United States v. Anderson, 021921 FED7, 19-2361

Docket Nº:19-2361
Opinion Judge:WOOD, Circuit Judge.
Party Name:United States of America, Plaintiff-Appellee, v. Teria L. Anderson, Defendant-Appellant.
Judge Panel:Before Easterbrook, Rovner, and Wood, Circuit Judges.
Case Date:February 19, 2021
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

United States of America, Plaintiff-Appellee,

v.

Teria L. Anderson, Defendant-Appellant.

No. 19-2361

United States Court of Appeals, Seventh Circuit

February 19, 2021

Argued October 26, 2020

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. l:17-cr-00158-SEB-TAB-8 - Sarah Evans Barker, Judge.

Before Easterbrook, Rovner, and Wood, Circuit Judges.

WOOD, Circuit Judge.

For years, Teria Anderson sold large quantities of heroin to drug dealers and end users in the Indianapolis area. A jury eventually found Anderson guilty of two drug charges-distributing a controlled substance and conspiracy to distribute. The jury also found that Anderson had caused "serious bodily injury" to an end user who overdosed on her drugs; that finding exposed her to an enhanced sentence. In the end, however, the court imposed a below-guidelines term of 300 months' imprisonment.

On appeal, Anderson's primary arguments take issue with her distribution conviction and the applicability of the serious-bodily-injury enhancement. She also contends that the court erred when it applied a two-level leadership enhancement to her guidelines range. She urges that her distribution conviction should be vacated because it was based on an aiding-and-aberting theory of liability that was unsupported by the evidence. And if we vacate her distribution conviction, Anderson continues, we must also vacate her serious-bodily-injury enhancement, because it is impossible to tell from the jury's verdict whether that enhancement applied only to her flawed distribution conviction, only to her unchallenged conspiracy conviction, or to both. We agree with Anderson on both grounds. We therefore vacate her distribution conviction and her sentence and remand to the district court for resentencing on the conspiracy conviction without the serious-bodily-injury enhancement.

I

Anderson was active in Indianapolis's illegal drug business for several years. In 2016 she encouraged a friend, Michael Sublett, to join her in selling heroin. Sublett agreed and the two settled into a pattern: Anderson would furnish between 100 and 200 grams of heroin to Sublett once or twice a month; Sublett would sell the drugs; and he then would pay Anderson back. In other words, most of these transactions involved "fronting." Occasionally Sublett also stored large quantities of heroin (500 to 600 grams) for Anderson, sometimes for weeks at a time.

After buying the drugs, Sublett cut them with sleeping-aid medication to increase the total amount available for sale. To distribute the heroin, Sublert primarily used two retail-level sellers, one of whom was Frankie Ray. Ray typically took between 100 and 200 grams per transaction. Sublett fronted heroin to Ray at least once. In May 2017, Anderson provided Sublett with an orange-tannish colored heroin that Sublett nicknamed "Kansas City." Sublett used Ray to distribute the new product.

Two events are particularly relevant to this appeal. First, on May 30, 2017, Ray sold heroin to one of his regular retail customers, Ian Buchanan. The next day, Buchanan locked himself in his bathroom, overdosed, and temporarily stopped breathing. Paramedics revived Buchanan using Narcan and then took him to the hospital. After he was released the next day, he called Ray and told Ray that he had overdosed on the Kansas City heroin. Ray replied, "That Kansas City smack ain't no joke, huh?" Buchanan confirmed, "Naw, man, that sh*t don't f**k around, bro'."

The second event occurred on June 29, 2017. That week, Anderson left Indianapolis to go on vacation. Before she departed, she arranged for her uncle, whom she called "Preacher," to supply Sublett with heroin during her absence. The day of the handoff, Anderson instructed Sublett to go to Preacher's house to pick up 200 grams of heroin. They discussed logistics on the phone: Sublett told Anderson to tell Preacher that he would arrive in ten minutes in a white truck. Sublett called Anderson again when he arrived. Anderson confirmed that she was going to tell Preacher to come out to meet Sublett. Preacher's phone was off, however, and so Anderson instead instructed Sublett that he was "gonna have to go up" to the house. Sublett did so, obtained the drugs from Preacher, and then called Anderson to confirm that he had completed the pickup.

Anderson was arrested on July 10, 2017. On August 9, 2017, a grand jury indicted Sublett, Ray, and five other defendants on eight counts of distributing, possessing, and conspiring to distribute heroin. A superseding indictment later added Anderson to the conspiracy count and one distribution count. (She was also charged with and convicted of a third offense, possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). This count was later dismissed when it came to light after trial that Anderson did not have a prior felony conviction, and so we disregard it here.)

Count One of the superseding indictment charged Anderson, Sublett, Ray, and the other defendants with conspiring to distribute 1, 000 grams or more of heroin, in violation of 21 U.S.C. § 846. Count Two charged Anderson with aiding and abetting the distribution of heroin that occurred on May 30, 2017-that is, the sale to Buchanan that resulted in his overdose-in violation of 21 U.S.C. § 841(a)(1). The indictment also included a sentencing enhancement for the offenses charged in Counts One and Two based on Buchanan's suffering "serious bodily injury" from his overdose. See 21 U.S.C. § 841(b)(1)(A). Anderson's co-defendants all pleaded guilty.

Anderson went to trial and was convicted on both charges. For the serious-bodily-injury enhancement, the verdict form asked the jurors whether, "[w]ith respect to Count One, Count Two, or both ... the government has proven beyond a reasonable doubt Ian Buchanan suffered serious bodily injury and that the serious bodily injury ... resulted from the use of heroin distributed by Defendant Teria Anderson." The jury responded: "Yes."

At sentencing, the district court determined that Anderson's total offense level was 42 and her criminal history category was II, resulting in a guidelines range of 360 months to life. That range was influenced both by the serious-bodily-injury finding and by the judge's decision to apply a two-level "leadership" enhancement under U.S.S.G. § 3Bl.l(c) to her offense level, based on her coordination of the June 29 drug pickup between Preacher and Sublert. As we noted, the judge ultimately selected a below-guidelines sentence of 300 months for her. This appeal followed.

II

A

Anderson first challenges the sufficiency of the evidence to support her conviction on Count Two, which charged her with distributing heroin to Ian Buchanan on May 30, 2017. In a sufficiency-of-the-evidence challenge after a jury verdict, we review the evidence presented at trial in the light most favorable to the government and draw all reasonable inferences in its favor. United States v. Grayson Enters., Inc., 950 F.3d 386, 405 (7th Cir. 2020). We will overturn a conviction only if, after reviewing the record in this light, we determine that no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Id. We have described this burden as "nearly insurmountable." United States v. Faulkner, 885 F.3d 488, 492 (7th Cir. 2018). But the word is "nearly," not "completely," and this case illustrates one way in which a defendant can prevail.

The record contains no evidence that Anderson herself distributed heroin to Buchanan on May 30, nor was that the government's theory. Instead, it relied on an aiding-and-aberting theory to link Anderson to the substantive offense. A person who "aids, abets, counsels, commands, induces or procures" the commission of a federal offense "is punishable as a principal." 18 U.S.C. § 2(a). To be liable under section 2(a), a person must (1) take an affirmative act in furtherance of the offense with (2) the intent of facilitating the offense's commission. Rosemond v. United States, 572 U.S. 65, 71 (2014).

At trial, the government essentially argued that anyone in a drug distribution chain could qualify for aiding-and-aberting liability. Thus, it reasoned, Anderson was liable for the May 30 distribution because she sold the heroin to Sublert, who then sold it to Ray, who finally sold it to Buchanan.

In so arguing, the government erred. We find instructive Judge Learned Hand's opinion in United States v. Peoni, 100 F.2d 401 (2d Cir. 1938), which has long been endorsed as an accurate explication of federal aiding-and-aberting liability. See...

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