ct. 1331, 113 L.Ed.2d 263 (1991).

Under the principles laid out in McMillan, we conclude that from a close textual analysis, the mandatory minimum provision in Sec. 841(b)(1)(C) is a sentencing enhancement provision. The plain language contained in Sec. 841(b)(1)(C) clearly indicates that punishment is predicated upon conviction under another statute--21 U.S.C. Sec. 841(a). See 21 U.S.C. Sec. 841(b) ("any person who violates subsection (a) of this section shall be sentenced as follows"); cf. United States v. Vasquez-Olvera, 999 F.2d 943, 945 (5th Cir.1993) (in determining whether statutory provision is separate offense or sentence enhancement, "foremost feature of a sentence enhancement provision" is that it "predicates punishment upon conviction under another section"), cert. denied, --- U.S. ----, 114 S.Ct. 889, 127 L.Ed.2d 82 (1994).

Furthermore, a strong analogy can be drawn from the holdings of this Circuit and others that 21 U.S.C. Sec. 841(b)(1)(A), which provides increased mandatory sentences for violations of Sec. 841(a) involving certain amounts of controlled substances, is a sentencing enhancement provision requiring proof only by a preponderance of the evidence. United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989), cert. denied, 493 U.S. 1084, 110 S.Ct. 1144, 107 L.Ed.2d 1049 (1990). See also United States v. Uwaeme, 975 F.2d 1016, 1018 (4th Cir.1992); Cross, 916 F.2d at 623. ⁵ The similarity in language used in the provisions, as well as the shared title of "penalties" and the shared introductory phrase providing for enhancements in sentencing where a violation of Sec. 841(a) has occurred, supports our conclusion that Sec. 841(b)(1)(C) is a sentencing enhancement provision and that the Government needs to prove facts supporting enhancement only by a preponderance of the evidence. Accordingly, we conclude that death or serious bodily injury resulting from the distribution of controlled substances as defined under Sec. 841(b)(1)(C) is a sentencing enhancement provision which must be proved by a preponderance of the evidence.

Next, Appellants maintain that, even if the district court was correct in applying a preponderance of the evidence standard, the evidence...