United States v. Heindenstrom

• Decision Date: 30 December 2019
• Docket Number: No. 18-2187,18-2187
• Citation: 946 F.3d 57
• Parties: UNITED STATES of America, Appellee, v. Lucas HEINDENSTROM, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

946 F.3d 57

UNITED STATES of America, Appellee,

v.Lucas HEINDENSTROM, Defendant, Appellant.

No. 18-2187

United States Court of Appeals, First Circuit.

December 30, 2019

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant.

Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

Before Lynch, Selya, and Barron, Circuit Judges.

SELYA, Circuit Judge.

Defendant-appellant Lucas Heindenstrom pleaded guilty to a single count charging him with drug distribution in violation of 21 U.S.C. § 841(a)(1). The district court, relying heavily on a finding that a death resulted from the offense of conviction, imposed an above-the-range term of immurement, justifying the sentence both as an upward departure and an upward variance. Concluding that the sentence is supportable when viewed as an upward variance, we affirm.

I. BACKGROUND

We start by rehearsing the relevant facts and travel of the case. When — as in this case — an appeal trails in the wake of a guilty plea, we normally "draw the facts from the change-of-plea colloquy, the uncontested portions of the presentence investigation report (PSI Report), and the transcript of the disposition hearing." United States v. Narváez-Soto, 773 F.3d 282, 284 (1st Cir. 2014). Here, however, there is a wrinkle: the district court conducted an evidentiary hearing as part of the disposition hearing. Thus, we draw some additional facts from the court's supportable findings following the evidentiary hearing. See United States v. Caramadre, 807 F.3d 359, 369 (1st Cir. 2015).

On March 31, 2016, local police responded to an unattended death in York, Maine. Officers determined that the decedent, Kyle Gavin, had been dead for some time and found a substance that contained fentanyl, an empty needle, a metal spoon, and other drug paraphernalia near his body. The officers then spoke with Gavin's roommates and learned that Gavin, an Army veteran, had met a friend named "Lucas" on the night he died and had given Lucas money.

The officers contacted the federal Drug Enforcement Administration (DEA). The DEA discovered a series of text messages between Gavin and the appellant, sent on the night that Gavin died. Toward the end of this exchange, Gavin indicated that the drugs the appellant had sold him tasted like "sugar." The appellant responded by assuring Gavin that the drugs were "good" and suggesting that the sweet taste came from fentanyl.

The next day, the DEA used Gavin's cellphone to set up a heroin purchase with the appellant and arrested him when he arrived. After waiving his Miranda rights, see Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the appellant admitted that he had sold a gram of heroin to Gavin on March 30.

Subsequent investigation revealed that the substance trafficked by the appellant contained fentanyl, and the text-message exchange indicated that the appellant was aware of the presence of fentanyl. The appellant admitted that he had procured heroin for Gavin on two or three earlier occasions.

A toxicology report indicated that there were 121 mg/dL of ethanol, 120 mg/dL of methanol, and 5.7 ng/mL of fentanyl

in Gavin's system. These revelations were consistent with the report of the medical examiner, who determined that the cause of Gavin's death was "[a]cute intoxication" from the "combined effects of ethanol, methanol and fentanyl."

In due course, a federal grand jury sitting in the District of Maine charged the appellant with distribution of a substance or mixture containing fentanyl. After some preliminaries, not relevant here, the appellant pleaded guilty to the single count of the indictment. Following receipt of the PSI Report, the district court conducted an evidentiary hearing as a subset of the disposition hearing.

During the evidentiary hearing, Jonathan L. Arden, M.D., testified on the appellant's behalf. Dr. Arden discussed each of the substances found in Gavin's system and their contributions to Gavin's death. His opinion was that ethanol, methanol, and fentanyl "all ... played a meaningful role" in Gavin's death, that is, all of them were "contributory." But Dr. Arden could not identify any one among the three toxins as "the sole cause" of death. He explained that the levels of both methanol and fentanyl found in Gavin's system independently could be fatal, but there was no reliable way to separate their effects.

After hearing Dr. Arden's testimony, the sentencing court reviewed an array of statutory and guideline provisions. Pertinently, the court pointed out that the government had not charged the appellant under 21 U.S.C. § 841(b)(1)(C) (which carries a mandatory minimum sentence of twenty years if a defendant distributes a drug and death results). Nor did the government invoke USSG § 2D1.1(a)(2) (which sets a higher offense level when "the offense of conviction establishes that death ... resulted from the use of the substance"). At the government's urging, the court then examined the applicability of USSG § 5K2.1 (which authorizes an upward departure "[i]f death resulted" from an offense of conviction). The government argued that strict but-for causation was not a prerequisite for the application of section 5K2.1, while the appellant, citing Burrage v. United States, 571 U.S. 204, 134 S. Ct. 881, 187 L.Ed.2d 715 (2014), insisted that strict but-for causation was needed.

After weighing the evidence, the sentencing court made several factual findings. Importantly, the court found that the appellant had furnished the fentanyl discovered in Gavin's system; that the appellant knew that the substance he gave to Gavin contained fentanyl; and that Gavin's death was caused by the combined effects of the three toxins discovered in his system post-mortem (ethanol, methanol, and fentanyl

). The court recognized that the amount of fentanyl in Gavin's system was possibly an independent cause of death, but it found that the government had not proven this fact by a preponderance of the evidence. Similarly, the court recognized that the amount of methanol in Gavin's system might have been an independent cause of death. Once again, though, the court eschewed any more specific finding regarding the likelihood that methanol was the independent cause of death. Finally, the court determined that although fentanyl was a contributing factor in Gavin's death, it was not a strict but-for cause as it was "impossible to say" whether Gavin would have lived but for the ingestion of fentanyl

.

Against the backdrop of these factual findings, the court rejected the appellant's argument that an upward departure under section 5K2.1 demands strict but-for causation. The court concluded instead that the offense conduct only needs to be a meaningful, contributing cause of death. The court proceeded to calculate the guideline sentencing range (GSR), which it found without objection to be eight to fourteen months. The government recommended a sentence of up to ninety-six months, and the appellant argued for a sentence of thirty months.¹ The court advised the parties that it had considered the nature and circumstances of the offense, as well as the appellant's history and characteristics.

This brought matters to a head: finding the GSR "woefully insufficient," the court determined that an upward departure was warranted under section 5K2.1. The court further found that forty-six months was the proper extent of the upward departure and proceeded to impose a sixty-month incarcerative sentence. The court stated explicitly, though, that if an upward departure were deemed inappropriate, it would nonetheless "have given [the same sentence] as an upward variance." In the court's view, the very same factors that supported an upward departure also supported an upward variance.

This timely appeal ensued.

II. ANALYSIS

Appellate review of claimed sentencing errors involves a "two-step pavane." United States v. Matos-de-Jesús, 856 F.3d 174, 177 (1st Cir. 2017) ; see United States v. Martin, 520 F.3d 87, 92 (1st Cir. 2008). To begin, we examine any allegations of procedural error. See United States v. Flores-Machicote, 706 F.3d 16, 20 (1st Cir. 2013) ; Martin, 520 F.3d at 92. If the sentence passes procedural muster, we then examine any allegation that it is not substantively reasonable. See Flores-Machicote, 706 F.3d at 20 ; Martin, 520 F.3d at 92. Here, the appellant assails his sixty-month sentence both procedurally and substantively. We address his claims of error sequentially.

A .

Before launching our inquiry into the appellant's claims of error, a threshold matter looms. As said, the district court couched its sentence both as an upward departure and as an upward variance. Viewed solely as an upward departure, the validity of the sentence is a close question. The departure provision relied upon by the district court, USSG § 5K2.1, authorizes an upward departure "[i]f death resulted" from the offense conduct. Because a departure can only be imposed pursuant to "the framework set out in the Guidelines," United States v. Rodríguez-Reyes, 925 F.3d 558, 567 (1st Cir.) (quoting United States v. Aponte-Vellón, 754 F.3d 89, 93 (1st Cir. 2014) ), cert. denied, ––– U.S. ––––, 140 S. Ct. 193, 205 L.Ed.2d 118 (2019), a departure sentence must satisfy whatever criteria the particular departure guideline entails.

Under the departure guideline invoked by the district court, it is necessary to determine the dimensions of the "death resulted" phraseology. In probing those dimensions, we would need to ask what the Sentencing Commission meant when it used that phrase in section 5K2.1. This inquiry would include establishing what standard of causation the Sentencing Commission purposed to require for determining whether death "resulted" from a defendant's conduct. See, e.g., United States v. Rivera-Berríos, 902 F.3d 20, 24-25 (1st Cir. 2018) ; United States v. Colby, 882 F.3d 267, 271-72 (1st Cir.), cert....