Argued November 30, 2011
Appeals from the United States District Court for the Eastern District of Wisconsin. No. 2:08-cr-197—J.P. Stadtmueller, Judge.
Before Manion, Williams, and Tinder, Circuit Judges.
Williams, Circuit Judge.
Joshua Carroll, Andrew Goetzke, David Knuth, Valerie Luszak, and Jeffrey Topczewski died after using heroin distributed by a large-scale narcotics trafficking organization. The five defendants in this case each pled guilty to possession with intent to distribute and conspiracy to distribute in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Because five people died, the government requested that the district court impose a mandatory minimum penalty of twenty years' imprisonment to each defendant's sentence under 21 U.S.C. § 841(b)(1)(A). The district court thought that it was required to impose the same penalty on all of the defendants under a theory of strict liability. So the major issue we need to decide on appeal is whether each of the defendants must receive the same statutory penalty, regardless of their role in the conspiracy or connection to the drugs that killed the users.
We now agree with the Sixth Circuit that a district court must make specific factual findings to determine whether each defendant's relevant conduct encompasses the distribution chain that caused a victim's death before applying the twenty-year penalty. And we affirm the sentences of Jean Lawler, Jason Lund, and Jermaine Stewart since the court found that they were in the distribution chain that led to the five deaths and the record clearly supports those findings. However, we vacate the sentences of Keith Walker and Eneal Gladney, and remand for further proceedings because the district court did not make the required findings.
The conspiracy charged here ran from 2005 to 2008 and operated in and around Milwaukee, Wisconsin, with Lonnie Johnson acting as one of its leaders and supplying bulk quantities of heroin. Stewart was Johnson's chief lieutenant, managing regional operations after Johnson relocated to Chicago. Johnson and Stewart used a network of distributors in Milwaukee and Waukesha to coordinate sales for the organization. Walker and Gladney worked out of Milwaukee as higher-level distributors. The conspiracy's distributors partnered with lower-level street dealers and individual users who brokered further sales to customers.
A substantial portion of the conspiracy's customer base came from Pewaukee, Muskego, and Waukesha— areas west of Milwaukee. Lund worked out of the Waukesha branch as a dealer, connecting potential customers to Stewart and another distributor, Luke Bandkowski. Lawler was a low-level member of the conspiracy, also based in the Waukesha area. She purchased relatively small quantities of heroin from Bandkowski to resell to others and for personal use. The five individuals identified earlier died from using heroin distributed by this organization and four of these deaths occurred in the Waukesha area.
Between 2007 and 2008, the government worked with confidential informants to infiltrate the conspiracy and obtain evidence of its operations. On July 22, 2008, a grand jury returned a one-count indictment charging the defendants with conspiracy to distribute heroin. The indictment further alleged that death and serious bodily injury resulted from the use of heroin distributed by the conspiracy. Each of the appellants entered into plea agreements with the government reserving the right to challenge the sentencing penalty for death or serious injury.
The district court found that Lund had coordinated the sales of heroin that killed two victims: Andrew Goetzke and David Knuth. Goetzke began using heroin in early 2007, buying drugs from the conspiracy through Bandkowski. He was eventually interviewed by police officers and agreed to become a confidential informant. On the night of June 5, 2008, Lund called his ex-girlfriend, Candice Haid, to get her help in coordinating Goetzke's purchase of heroin from Stewart. Lund and Stewart had a prior falling out and were not communicating directly, so Lund got Stewart's current phone number from Haid. Lund and Goetzke drove together to pick up heroin from Stewart's apartment in Milwaukee. The two split the drugs and Lund received an additional thirty dollar cut for setting up the sale. After they injected the heroin, Goetzke left for his mother's apartment with his girlfriend. The next morning, his mother was unable to wake him and called 911, but emergency personnel could not revive him.
One month later, on the night of July 3, 2008, Lund again contacted Stewart to coordinate a sale for himself, Haid, and David Knuth. After completing the purchase, the three began injecting heroin in a car. Knuth stopped breathing almost immediately. Haid was initially able to revive Knuth using cardiopulmonary resuscitation (CPR) and the three started driving home. But Knuth lapsed into unconsciousness and began bleeding from the nose. Haid called 911 while Lund drove to the parking lot of a local healthcare facility. The dispatcher advised that Knuth be moved to a flat surface. So Haid pulled him onto the ground of the parking lot where she administered CPR. Lund drove off. Unfortunately the clinic was closed and Knuth could not be revived by emergency personnel when they finally responded. He was later pronounced dead.
The district court further found that Lawler sold the drugs that killed Jeffrey Topczewski. Jeffrey's sister, Jennifer Topczewski, is a co-defendant in the case and the siblings shared a severe addiction to heroin. On February 17, 2008, Jeffrey talked to his sister about using a recent tax refund to buy heroin. He contacted his sister to get the phone number for Lawler who had sold him drugs a few days earlier. At the time, Jeffrey was living with his parents and used their home phone since he did not have a cell phone. On February 19, 2008, the day before his death, Jeffrey called Lawler from his parents' home phone to set up a purchase. When Jeffrey did not arrive at the agreed time, Lawler called the Topczewski residence that evening to check on his status. Shortly thereafter, Jeffrey went to her house to complete the sale. Telephone records corroborate this series of events and confirm that the only calls from the Topczewski residence were to Jennifer and to Lawler while Jeffrey was home on the 19th. After taking heroin that evening, Jeffrey told his parents he felt sick. The next day, Jeffrey's mother checked his room in the evening and found him dead. In later interviews with police, Jennifer Topczewski and Lawler's friend, Kallie Klappa, eventually confirmed that on the night of February 19th Lawler sold Jeffrey the heroin that killed him.
In addition, two others died from drugs sold by different participants in the conspiracy. The first was Valerie Luszak, a woman in Milwaukee who died on August 26, 2007. That night, she went to the house of a friend, Louis Brown, and offered to share her heroin with him. Brown could identify the heroin as that sold by the conspiracy due to distinctive ways in which the drugs were packaged. He also knew that Johnson, the conspiracy's leader, was Luszak's principal source. After shooting up, Brown warned Luszak about the strength and purity of the dose. But Luszak believed she had built up sufficient tolerance and injected the drug anyway. She fell unconscious and died several hours later. On December 29, 2007, Joshua Carroll set up a purchase of heroin from Bandkowski. Another user informed police that he and Carroll drove with Bandkowski to Milwaukee to collect the drugs that evening. Later that night, emergency personnel were called to Carroll's residence after he was found unresponsive. He could not be revived and was pronounced dead.
The district court found that all five deaths had resulted from heroin distributed by the conspiracy and applied a twenty-year mandatory minimum sentencing penalty to each of the defendants under 21 U.S.C. § 841(b)(1)(A), but the sentences for four of the five appellants were adjusted below twenty years pursuant to § 5K1.1 of the Sentencing Guidelines for substantial assistance provided to the government. Each defendant now appeals the district court's findings and application of the twenty-year penalty to their sentence.
We review the district court's legal determinations and interpretation of sentencing statutes de novo. United States v. Hernandez, 544 F.3d 743, 746 (7th Cir. 2008). The penalty provisions of § 841(b)(1)(A) outline sentencing factors which must be supported by a preponderance of the evidence. United States v. Krieger, 628 F.3d 857, 866-67. We will reverse the district court's factual findings only where there is a "definite and firm conviction that a mistake has been committed." United States v. Bennett, 461 F.3d 910, 912 (7th Cir. 2006).
A. Liability for Death Caused by Drug Use
Each of the defendants pled guilty to conspiracy to possess with intent to distribute and distribute in excess of one kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1), 846. Section 846 specifically provides that "[a]ny person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Section 841(b)(1)(A) increases the penalty when a drug user dies and instructs that a defendant's term of imprisonment "shall not be less than 20 years . . . if death or serious bodily injury results from the use of such substance" distributed in violation of § 841(a)(1). 21 U.S.C. § 841(b)(1)(A).
The conspiracy charged in this case was a broad, multilevel drug network and each defendant played a different role in the organization. But the district court interpreted the penalty provision of § 841(b)(1)(A) as setting an identical twenty-year mandatory floor for all members of the conspiracy because the drug network, as a whole, had caused the deaths of several customers. Although the district court appeared troubled by these sentencing implications, it concluded that Congress intended that all defendants be held strictly liable for deaths caused by illegal drug distribution, regardless of their role in the distribution chain. The defendants argue that this was error and urge that we interpret § 841(b)(1)(A) as requiring a district court to find death or serious bodily injury reasonably foreseeable to a defendant before imposing this statutory en- hancement. This issue is a matter of first impression in this circuit.
Almost every other circuit to consider the penalty under § 841(b)(1)(A) has held that a victim's death need not be reasonably foreseeable for the penalty to apply in cases where the defendant either directly produces, distributes, or uses an intermediary to distribute, fatal doses of drugs. See United States v. Webb, 655 F.3d 1238 (11th Cir. 2011); United States v. De La Cruz, 514 F.3d 121 (1st Cir. 2008); United States v. Houston, 406 F.3d 1121 (9th Cir. 2005); United States v. Soler, 275 F.3d 146 (1st Cir. 2001); United States v. McIntosh, 236 F.3d 968 (8th Cir. 2001); United States v. Robinson, 167 F.3d 824 (3d Cir. 1999); United States v. Patterson, 38 F.3d 139 (4th Cir. 1994). By its very terms, the statutory language of § 841(b)(1)(A) omits any reference to the mental state that would trigger the penalty. It simply applies whenever "death . . . results" from the use of drugs supplied by the defendant. The First and Eighth Circuits have described a defendant's liability under this provision as "strict, " meaning that once a causal connection has been established, a defendant is automatically liable for the increased penalty regardless of whether or not he knew, or should have known, that a drug user might die. See Soler, 275 F.3d at 152; McIntosh, 236 F.3d at 974. Cf. United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012) (affirming district court's use of "contributing cause" language in jury instructions where a drug dealer sold heroin to a user who later died with cocktail of various drugs found in his system), cert. granted, __ S.Ct. __, 2013 WL 1788076 (U.S. ...