NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued September 22, 2011
Decided December 27, 2011
Before
Hon. William J. Bauer, Circuit Judge
Hon. Daniel A. Manion, Circuit Judge
Hon. Michael S. Kanne, Circuit Judge
No. 11‐1820 Appeal from the United States District
Court for the Western District of
United States of America, Wisconsin
Plaintiff‐Appellee,
v. No. 10 CR 12
Richard Crayton, Barbara B. Crabb, Judge.
Defendant‐Appellant.
O R D E R
A jury convicted Richard Crayton of distribution of heroin, but failed to reach a
unanimous verdict on the special verdict question of whether Crayton’s distribution of
heroin resulted in the death of another person. At sentencing, the district court found
by a preponderance of the evidence that the heroin distributed by Crayton resulted in
the death of Nicole Hedges. Accordingly, the court imposed the mandatory minimum
sentence of twenty years’ incarceration pursuant to 21 U.S.C. § 841(b)(1)(C). On appeal,
Crayton challenges the court’s evidentiary ruling at trial concerning the admissibility of
certain hearsay statements and the court’s twenty‐year sentence. We find no error in
No. 11‐1820 Page 2
either the court’s ruling on the admissibility of the hearsay statements or its enhanced
sentence, and therefore affirm.
I.
In April 2009, Kevin Krugel began a relationship with a young woman named
Nicole Hedges, whom he met at a substance abuse treatment center. On May 1, 2009,
Krugel and Hedges were discharged from the center for rules violations. Krugel then
contacted several people seeking heroin to cope with his withdrawal symptoms. The
next day, Dominic Becerra, a friend of Krugel’s, drove Krugel to Wausau, Wisconsin to
purchase heroin from Richard Crayton. Crayton sold one gram of heroin to Krugel, and
both Krugel and Becerra immediately used some of this heroin. They then drove to see
Hedges, who was staying at a shelter in Merrill, Wisconsin.
During their conversation, Hedges learned that Krugel had heroin, and she asked
to use some. Hedges snorted two lines of heroin and then went back to the shelter and
took a nap. Another resident of the shelter attempted to awaken her approximately one
hour later, but Hedges was unresponsive. Paramedics were called, and they
pronounced her dead at the scene. A forensic pathologist performed an autopsy and
determined that Hedges had died of heroin toxicity or overdose.
At trial, Crayton argued that while he did sell heroin to Krugel, he was not
responsible for Hedges’s death because Krugel provided the heroin to Hedges. Crayton
also argued that Krugel and Becerra had purchased heroin from a different source the
day before Krugel purchased heroin from Crayton, and that there were thus two
sources of heroin available that could have been given to Hedges. Crayton called
Becerra to testify on this matter, but Becerra claimed to have no recollection of any facts
relating to this case due to a subsequent fentanyl overdose.
Crayton sought to have Becerra declared unavailable pursuant to Federal Rule of
Evidence 804(b)(3). With Becerra unavailable, Crayton wanted to introduce into
evidence Becerra’s hearsay statement to police made on June 3, 2009, in which he stated
that he had used heroin with Krugel the day before they purchased heroin from
Crayton. The district court declared Becerra unavailable due to his lack of memory, but
concluded that Becerra’s statement to police was not admissible as a statement against
interest on the grounds that the statement was not trustworthy.
No. 11‐1820 Page 3
After the two‐day trial, the jury found Crayton guilty of distribution of heroin.
The jury failed to reach a unanimous verdict on the special jury question of whether
Crayton’s distribution of heroin resulted in the death of Nicole Hedges. The presentence
report concluded that, pursuant to U.S.S.G. § 2D1.1(a)(2), the government could prove
by a preponderance of the evidence that the heroin distributed by Crayton resulted in
the death of Hedges. At sentencing, the district court found by a preponderance of the
evidence that the heroin distributed by Crayton resulted in the death of Hedges, and it
imposed the mandatory minimum sentence of twenty years’ incarceration pursuant to
21 U.S.C. § 841(b)(1)(C). Crayton now appeals both the imposition of the maximum
sentence and the district court’s ruling that Becerra’s statement to police was
inadmissible.
II.
We review a district court’s decisions on the admission of evidence for abuse of
discretion. United States v. Jones, 600 F.3d 847, 853 (7th Cir. 2010). Issues of law
regarding increases in mandatory sentencing terms and burdens of proof are reviewed
de novo. United States v. Krieger, 628 F.3d 857, 862 (7th Cir. 2010).
We first consider the district court’s decision on the admissibility of Becerra’s
hearsay statement. Federal Rule of Evidence 804(b)(3) permits the admission of hearsay
statements if (1) the declarant is unavailable as a witness; (2) the statement was against
the declarant’s penal interest when made; and (3) corroborating circumstances clearly
suggest that the statement is trustworthy. Fed R. Evid. 804(b)(3); see also United States v.
Jackson, 540 F.3d 578, 588 (7th Cir. 2008). The burden rests on the proponent of the
hearsay statement to demonstrate that each element is satisfied. Id. Corroborating
circumstances must clearly indicate that the statement is trustworthy, or the statement
must be excluded. Id. at 589.
Neither party disputes that Becerra is unavailable (his lack of memory renders
him so), and his statement is clearly against his own penal interest (he admitted to
doing heroin to a police officer), but we will not disturb the district court’s finding that
Becerra’s statement is untrustworthy. As the district court noted, Becerra made
contradictory statements to police. Becerra first stated that he smoked heroin before
going with Krugel to purchase heroin from Crayton, but one week later he stated that
he and Krugel drove directly to Crayton’s to purchase heroin without having used any
No. 11‐1820 Page 4
heroin prior to his dismissal from the treatment center. Furthermore, the district court
concluded that Becerra’s statement to police was inconsistent with other evidence
presented at trial, including witness testimony. Krugel himself testified at trial that the
heroin he gave to Hedges was from the block of heroin he purchased from Crayton. In
light of these facts, we cannot say that corroborating evidence clearly shows that
Becerra’s statement was trustworthy; in fact, it shows the opposite, and thus there is no
error in the district court’s ruling.
We next consider whether the district court erred when it sentenced Crayton to a
mandatory minimum twenty‐year sentence. The Supreme Court has held that the Due
Process Clause of the Fifth Amendment mandates that “other 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 v. New Jersey, 530 U.S. 466, 490 (2000). However, the Supreme Court
later clarified that this holding does not apply to increases in mandatory minimum
penalties. Consequently, a statute can increase the minimum penalty for a crime when
a fact is found by a judge under a preponderance of the evidence standard. Krieger, 628
F.3d at 863 (citing McMillan v. Pennsylvania, 477 U.S. 79, 91 (1986)).1 We have
previously held that the “death resulting” enhancement under 21 U.S.C. § 841(b)(1)(C)
is a sentencing factor that can be found by a judge under a preponderance of the
evidence standard. Id. at 867.
Crayton attempts to distinguish his case from Krieger by arguing that the
government should not have two bites at the apple to prove that Hedges’s death
resulted from the heroin Crayton distributed. Specifically, he asserts that because the
government chose to charge the “death resulting” enhancement in the indictment and
present that question to the jury, it should be precluded from proving the enhancement
1
Krieger was under petition for a writ of certiorari to the Supreme Court, but the
Court recently declined to consider the case. Krieger v. U.S., — S. Ct. —, No. 10‐10392,
2011 WL 4530597 (cert. denied, Oct. 3, 2011). Thus, Krieger remains established law.
No. 11‐1820 Page 5
at sentencing.2 Crayton cites no law in support of this position, and his argument is
unavailing.
We have held that the sentencing judge may consider not only the conduct that
formed the basis of the underlying conviction, but also other “relevant conduct” in
determining a sentence. United States v. Anderson, 517 F.3d 953, 963 (7th Cir. 2008).
Such relevant conduct can include uncharged conduct and even conduct that formed
the basis of an acquittal, as long as the judge makes findings of fact under a
preponderance of the evidence standard. Id. Here, even though the jury could not
reach a unanimous verdict on the “death resulting” question, the district court was not
precluded from considering at sentencing whether Crayton’s distribution of heroin
resulted in the death of another individual. Based on the evidence presented and
witness testimony, the district court concluded by a preponderance of the evidence that
the heroin distributed by Crayton caused the death of Hedges. There was ample
evidence to support the district court’s finding, and accordingly the court did not err
when it applied the sentencing enhancement.
III.
While Becerra was unavailable and his statement was against his penal interest,
the district court did not abuse its discretion in concluding that his previous statement
to police was not reliable because of inconsistencies in those statements. Accordingly,
the district court did not err when it refused to admit Becerra’s hearsay statement. The
district court was also fully within its power to enhance the mandatory minimum
sentence for causing the death of another person based on the preponderance of the
evidence presented at trial. Thus, the district court did not err when it applied the
“death resulting” enhancement to Crayton’s sentence. We AFFIRM.
2
The government alleged a sentencing factor—the “death resulting”
enhancement—in the indictment, but did not thereby make it an element of the offense.
In its instructions to the jury, the district court treated the “death resulting”
enhancement as nothing more than a sentencing factor, not an individual element of the
distribution offense. It was simply a special verdict question, and was not part of the
jury instructions on the elements of the crime that needed to be established for a
conviction.