In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1333
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
JENNIFER L YNN K RIEGER,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 06 CR 40001 JPG 1— J. Phil Gilbert, Judge.
A RGUED S EPTEMBER 17, 2009—D ECIDED D ECEMBER 7, 2010
Before R OVNER, SYKES, and T INDER, Circuit Judges.
R OVNER , Circuit Judge. The afternoon before
Thanksgiving, 2005, Jennifer Curry’s mother found her
nineteen-year-old daughter dead on a sofa at the home
of Curry’s father. At the scene, investigators found,
among other things, a chewed 100 microgram Duragesic
patch. Duragesic is a brand name for a fentanyl skin
patch, a powerful opioid that is delivered across the
skin in small steady doses over the course of several
days. It is not meant to be ingested orally nor injected
2 No. 09-1333
under the skin, but sometimes is by those who are
abusing the drug. Of course, fentanyl is available only
by prescription and, not surprisingly, Jennifer Curry
did not have one. Her friend, Jennifer Krieger, however,
had such a prescription and despite her pain from
severe spinal cord and disk problems, she began selling
the patches to others for $50 apiece or, as happened
here, giving them to her friends. On November 22, 2005,
Krieger filled her prescription for the patches and later
that afternoon gave one to Curry. The two women then
proceeded, with some other friends, to several bars.
Krieger left Curry at around midnight and another
witness saw Curry leave a bar with two men in the
early hours of November 23. Curry arrived at her father’s
home at approximately two o’clock in the morning. Her
mother found her unresponsive at approximately four
o’clock the next afternoon and began performing CPR.
When the paramedics arrived, they determined that
Curry had been dead for some time. At the scene, the
investigators found a hypodermic needle, a small pipe
with burnt residue on it, and two red capsules that were
not taken into evidence and tested. A medical examiner
found traces of many drugs in Curry’s system, including
cocaine, benzodiazepines, cannabinoids, and Oxycodone,
but concluded that Curry died from fentanyl toxicity.
The federal grand jury returned a two-count indict-
ment on January 5, 2006, charging Krieger with distribu-
tion of divers amounts of fentanyl with death resulting,
under 21 U.S.C. § 841(a)(1) and § 841(b)(1)(c). Krieger
concedes that she gave Curry a patch. She denies, how-
ever, that the government proved sufficiently that
No. 09-1333 3
Curry’s death resulted from her abuse of the fentanyl
patch. Krieger objects both to the manner in which the
government proved that “death resulted” (as a sen-
tencing factor proved by a preponderance of the evi-
dence rather than an element proved beyond a rea-
sonable doubt) and the sufficiency of the evidence. In
particular, Krieger argues that the government failed to
link sufficiently Curry’s death to the fentanyl.
Krieger’s claim of insufficiency is based, in part, on a
critical weakness in the government’s case. In a strange
twist of events, the government’s main witness, the
medical examiner, Dr. John Heidingsfelder, fled the
country under a cloud of suspicion. It seems that
Heidingsfelder had legal problems of his own,
including tax and ethics trouble, and had left the
country and set up a practice in the Cayman Islands.
Investigators for the U.S. Attorney’s office had been
unable to track him down. Heidingsfelder also had been
disciplined by the Indiana Medical Licensing Board for
engaging in a prohibited personal relationship with a
patient, for prescribing medication to his girlfriend/
patient, and failing to keep abreast of current profes-
sional theory and practice. Apparently, Heidingsfelder
had engaged in sexual contact with a patient under
his care and provided her hydrocodone and other
narcotic drugs. The woman committed suicide after
Heidingsfelder terminated the relationship.
With the main witness unavailable, the government
informed the court that it was engaged in good faith
plea negotiations. When those negotiations failed, the
4 No. 09-1333
government returned a one-count superseding indict-
ment in which the “with death resulting” language of the
indictment had been eliminated. In this superseding
indictment, Krieger was charged only with distribution
of divers amounts of fentanyl in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C). The following day, Krieger
filed a motion to dismiss the indictment arguing that
the unavailability of the doctor who performed the
autopsy presented an incurable confrontation clause
and chain-of-custody problem. The district court denied
the motion but left open the possibility that it would
revisit the issue at a later time.
On October 18, 2008, Krieger pleaded guilty to the
superseding indictment with the specific exclusion that
she was not pleading guilty to causing the death of
Curry. The following exchange occurred between Krieger
and the court:
THE COURT: Ms. Krieger, without admitting that
the patch that you sold or gave to Jennifer Curry
resulted in her death, the question is: Is the factual
basis that you, on November 23rd, 2005, did
knowingly and intentionally distribute diverse [sic]
amounts of fentanyl correct?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. At this time I’m going to ask
you how you plead to the charge in the superseding
indictment that on November 23rd, 2005, you did
knowingly and intentionally distribute diverse
[sic] amounts of fentanyl, a Schedule II controlled
No. 09-1333 5
substance, in violation of federal law, guilty or not
guilty?
THE DEFENDANT: I am guilty.
(R. at 14-1 pp.12-13).
Krieger’s pre-sentencing report set forth a recom-
mended sentencing range of ten to sixteen months. The
government filed objections, arguing that the court
should find that Curry’s death resulted from Krieger’s
distribution of fentanyl, thus triggering a mandatory
m inimum sentence of twenty years under 21
U.S.C. § 841(b)(1)(C). That statute instructs, “[I]f death
or serious bodily injury results from the use of such
substance [such person] shall be sentenced to a term of
imprisonment of not less than twenty years or more
than life.” Id. In the alternative, the government sug-
gested an upward departure under either United States
Sentencing Guideline § 5K2.1 (allowing upward departure
where death has resulted) or § 5K2.21 (allowing upward
departure to reflect seriousness of the offense based
on dismissed charges). In response, Krieger argued in
her sentencing memorandum that the court should con-
sider, under 18 U.S.C. § 3553(a), mitigating factors in-
cluding her difficult upbringing, the fact that she had
been a victim of rape and physical violence, her sig-
nificant medical and psychological problems, her sub-
stance abuse, and her responsibilities as a single mother.
The court held a sentencing hearing on October 18
and 19, 2009, to determine whether the fentanyl had
resulted in the death of the victim. During that hearing,
the government called numerous witnesses, including
the previously unavailable but subsequently found
6 No. 09-1333
Heidingsfelder. Krieger called Dr. Long, a forensic toxicol-
ogist who testified regarding problems with evidence
collection and who challenged the determination of the
cause of death. We will fill in the remaining details of the
evidence as necessary below.
On January 16, 2009, the district court issued its order,
finding, by a preponderance of the evidence, that the
fentanyl supplied by Krieger resulted in the death of
Curry. The court found Heidingsfelder’s testimony re-
garding his reasons for leaving the country not
credible, but found his testimony regarding how he
conducted the autopsy and how he arrived at his con-
clusions as to the cause of Curry’s death to be credi-
ble. In view of the conflicting evidence as to the
cause of Curry’s death, the court concluded that the
government would not have been able to prove, beyond
a reasonable doubt, that Krieger’s distribution of
fentanyl was the cause of Curry’s death, had Krieger
been charged with that offense. The court was
persuaded, however, that a preponderance of the
evidence established fentanyl as the cause of Curry’s
death, and concluded that “the Government has estab-
lished that it is more probable than not that Ms. Krieger’s
distribution of fentanyl to Ms. Curry resulted in
Ms. Curry’s death.” (R. at 154, p.8).
Once the court made the finding, by a preponderance
of the evidence, that death resulted, it concluded that it
was obligated to impose the mandatory statutory mini-
mum under § 841(b)(1)(C) “if death results”—twenty
years. As it turns out, twenty years was the one and
only sentence the court could impose.
No. 09-1333 7
To understand this sentence, we must skip ahead of
ourselves for a moment with a promise to circle back for
a fuller explanation of the law. Under Apprendi v. New
Jersey, 530 U.S. 466 (2000), the court could not impose
a sentence greater than the twenty-year statutory limit
for distribution of the drug—the crime to which
Krieger pleaded guilty. But because the court found
that Curry’s death resulted from the distribution of
fentanyl (by a preponderance of the evidence, but
again, more on this later), the court had no choice but to
impose the mandatory minimum sentence triggered
by that fact—in this case, twenty years. In short, in
this case the mandatory minimum triggered by facts
found by the court based on a preponderance of the
evidence in sentencing converged with the statu-
tory maximum imposed for facts to which Krieger
pleaded guilty as an element of the crime. The result
was that the court could impose exactly one sen-
tence—twenty years. The judge had no discretion what-
soever in the choice of sentence.
The district court was uncomfortable, it seems, with
the fact that “Krieger, while convicted of distribution
of divers amounts of narcotics, is being sentenced for
homicide.” (R. at 154, p.10). The court went on at some
length criticizing the sentencing scheme, which allowed
it absolutely no discretion in sentencing. In its written
decision, the court declared that “had the Court the
discretion to insist that the Government prove beyond
a reasonable doubt that the distribution to which
Krieger pleaded guilty resulted in Curry’s death
8 No. 09-1333
before imposing the statutory minimum sentence, it
would have exercised that discretion in this case.” Id.
at p.10. The court made it clear that it was sentencing
Krieger to twenty years as it felt that it had no choice,
and specifically noted that it otherwise would have
been inclined to impose a sentence within the range of
168 to 210 months (14-17.5 years).1 Id. at pp.10, 13.
At sentencing, the court stated:
This has probably been one of the most difficult
cases I’ve had to rule upon in the over 16 years I’ve
been a federal judge and four years prior to that.
Probably over the 20 years I’ve been a judge, this is
one of the most difficult decisions I’ve had to make,
and it’s a decision that I do not agree with, but it’s
a decision that, when I take an oath, I have to uphold
the law. I struggled with the evidence here and
the credibility issues, and I’m struggling with the
law here. But my job is to apply the law. I don’t
make it. And there have been times I’ve had to
make decisions that I personally do not agree with.
1
Although the pre-sentence report had suggested a sentencing
range of ten to sixteen months, the court determined that it
could have and would have applied the adjusted base offense
level called for in U.S.S.G. § 2D1.1(a)(2), finding that the
government had established the “death resulting” factor by a
preponderance of the evidence. (R. 154, p.13) After reducing
for acceptance of responsibility, the district court came to a
total offense level of thirty-five and a sentencing range of 168-
210 months’ incarceration. Id.
No. 09-1333 9
I agree that you need to go to jail for a long time, but
as I said in my opinion, 20 years is too harsh.
(R. at 14-10, p.24).
Following sentencing, Krieger filed a timely notice of
appeal to this court.
II.
A.
Krieger maintains that the fact that a death resulted
from the distribution of fentanyl is an element of the
offense. If the fact of a resulting death is deemed an
element of the offense, then it must be pleaded in the
indictment and proved to a jury beyond a reasonable
doubt. 2 Harris v. United States, 536 U.S. 545, 549-50 (2000).
The district court, we have noted, did not believe that
the government could have met that burden here. (R. at
154, pp.8, 10). The government maintains that because
the finding did not raise the statutory maximum term, it
is appropriately characterized as a sentencing factor.
Sentencing factors need not be charged nor proved
beyond a reasonable doubt, but may instead be found
by the court at sentencing by a preponderance of the
2
In this case we repeatedly use the expression “proved to the
jury,” as did the Supreme Court in Apprendi. More accurately,
one might describe facts that must be proved to a jury, if the
defendant has chosen to be tried by a jury, or to the judge as
finder of fact, if the defendant has so chosen. For efficiency,
however, we will continue to refer to facts that must be
proved to a jury.
10 No. 09-1333
evidence. Harris, 536 U.S. at 549-50. We review these
issues of law regarding Apprendi and burdens of proof de
novo. United States v. Clark, 538 F.3d 803, 811 (7th Cir.
2008).
The outcome in this case highlights the critical nature
of the distinction between sentencing factors and ele-
ments. In this case, without death resulting, the maxi-
mum penalty for distributing small amounts of fentanyl
would have been twenty years, with no minimum penalty.
21 U.S.C. § 841 (b)(1)(C) (“In the case of a controlled
substance in schedule I or II . . . such person shall be
sentenced to a term of imprisonment of not more than
20 years.”). In cases where death results from the distrib-
ution, the sentence increases to a minimum of twenty
years and a maximum of life in prison. Id. Once a court
makes a finding that triggers a mandatory minimum
sentence, it has no choice but to impose that sentence.
See United States v. Roberson, 474 F.3d 432, 434-35 (7th Cir.
2007) (district court judges may not ignore statutory
sentencing ranges).
To resolve the dispute between Krieger and the gov-
ernment, we must turn to the basics on sentencing
and burdens of proof. In the watershed case of Apprendi,
the Supreme Court held that the Due Process Clause
of the Fifth Amendment and the notice and jury trial
guarantees of the Sixth Amendment mandate that
“[o]ther than the fact of a prior conviction, any fact that
increases the penalty of a crime beyond the prescribed
statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at
490. Stated more colloquially (and for simplicity sake,
No. 09-1333 11
ignoring the fact of a prior conviction, as no such facts
are at issue here), Congress determines a sentencing
range by statute, and any fact that increases the sen-
tence beyond that range must be presented to a jury and
proved beyond a reasonable doubt. Any fact that does
not increase the sentence beyond the range can be
proved by a preponderance of the evidence by the court
alone.
But what of factors that increase the minimum penalty
for a crime—for example, factors that increase a defen-
dant’s possible sentence from 0-20 years to 10-20 years’
incarceration? According to Supreme Court precedent,
the constitutional considerations articulated in Apprendi
do not apply to increases in minimum penalties. Harris
v. United States, 536 U.S. 545, 557 (2002). Consequently,
a statute can increase a minimum penalty when a fact
is found by a judge using a preponderance of the evi-
dence standard. McMillan v. Pennsylvania, 477 U.S. 79, 91
(1986). The reason, according to that Court, is that a
statute that sets a mandatory minimum “neither alters
the maximum penalty for the crime committed nor
creates a separate offense calling for a separate penalty;
it operates solely to limit the sentencing court’s discre-
tion in selecting a penalty within the range already avail-
able to it.” Id. at 87-88. In this way, these provisions “up
the ante” for a defendant only by raising the mini-
mum sentence within the statutory plan. Id. at 88.
To recap, Apprendi, in this case, set the maximum sen-
tence at twenty years, for the facts to which Krieger
pleaded. The “death resulting” finding set the mini-
12 No. 09-1333
mum sentence at twenty years. Thus, the mandatory
minimum converged with the statutory maximum and
the district court could impose but one sentence—twenty
years.
Both in dissent in Apprendi and in cases that
followed, some Supreme Court justices concluded that
the holding in McMillan could not survive the reasoning
in Apprendi. Justice Stevens, for example, recently
stated, “[n]ot only was McMillan wrong the day it
was decided, but its reasoning has been substantially
undermined—if not eviscerated—by the development
of our Sixth Amendment jurisprudence in more recent
years.” United States v. O’Brien, 130 S. Ct. 2169, 2182
(2010) (Stevens, J., concurring); See also Apprendi, 530
U.S. at 518 (Thomas, J., dissenting) (“The consequence of
the above discussion for our decisions in Almendarez-
Torres and McMillan should be plain enough.”); Harris,
536 U.S. at 572 (Thomas, J., dissenting) (noting that
McMillan, conflicts with the Court’s later decision in
Apprendi and should be overruled). After all, in
Apprendi, the majority explicitly endorsed the conclu-
sion reached by Justice Stevens in an earlier case that:
“[I]t is unconstitutional for a legislature to remove from
the jury the assessment of facts that increase the
prescribed range of penalties to which a criminal de-
fendant is exposed. It is equally clear that such facts
must be established by proof beyond a reasonable
doubt.” Apprendi, 530 U.S. at 490 (citing Jones v.
United States, 526 U.S. 227, 252-53 (1999)) (Stevens, J.,
concurring)). Increasing a minimum sentence certainly
would seem to increase the range of penalties to which
a defendant is exposed.
No. 09-1333 13
Despite these doubts, in Harris, the Supreme Court (over
considerable dissension, as we will discuss below) held
that McMillan survived. Harris, 536 U.S. at 568. Under
the Harris plurality’s reasoning, once a trial jury has
found all the facts necessary to establish the maximum
sentence beyond a reasonable doubt, the Fifth and Sixth
Amendments have been satisfied, and the judge may
impose any sentence within the statutory range based
on facts not alleged in the indictment or proved to a
jury. Id. at 565. That Court went on to explain that such
a finding does not expose a defendant to a punish-
ment greater than that otherwise legally prescribed, and
those facts not alleged in the indictment nor proved to
a jury beyond a reasonable doubt may trigger a man-
datory minimum higher than the sentence the judge
may otherwise have imposed. Id. at 566.
The Harris Court thus confirmed that elements of an
offense must be proved to the jury beyond a reasonable
doubt, but relevant conduct used in sentencing may be
determined by the court using the preponderance of
the evidence standard. Harris, 536 U.S. at 549-50. But
how does one determine whether a particular fact is
an element or a sentencing factor? The Supreme Court
tackled this question too in Harris, and reiterated
its conclusions in its recent decision in O’Brien, 130 S. Ct.
at 2169. In both Harris and O’Brien, the Court was called
upon to consider whether a particular provision of
18 U.S.C. § 924(c)(1) should be characterized as a sen-
tencing factor that could be determined by the court
using a preponderance of the evidence standard or as
an element of the crime that must be found by a jury
14 No. 09-1333
beyond a reasonable doubt. In Harris, 536 U.S. at 550-51,
the provision at issue increased the penalty if the defen-
dant brandished a weapon. 18 U.S.C. § 924(c)(1)(A)(ii) (“if
the firearm is brandished, [the defendant will] be sen-
tenced to a term of imprisonment of not less than
7 years.”). The Court held that this was a sentencing factor
to be found by the judge. Harris, 536 U.S. at 556. And in
O’Brien, the provision at issue increased the penalty if
the gun used by the defendant was characterized as a
machine gun. 18 U.S.C. § 924(c)(1)(B)(ii) (“if the firearm
possessed by a person convicted of a violation of this
subsection . . . (ii) is a machinegun . . . the person shall
be sentenced to a term of imprisonment of not less than
30 years.”) O’Brien, 130 S. Ct. at 2175-76. The O’Brien
Court determined that this provision was an offense
element that must be found by a jury beyond a reason-
able doubt. O’Brien, 130 S. Ct. at 2180. These cases
provide the guideposts for our determination here.
According to the Supreme Court in O’Brien, the
analysis must begin with any previous Supreme Court
assessment of the matter (in this case, there is none).
Then, the court must evaluate (1) the language and struc-
ture of the statute, (2) tradition, (3) the risk of unfairness,
(4) the severity of the sentence, and (5) any legisla-
tive history. O’Brien, 130 S. Ct. at 2175.
In this case, the language of 21 U.S.C. § 841, at first
blush, would seem to be the beginning and end of the
element/sentencing factor inquiry. Section (a) of the
statute is labeled “unlawful acts” and (greatly simplified)
prohibits anyone from knowingly or intentionally
No. 09-1333 15
making or distributing drugs or their counterfeits.
Section (b) is labeled “penalties” and sets forth the ap-
plicable sentences. In Harris, the Court noted that “we
can presume that [a statute’s] principal paragraph
defines a single crime and its subsections identify sen-
tencing factors.” Harris, 536 U.S. at 553. This certainly
seems to be the case here. Thus, the language of the
statute would appear to leave no option but to hold that
“death resulting” is a sentencing factor for the court
to consider using the more relaxed burden. This jibes
with our previous holdings in which “[w]e have re-
peatedly held that § 841’s elements are contained in
subsection (a); subsection (b) contains the considera-
tions which determine the maximum and minimum
sentence.” United States v. Martinez, 301 F.3d 860, 865
(7th Cir. 2002); see also United States v. Bjorkman, 270
F.3d 482, 491-92 (7th Cir. 2001); United States v. Brough,
243 F.3d 1078, 1079 (7th Cir. 2001). But the cases cited
for this proposition in this Circuit address only the ques-
tion of whether the drug quantity provisions of § 841(b)
are sentencing factors or elements and fail to address
whether the same holds true for the “death resulting”
language of § 841(b). Moreover, although we have said
in shorthand that § 841(a) contains the elements and
§ 841(b) the sentencing factors, what we have really
articulated is that drafting, ordering, and labeling do not
matter, rather “Apprendi holds that the due process
clauses of the fifth and fourteenth amendments make
the jury the right decisionmaker (unless the defendant
elects a bench trial), and the reasonable-doubt standard
the proper burden, when a fact raises the maximum
16 No. 09-1333
lawful punishment.” Brough, 243 F.3d at 1079. “It makes
no constitutional difference whether a single sub-
section covers both elements and penalties [or] whether
these are divided across multiple subsections.” Id.
Furthermore, the Harris Court has instructed that lan-
guage and structure are not the only consideration.
Harris, 536 U.S. at 553. And so, although the language
seems fairly definitive, we must look at the remaining
factors to see in which direction they point.
Tradition and past congressional practice, the Harris
Court concluded, are important considerations. Id. Other
federal statutes to include the “death resulting” or similar
language are structured in a similar manner to 18 U.S.C.
§ 841. Those statutes generally begin with a paragraph
that defines the crime and then contain a separate list
of “penalties” or “punishments.” See, e.g., 18 U.S.C.
§ 43(b)(5) (“if the offense results in death of another
individual” language is listed in “penalties” section); 18
U.S.C.A. § 1030 (c)(4)(F) (“if the offender attempts to
cause or knowingly or recklessly causes death from
conduct in violation of subsection” language is included
in “punishments” section); 18 U.S.C.A. § 1091(b)(1)
(“where death results” language is included in “punish-
ments” section). It would be odd indeed for Congress
to habitually include “death resulting” types of increases
in portions of statutes labeled “penalties” or “punish-
ments” when in fact Congress intended for this factor
to be included as an element. By including the “if
death results” language in separate sections labeled
“penalties” Congress seems to have intended for courts
No. 09-1333 17
to consider the fact that a death has resulted as a sen-
tencing factor.
On the other hand, the O’Brien Court instructs that,
“[s]entencing factors traditionally involve characteristics
of the offender—such as recidivism, cooperation with
law enforcement, or acceptance of responsibility. Charac-
teristics of the offense itself are traditionally treated
as elements.” O’Brien, 130 S. Ct. at 2176. Causing the
death of another person certainly does not resemble a
characteristic of the offender. Often it is, in and of itself,
the crime of murder or manslaughter. This considera-
tion favors a finding of “element.”
In this particular case, the third and fourth factors—
considerations of fairness and the severity of the sen-
tence—merge. When we consider these issues, the pendu-
lum swings sharply in Krieger’s favor. The fact that a
death has resulted catapults a defendant’s minimum
sentence from zero to twenty years. In Harris, the Court
found that incremental changes in a minimum sen-
tence from five to seven to ten years are precisely the
types of increases one would expect to see when
Congress intended a judge to consider the conduct in
sentencing. Harris, 536 U.S. at 554. In contrast, in O’Brien
the Court was evaluating a factor that increased the
mandatory minimum sentence from five to thirty years
and noted that, “[t]his is not akin to the incremental
changes in the minimum that one would expect to see
in provisions meant to identify matters for the sentencing
judge’s consideration.” O’Brien, 130 S. Ct. at 2177 (citing
Harris, 536 U.S. at 554). Although it is true that Krieger
18 No. 09-1333
could have received twenty years even without the
finding of death resulting, this seems unlikely. For one
thing, the district court made clear that it found the
twenty-year sentence to be unreasonably harsh in light
of the facts of the case, and specifically stated that it
would have sentenced Krieger to 168 to 210 months.
(R. at 154, pp.10, 13). More compellingly, the average
length of incarceration for defendants convicted under
21 U.S.C. § 841 for distribution of fentanyl where death
has not resulted (and with a criminal history category
of I—as was the case with Krieger) was seven months 3 .
(Letter from Timothy Drisko, Research Data Co-
ordinator, Office of Research and Data, U.S. Sentencing
Comm’n to Deputy Circuit Librarian, Library of the
United States, on file with the Library for the United
States, 219 S. Dearborn, Chicago, IL.) The district court
also commented on the unfairness of the sentencing
regime, noting that although Krieger was convicted of
distribution of divers amounts of fentanyl, it seemed
obvious that she was being sentenced for homicide. (R.
at 154, p.10).
Certainly there are factors from the O’Brien and Harris
list that point us toward defining “death resulting” as an
element of the crime, but this court is hard pressed to
ignore the most important considerations: first, the
clear command of the language listing “death resulting” in
3
Average for fiscal year 2006-2009 and is based on cases
sentenced under the federal sentencing guidelines involving
any quantity of fentanyl and no other drugs.
No. 09-1333 19
the “penalties” section of the statute, and second, our
precedent (at least when considering drug quantity) of
defining the considerations in § 841(b) as sentencing
factors (so long as they do not increase the sentence
above the statutory maximum). This court, like the
district court, must conclude that “death resulting” is a
sentencing factor that need not be pleaded in the indict-
ment and tried before a jury, but rather could be found
by a judge using a preponderance of the evidence bur-
den. Because this fact was not pleaded in the indictment,
nor admitted by Krieger, the maximum offense Krieger
could have received was twenty years. See United States
v. Duvall, 272 F.3d 825, 830 (7th Cir. 2001) (“although
the failure to establish these facts beyond a reasonable
doubt limits the choice of maximum sentence under § 841,
it does not jeopardize the conviction”); Brough, 243 F.3d
at 1080 (“[A] post-Apprendi indictment should specify,
and the trier of fact must be instructed to determine,
not only the elements of the offense, which appear in
§ 841(a), but also the events listed in § 841(b) on which
the prosecutor relies to establish the maximum sen-
tence.”). The district court was also correct that once it
found, by a preponderance of the evidence, that death
had resulted when Krieger distributed the fentanyl, the
court was obliged to impose the mandatory minimum
sentence of twenty years. Roberson, 474 F.3d at 436 (“[I]n
making the sentencing guidelines advisory, the Court did
not authorize courts to sentence below the minimums
prescribed not by the guidelines but by constitutional
federal statutes.”); United States v. Miller, 450 F.3d 270, 275
(7th Cir. 2006) (“Booker does not permit district judges to
20 No. 09-1333
disregard mandatory minimum sentences or change the
treatment of recidivist offenders, all that Booker does is
specify the appropriate decision maker (the jury) and
the burden of persuasion (beyond a reasonable doubt)
for facts that affect statutory maximum penalties.”).
B.
Having followed the guidance of the Supreme Court in
McMillan, O’Brien, and Harris, it is worth pausing for a
moment to note the disagreement within the Supreme
Court regarding this approach and the precipice upon
which the McMillan holding stands. After all, what should
we make of a judicial approach that determines that
whether the fact that the firearm was a machine gun is
an element to be proved to the jury beyond a reasonable
doubt, (O’Brien), but whether the gun was brandished
is relevant conduct that can be determined by a judge
under the preponderance of the evidence standard (Har-
ris). See O’Brien, 130 S. Ct. at 2183, n.5. (Stevens, J., con-
curring) (“[Harris’] reading of the mandatory minimum
for ‘brandishing’ a firearm contained in 18 U.S.C.
§ 924(c)(1)(A) as a sentencing factor is not so easily dis-
tinguished from the nearly identical mandatory mini-
mum for possessing a ‘machinegun’ under § 924(c)(1)(B)”).
The thread by which McMillan hangs may be precari-
ously thin. In fact, at the time the Harris case was
decided, five Supreme Court justices—a majority—
believed that the holding in McMillan was inconsistent
with Apprendi. Four of those justices (Justices Stevens,
No. 09-1333 21
Souter, Thomas and Ginsburg) dissented in Harris on
the belief that
when a fact exposes a defendant to greater punish-
ment than what is otherwise legally prescribed, that
fact is by definition an elemen[t] of a separate legal
offense. Whether one raises the floor or raises the
ceiling it is impossible to dispute that the defendant
is exposed to greater punishment than is otherwise
prescribed.
Harris, 536 U.S. at 579 (Thomas, J., dissenting) (internal
citations omitted). A fifth justice, Justice Breyer, wrote
separately in Harris to note that he could not “easily
distinguish Apprendi from this case in terms of logic,” and
therefore could not “agree with the plurality’s opinion
insofar as it finds such a distinction.” Harris, 536 U.S. at
569 (Breyer, J., concurring). Justice Breyer, however,
concurred in the judgment because he maintained his
disagreement with the entire premise of Apprendi and
continued to “believe that the Sixth Amendment
permits judges to apply sentencing factors—whether
those factors lead to a sentence beyond the statutory
maximum (as in Apprendi) or the application of a manda-
tory minimum (as here).” 4 Id.
4
As Justice Stevens noted in his dissent in O’Brien, Justice
Breyer’s dedication to his position in Harris may be waning.
O’Brien, 130 S. Ct. at 2183, n.6. In oral argument in the O’Brien
case, Justice Breyer stated, “In Harris, I said that I thought
Apprendi does cover mandatory minimums, but I don’t accept
(continued...)
22 No. 09-1333
Of course, the composition of the Court has now
changed, but at one recent time a majority of the Court
believed that the holding of McMillan was inconsistent
with the holding in Apprendi. Four of those justices sub-
scribe to a much simpler proposition: any fact that in-
creases the prescribed range of penalties to which a
defendant is exposed must be submitted to a jury and
found beyond a reasonable doubt. Harris, 536 U.S. at
579 (Thomas, J., dissenting), O’Brien, 130 S. Ct. at 2182
(Stevens, J., concurring).
Under these Justices’ understanding of the law, a court
need not go through a lengthy analysis using the
five factors set forth in Harris or O’Brien or any other
machinations to determine whether a particular factor
constitutes an element of a crime or a sentencing factor.
If a fact becomes the basis for imposing or increasing
the punishment (or establishing or increasing the pros-
ecution’s entitlement), it must be contained in the indict-
ment and proved to a jury beyond a reasonable doubt.
Apprendi, 530 U.S. at 521 (Thomas, J., dissenting). It
matters not whether it is labeled a sentencing factor or an
element or whether it triggers punishment in excess of the
(...continued)
Apprendi. Well, at some point I guess I have to accept Apprendi,
because it’s the law and has been for some time. So if . . . if that
should become an issue about whether mandatory mini-
mums are treated like the maximums for Apprendi purposes,
should we reset the case for argument?” Transcript of Oral
Argument at 20, O’Brien, 130 S. Ct. 2169 (2010) (No. 08-1569)
(question by Breyer, J.).
No. 09-1333 23
statutory maximum or triggers a statutory minimum.
O’Brien, 130 S. Ct. at 2181-82 (Stevens, J., concurring), id. at
2184 (Thomas, J., concurring). In this case, the “death
resulting” fact unequivocally mandated the imposition
of a sentence more severe than the judge would have
had discretion to impose, and thus under this simplified
rule it should have been considered an element of the
crime. Indeed, by virtue of the intersection between
the statutory maximum and minimum terms, it
eliminated the court’s discretion altogether leaving the
court with no choices but to impose a sentence of
twenty years.
This circuit has also spoken of looking at effects
when evaluating the element/sentencing factor dilemma.
Speaking of 18 U.S.C. § 841(b) (and following the still
intact holding of McMillan as an appellate court must), our
court explained:
[T]he statute does not say who makes the findings
or which party bears what burden of persuasion.
Instead the law attaches effects to facts, leaving it to
the judiciary to sort out who determines the facts,
under what burden. It makes no constitutional dif-
ference whether a single subsection covers both ele-
ments and penalties, whether these are divided
across multiple subsections (as § 841 does), or even
whether they are scattered across multiple statutes
(see 18 U.S.C.§§ 924(a), 1963). Apprendi holds that the
due process clauses of the fifth and fourteenth amend-
ments make the jury the right decisionmaker
(unless the defendant elects a bench trial), and the
24 No. 09-1333
reasonable-doubt standard the proper burden, when
a fact raises the maximum lawful punishment.
How statutes are drafted, or implemented, to fulfill
that requirement is a subject to which the Constitu-
tion does not speak.
Brough, 243 F.3d at 1079.
Logically, there is no reason why this simple binary
rule should not also apply to mandatory minimums.
Whether labeled an element or a sentencing factor, if a
fact triggers a mandatory minimum, the expected punish-
ment will have increased and the government can
require the judge to impose a higher punishment than
she might have chosen otherwise. See Apprendi, 530 U.S.
at 521-22 (Thomas, J., dissenting).
In this respect, it is difficult to reconcile McMillan with
Apprendi. McMillan, however, has not been overruled.
And unless and until the Supreme Court explicitly over-
rules a case, we are bound by it. See Saban v. U.S. Dept.
of Labor, 509 F.3d 376, 378 (7th Cir. 2007). We are thus
obligated to follow the conclusion that increases in the
mandatory minimum need not be pleaded in the indict-
ment and proved to a jury—even when a fact increases
the minimum so far that the minimum and maximum
collide and leave the court with no discretion whatsoever.
This case well demonstrates what happens when the
principles of McMillan are pushed to their extreme.
Under current precedent, the district court was correct
in allowing the government to prove to the court at
sentencing, by a preponderance of the evidence, that
Curry’s death resulted from Krieger’s distribution of
No. 09-1333 25
fentanyl. It was also correct in calculating that the one
and only sentence Krieger could receive in light of that
finding was twenty years’ incarceration.
C.
Krieger argues, however, that even under this relaxed
burden, the court erred when it determined that the
government had presented sufficient and reliable evi-
dence to establish by a preponderance of the evidence
that Curry’s death resulted from the fentanyl. The error
must be clear for us to overturn a sentencing court’s
factual findings. United States v. Krumwiede, 599 F.3d 785,
788 (7th Cir. 2010).
The “death resulting” evidence was muddled and slim.
Krieger presented evidence that the investigators and
doctor performing the autopsy focused exclusively or
primarily on the fentanyl evidence while ignoring evi-
dence related to the many other drugs in Curry’s sys-
tem. Moreoever, the doctor who performed Curry’s
autopsy was a tax cheat, a scofflaw, and had been disci-
plined for entering into a sexual relationship with a
patient to whom he illegally supplied prescription med-
ication. Nevertheless, after evaluating his demeanor on
the stand and his evidentiary presentation, the district
court concluded that although his testimony about
his personal life was not credible, his testimony as to how
he conducted the autopsy and how he arrived at his
conclusion as to the cause of Curry’s death was
indeed credible. (R. at 154, pp.6-7). This factual finding
regarding demeanor and credibility cannot be over-
26 No. 09-1333
turned unless we find that Heidingsfelder was in-
credible as a matter of law. United States v. Carraway,
612 F.3d 642, 645 (7th Cir. 2010) (noting the “ultra-narrow
review” of the trier of fact’s credibility determinations
based on the witness’s demeanor). We do not. After
performing the usual internal and external examina-
tions, Heidingsfelder collected blood and vitreous fluid
samples from Curry and sent them to a private and
reputable laboratory in Indianapolis. That lab reported
fentanyl in Curry’s blood in the toxic to lethal range.
Heidingsfelder found no external traumatic injuries
and noted physical findings consistent with a drug over-
dose. Although Heidingsfelder noted needle marks
on Curry’s left elbow, and the lab report indicated the
presence of several other drugs in Curry’s system,
Heidingsfelder testified that in his opinion, based on
the facts known about her death, his examination of her
body, and the lab report, Curry’s death was caused
by fentanyl toxicity, and not by the other drugs found
in her system either taken alone or in combination.
The government, likely because it recognized the prob-
lems with its main witness, Dr. Heidingsfelder, called
three other experts: Dr. Mark LeVaugh, a physician
specializing in forensic pathology, Dr. Michael Evans, a
forensic toxicologist, and Dr. Cynthia Morris-Kukoski, a
forensic toxicologist employed by the FBI lab. All
bolstered Heidingsfelder’s finding of a toxic to lethal
level of fentanyl.
Krieger called Long, a forensic toxicologist. Long criti-
cized Heidingsfelder for failing to test needle marks
No. 09-1333 27
on Curry’s body, for his choice of location to draw
blood, and for recording an incorrect time of death,
among other things. He also questioned whether blood
samples had been mishandled or placed in vials with
the incorrect preservative. Finally he maintained that
the reports from the lab used by Heidingsfelder and
the FBI laboratory reports were either incomplete or
inconsistent with each other. He questioned whether
the failure to investigate and follow up on other possible
causes of death resulted in an incorrect determination
of the cause of death. Nevertheless, he admitted that
the lab reports showed the presence of fentanyl in
Curry’s system in amounts that were four times the
therapeutic range and thus potentially lethal.
The police chief in charge of the investigation
admitted to inadequate police work in some areas.
Officers failed to collect into evidence and send for
testing two red capsules in Curry’s bedroom. The
syringe was not tested until three years after Curry’s
death, but then was found to contain trace amounts of
cocaine.
The district court took these failings into account, but
nevertheless found that it was more likely than not that
the fentanyl patch provided by Krieger caused Curry’s
death. The judge appropriately considered and weighed
all of the evidence, and we can find no clear error.
As a final matter, Krieger argues in a supplemental
filing that the district court erred when it held that the
“if death results” language “imposes no requirement of
causation.” See R. at 154, p.12. In a recent opinion, this
28 No. 09-1333
court has stated that in determining whether “death
results from” distribution of a drug under 21 U.S.C.
§ 841(b)(1)(C), the government must prove at a minimum
“but for” causation—that is, that the death or injury
would not have occurred had the drugs not been in-
gested. United States v. Hatfield, 591 F.3d 945, 948 (7th
Cir. 2010). Beyond that minimum causation, the court
said, it is not clear what “results from” might mean. Id. at
948-49. Elaborating on the term in a jury instruction,
the court concluded, most likely makes it more rather
than less clear. Id. at 949-50. It is true, therefore, that the
district court was incorrect when it said “death results”
imposes no requirement of causation. But despite what
the court said about causation, its actions indicate that it
did indeed consider causation. After reviewing the evi-
dence, the court stated, “the Court finds that the evidence
presented . . . support[s], by a preponderance of the
evidence, Dr. Heidingsfelder’s conclusion that fentanyl
toxicity was the cause of Ms. Curry’s death.” R. at 154,
p.7. And in conclusion the court held, “[h]aving weighed
all of the evidence presented, the Court finds that the
Government has established that it is more probable
than not that Ms. Krieger’s distribution of fentanyl to
Ms. Curry resulted in Ms. Curry’s death.” Id. at p.8.
The district court properly considered, therefore,
whether Curry’s death would not have occurred but for
the ingestion of the fentanyl.
In sum, under current Supreme Court precedent, the
government was not required to include in the indict-
ment the fact that death resulted from the distribution
of fentanyl. This fact could be determined by the sen-
No. 09-1333 29
tencing court using a preponderance of the evidence
standard, provided that Krieger’s maximum sentence
did not surpass the statutory maximum for distribution
of fentanyl without death resulting. Having so deter-
mined, the district court did not err in finding that the
government proved that Curry’s death resulted from
Krieger’s distribution of fentanyl. The decision of the
district court is A FFIRMED.
12-7-10