United States v. Burkholder

• Decision Date: 04 March 2016
• Docket Number: No. 13–8094.,13–8094.
• Citation: 816 F.3d 607
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Jerry Lee BURKHOLDER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

816 F.3d 607

UNITED STATES of America, Plaintiff–Appellee,

v.Jerry Lee BURKHOLDER, Defendant–Appellant.

No. 13–8094.

United States Court of Appeals, Tenth Circuit.

March 4, 2016.

O. Dean Sanderford, Assistant Federal Public Defender, Denver, CO, (Virginia L. Grady, Interim Federal Public Defender, with him on the briefs), for Defendant–Appellant.

Eric J. Heimann, Assistant United States Attorney, Cheyenne, WY, (Christopher A. Crofts, United States Attorney, with him on the brief), for Plaintiff–Appellee.

Before BRISCOE, HOLMES, and BACHARACH, Circuit Judges.

HOLMES, Circuit Judge.

Jerry Lee Burkholder was charged with distributing a controlled substance, the use of which resulted in the death of Kyle Dollar, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(E). The latter provision imposes a fifteen-year statutory maximum sentence "if death ... results from the use" of certain controlled substances. See 21 U.S.C. § 841(b)(1)(E)(i). The district court declined to instruct the jury that, under § 841(b)(1)(E), the government was required to prove that Mr. Dollar's death was a reasonably foreseeable result of the charged drug distribution. Mr. Burkholder was subsequently convicted. He now asks us to vacate his conviction and remand for a new trial, arguing that the statute requires proof that the substance he distributed proximately caused Mr. Dollar's death. Exercising jurisdiction under 28 U.S.C. § 1291, we reject this argument and affirm the district court's judgment.

I

On the evening of November 8, 2012, Kyle Dollar (the decedent) spent several hours drinking alcoholic beverages with friends at a residence in Rock Springs, Wyoming. Later that evening, the group traveled to the Astro Lounge club. Sometime after midnight, Mr. Dollar wandered away from his friends at the club to talk to other people. When he rejoined the group, Mr. Dollar told them that he was leaving; his brother came to the club to pick him up and took Mr. Dollar home. Later that night, Mr. Dollar returned to the Rock Springs address where earlier he had been drinking; he remarked that he "felt great," and socialized before falling asleep. R., Vol. III, at 355–56 (Trial Tr., dated Sept. 24, 2013). The next morning, Mr. Dollar's friends found him unresponsive and without a pulse; he was dead.

Local law-enforcement officers found no blood, vomit, or obvious injuries on Mr. Dollar, and no drugs or drug paraphernalia. But they did review the text messages in Mr. Dollar's cell phone; they revealed an exchange of messages between Mr. Dollar and Mr. Burkholder (the defendant) between 2:30 a.m. and 4:30 a.m. on November 9. These messages, as well as subsequent interviews, led the officers to search Mr. Burkholder's residence. They seized there a Crown Royal bag containing Suboxone tablets and Suboxone wrappers.

Suboxone is a prescription drug. An active ingredient in it is buprenorphine, a Schedule III controlled substance, which is an opioid commonly prescribed for treating heroin addicts. Mr. Burkholder, a recovering addict, had been prescribed Suboxone as part of his treatment plan. At the time he was prescribed the drug, Mr. Burkholder signed a treatment agreement with his doctor in which he "agree[d] not to sell, share or give any [buprenorphine] to another person." Id. at 531–32 (Trial Tr., dated Sept. 25, 2013). The agreement further evinced his understanding that "mixing buprenorphine with other medications ... and/or other drugs of abuse, including alcohol, can be dangerous." Id. at 532. Nevertheless, Mr. Burkholder admitted to the police that he had given Mr. Dollar a Suboxone tablet in the Astro Lounge's restroom while Mr. Dollar was there the night of November 8.

Mr. Burkholder was subsequently placed under arrest and indicted by a federal grand jury on one count of "knowingly, intentionally, and unlawfully distribut[ing] buprenorphine, a Schedule III controlled substance, the use of which resulted in the death of Kyle Dollar," in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(E). R., Vol. I, at 13 (Indictment, filed Mar. 21, 2013). At Mr. Burkholder's trial, the government presented two expert witnesses: Dr. James Wilkerson, the medical examiner who performed the autopsy on Mr. Dollar, and Dr. Robert Palmer, a forensic toxicologist. Both experts opined that Mr. Dollar's death was the result of his consumption of a combination of buprenorphine and alcohol. Dr. Wilkerson, for example, described how Mr. Dollar's lungs showed signs of a pulmonary edema, or fluid in the lungs, which is a hallmark of death by opioid overdose.¹ Furthermore, according to Dr. Palmer, the testimony of Mr. Dollar's friends completed the picture: "initially feeling pretty good and then maybe feeling a little sick ... then getting sleepier; then as the airways relax,.... breathing against increased resistance" were all "consistent with opioid-related intoxication." R., Vol. III, at 322.

Mr. Burkholder's own expert—a toxicologist, Robert Lantz—agreed that Mr. Dollar had ingested buprenorphine and was "metabolizing some of it" prior to his death, id. at 585–86, but viewed Dr. Wilkerson's conclusion that buprenorphine was the cause of Mr. Burkholder's death to be unsupported. According to Dr. Lantz, buprenorphine has a "ceiling effect" and does not depress a person's respiration beyond a certain point. Id. at 560–61. Instead, he believed it was more likely that Mr. Dollar had died from overdosing on a "synthetic" drug, which general drug-screening procedures would not have detected. Id. at 561. Further, Dr. Marvin Couch, who prescribed Mr. Burkholder the Suboxone, testified that he would not have anticipated that death would result from the low dosage Mr. Dollar apparently consumed.

At the jury-instruction conference, Mr. Burkholder asked the court to instruct the jury that, in order to convict him under § 841(b)(1)(E)(i), it was obliged to find that Mr. Dollar's death was a reasonably foreseeable result of the distribution of Suboxone.² However, the district court declined, concluding instead that the statute did "not impose a ‘reasonable foreseeability’ requirement," and that "but for" causation was all that was required. R., Vol. III, at 613. As such, the court rejected the inclusion of any "proximate cause" or "foreseeability" element in the jury instructions. It instructed the jury as follows regarding the crime of death resulting from drug distribution:

Before you may find the Defendant guilty of the offense charged in the indictment, you must find by proof beyond a reasonable doubt that Kyle Dollar's death resulted from the use of the buprenorphine distributed by the Defendant.

This standard is satisfied upon a finding by you that, but for Kyle Dollar ingesting the buprenorphine distributed by the Defendant, Kyle Dollar would not have died.

R., Vol. I, at 111 (Jury Instrs., filed Sept. 26, 2013) (emphasis added). After receiving the court's instructions, including this one—and considering the evidence—the jury found Mr. Burkholder guilty. Mr. Burkholder timely appealed from the district court's judgment.³

II

The sole issue Mr. Burkholder raises on appeal is whether the district court erred in declining to instruct the jury that, in order to convict him under 21 U.S.C. § 841(b)(1)(E), it was required to find that Mr. Dollar's death was a reasonably foreseeable consequence of Mr. Burkholder's distribution of buprenorphine. Resolution of this issue turns on a question of statutory interpretation: Does 21 U.S.C. § 841(b)(1)(E) —which establishes a statutory-maximum sentence of fifteen years' imprisonment for the distribution of a Schedule III controlled substance if "death ... results from the use of" that substance—require proof of proximate causation?⁴

To the extent that Mr. Burkholder challenges "the district court's instruction because the court allegedly failed to accurately give the jury the correct law"—and to the extent that determining the "correct law" requires us to engage in statutory interpretation—our review is de novo. United States v. Porter, 745 F.3d 1035, 1040 (10th Cir.2014) ; accord United States v. Sturm, 672 F.3d 891, 897 (10th Cir.2012) (en banc); see also United States v. Nacchio, 573 F.3d 1062, 1087 (10th Cir.2009) ("We review questions of statutory interpretation de novo.").

A

At the outset, we provide a brief overview of the structure of 21 U.S.C. § 841 to help clarify the nature of our interpretive inquiry. Section 841(a)(1) makes it unlawful, inter alia, to knowingly or intentionally "distribute ... a controlled substance." Section 841(b) provides the penalties for that unlawful act. As relevant here, subsection (1)(E)(i) of § 841(b) says that

in the case of any controlled substance in schedule III, such person shall be sentenced to a term of imprisonment of not more than 10 years and if death or serious bodily injury results from the use of such substance shall be sentenced to a term of imprisonment of not more than 15 years.

21 U.S.C. § 841(b)(1)(E)(i). As these plain terms reveal, the death-results-from provision operates in the statute to enhance the maximum penalty for the knowing or intentional distribution of a Schedule III controlled substance to fifteen years. If the provision is not triggered, the statutory-maximum penalty for such an offense is ten years. Though it does not specify the actus reus for the offense (i.e., distribution of a controlled substance) or the offense's mens rea (i.e., knowing or intentional), it is now well-settled that such a penalty-enhancement provision must be charged in the indictment and proved by the government beyond a reasonable doubt because it has the effect of increasing the statutory maximum penalty. See, e.g., Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.").

It is...