Case: 10-50567 Document: 00511746280 Page: 1 Date Filed: 02/02/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 2, 2012
No. 10-50567 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff - Appellee
v.
MARA LEE GREENOUGH,
Defendent - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before GARZA, CLEMENT, and SOUTHWICK, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
Mara Lee Greenough pled guilty to two counts of possession with intent
to distribute heroin in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). Her Pre-
Sentence Report (“PSR”) indicated that some of the heroin sold by Greenough
caused the death of Richard Reitz. Because of this death, the PSR calculated
Greenough’s Guidelines sentence under United States Sentencing Guidelines
§ 2D1.1(a)(2). She was sentenced to 240 months imprisonment for each count,
to be served concurrently. Greenough appeals her sentence on three grounds:
(1) the district court violated Apprendi by enhancing her sentence for the death
which was not part of her plea; (2) the district court erred in applying U.S.S.G.
§ 2D1.1(a)(2) because the death was not part of the crime to which she pled; and
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(3) the evidence was insufficient to establish that Reitz died from the heroin
obtained from Greenough. We AFFIRM the ruling of the district court.
FACTS AND PROCEEDINGS
Mara Lee Greenough was indicted for two counts of possession with intent
to distribute a mixture or substance containing a detectable amount of heroin in
violation of 21 U.S.C. § 841(a)(1) & (b)(1)(C). Count one related to conduct
occurring on or about July 27, 2009, and count two related to conduct occurring
on or about October 22, 2009. Greenough pled guilty to both counts without a
plea agreement. She did not plead guilty to death or serious bodily injury
resulting from the use of these substances.1
On July 27, 2009, police found heroin and other controlled substances at
Greenough’s residence. On October 22, 2009, felony arrest warrants were
executed, heroin and other controlled substances were again discovered, and she
was arrested and released on bond. Upon her release, Greenough continued
selling heroin. On November 20, 2009, Richard Reitz died at his home. He was
found with a syringe in his arm, a metal spoon with heroin residue was on the
table, and the medical examiner reported that Reitz died of multiple drug
intoxication.
At a subsequent search on November 20, 2009, officers found additional
controlled substances including heroin. Geenough was arrested again on
November 30, 2009. Greenough admitted selling drugs to individuals including
Reitz. She did not, however, admit to selling Reitz the specific drugs that
ultimately caused his death.
1
See PSR p. 1, “Offense: Counts One and Two: Possession with Intent to Distribute a
Controlled Substance; . . . Not more than 20 years imprisonment” cf. 21 U.S.C. § 841(b)(1)(C)
“such person shall be sentenced to a term of imprisonment of not more than 20 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 less than twenty years or more than life”)
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A friend of Reitz, Christopher Guerrero, reported that Greenough was
Reitz’s main supplier of heroin. He stated that he and Reitz obtained heroin
from Greenough until June of 2009 when Guerrero left Austin, but he believed
Reitz continued purchasing from Greenough. Guerrero knew Reitzhad once
purchased heroin from a Hispanic male whose supplier was also Greenough. In
August of 2009, Greenough saw Guerrero and gave him more heroin. Some time
after Guerrero left Austin, Reitz told him that Greenough had been “busted” by
the police. The agent who interviewed Guerrero, Michael Robert Hill, testified
that Guerrero “truly believed that Mara Greenough was the source of heroin for
Richard Reitz before he died.”
Based on Reitz’s death, Greenough’s PSR calculated a base offense level
of 38 under U.S.S.G. § 2D1.1(a)(2). The PSR applied a three-level downward
adjustment to 35 for acceptance of responsibility. Greenough’s criminal history
category was V. Because the applicable Guidelines range was 262-327 months
of imprisonment and the statutory maximum was 240 months for each count,
her Guidelines range of imprisonment was 240 months.
Greenough objected to the PSR, arguing she was not responsible for Reitz’s
death.2 She argued the government had not established beyond a reasonable
doubt that her heroin distribution was the cause of his death, which the medical
examiner reported to be from “multiple drug intoxication.” She asserted the
government had not presented evidence heroin was in Reitz’s system at the time
of his death, nor whether any heroin present chemically matched the heroin that
she possessed at her arrests. She also argued Guerrero’s statement failed to
establish she supplied Reitz with heroin after June 2009, but did establish that
Reitz had multiple suppliers of heroin. Greenough argued that the appropriate
2
The original PSR indicated that Greenough was responsible for another death. She
also objected to this finding and the probation officer removed it for lack of evidence.
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base offense level was 24, which would be reduced for acceptance of
responsibility and result in a total offense level of 21.
At sentencing, Greenough told the judge she did not know she was being
charged with a death when she pled guilty. Her sentencing memorandum
requested a downward departure based on her troubled background. She also
argued the evidence failed to establish beyond a reasonable doubt that she
supplied drugs to Reitz after June 2009, the autopsy showed Reitz died of
multiple drug toxicity and heroin was one of 17 drugs found in his system, and
there was no proof it was the same type of heroin seized from Greenough.
Lastly, she contended that application of the statutory enhancement under § 841
violated Apprendi v. New Jersey, 530 U.S. 466 (2000), as did any application of
a mandatory minimum.
Defense counsel contended Guerrero’s statements to agent Hill did not
prove Greenough sold Reitz drugs before his death in November 2009. Counsel
noted that the medical examiner’s report did not list heroin as the cause of
death, but rather multiple drugs, and that the type of heroin in Reitz’s system
was not analyzed. Greenough’s attorney also questioned agent Hill about
whether Reitz died from heroin. Hill responded “[b]ased on the evidence of the
medical examination and how they found the body, it’s an indication that he had
been using heroin.” Hill testified he did not see heroin listed in the toxicology
report.
The government argued the highest concentration of drugs were morphine
and monoacetylmorphine which are monikers for heroin. The government
claimed the toxicology report and medical examiner’s report showed these were
the drugs that caused or contributed to Reitz’s death. The medical examiner’s
report of multiple drug toxicity was admitted as an exhibit.
The district court overruled Greenough’s objection and found by a
preponderance of the evidence she had supplied the drugs to Reitz “that
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substantially contribute or contributed to his demise, to his death.” The court
sentenced Greenough to 240 months of imprisonment on each count, with the
sentences to run concurrently. This timely appeal followed.
STANDARD OF REVIEW
This court reviews sentences in two steps. “In reviewing the
reasonableness of a defendant’s sentence, we ‘must first ensure that the district
court committed no significant procedural error, such as failing to calculate (or
improperly calculating) the Guidelines range.’” United States v.
Hernandez-Galvan, 632 F.3d 192, 196 (5th Cir. 2011) (citing Gall v. United
States, 552 U.S. 38, 51 (2007)). “If the sentence is procedurally sound, we then
consider the ‘substantive reasonableness of the sentence imposed under an
abuse-of-discretion standard.” United States v. Delgado-Martinez, 564 F.3d 750,
751 (5th Cir. 2009). “In exercising this bifurcated review process, we continue
to review the district court’s application of the Guidelines de novo and its factual
findings for clear error.” Id.
DISCUSSION
A. Application of Apprendi
Greenough argues that the district court violated Apprendi because the
allegation of death was not charged in the indictment or proven to a jury beyond
a reasonable doubt. She contends this was a statutory enhancement under §
841(b)(1)(C) and argues that only the offense of conviction can trigger a
mandatory minimum sentence. The government argues Greenough incorrectly
assumes she received a statutory penalty enhancement due to the resulting
death.
The Supreme Court has held that “[o]ther 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.” Apprendi, 530 U.S. at 490. So long as the ultimate sentence
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remains within the statutory range, we have held Apprendi is not violated. See
United States v. Cathey, 259 F.3d 365, 368 n.12 (5th Cir. 2001). Thus, the
question is whether Greenough’s penalty was “beyond the prescribed statutory
maximum.” Apprendi, 530 U.S. at 490.
The district court did not sentence Greenough under the enhanced
statutory provisions in § 841(b)(1)(C) which provide for a mandatory minimum
sentence of 20 years and a maximum sentence of life “if death or serious bodily
injury results from the use of such substance.” Instead, the court’s Statement
of Reasons said Greenough’s offense did not carry a mandatory minimum
sentence indicating that she was sentenced under the general provisions of the
subsection which provide for a maximum sentence of 20 years of imprisonment.3
Greenough was not subject to a mandatory minimum sentence, but rather a
statutory maximum. Because the 240 month sentence was not beyond the
statutory maximum, we hold that Apprendi was not violated and affirm
Greenough’s sentence.
B. Interpretation of U.S.S.G. § 2D1.1(a)(2)
Greenough’s indictment alleged two counts of possession with intent to
distribute heroin. She argues that the district court erred by applying U.S.S.G.
§ 2D1.1(a)(2), which provides a base level offense of 38 if the defendant is
convicted under 21 U.S.C. § 841(b)(1)(C) “and the offense of conviction
establishes that death or serious bodily injury resulted from the use of the
substance.” U.S.S.G. § 2D1.1(a)(2). She claims her “offense of conviction” was
possession with intent to distribute which, standing alone, was not established
as the cause of Reitz’s death. The Guidelines, she notes, define “offense” as the
3
Greenough’s sentence was enhanced under the Sentencing Guidelines § 2D1.1(a)(2),
but always remained within the statutory maximum.
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offense of conviction and all relevant conduct; she contends the district court
erred by defining her “offense of conviction” too broadly.4
In response, the government claims that conduct surrounding the charged
offense may be considered under the Sentencing Guidelines regardless of
whether such conduct and consequences were explicitly included in the
indictment. The government further contends that Greenough did not raise this
argument below.
We must answer two questions. First, does U.S.S.G. § 2D1.1(a)(2) apply
when the indictment does not charge resulting death or serious bodily injury?
Second, did Greenough properly raise her objections to the application of
U.S.S.G. § 2D1.1(a)(2) at sentencing?
1. Meaning of the Sentencing Guideline
Greenough pled guilty to violating 21 U.S.C. § 841(a)(1) and (b)(1)(C)
which make it illegal to “manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense a controlled substance.”
§ 841(a)(1). Greenough’s PSR applied U.S.S.G. § 2D1.1(a)(2) which provides for
a higher Guidelines range when an individual is convicted under Section
841(b)(1)(C) “and the offense of conviction establishes that death or serious
bodily injury resulted from the use of the substance.” Similar to her argument
under Apprendi, Greenough alleges that it was error to apply the higher
Sentencing Guideline for death resulting in the absence of an indictment
alleging death. The government counters that the Sentencing Guidelines permit
a judge to consider all relevant conduct and outcomes in determining the proper
sentence regardless of the wording in the indictment. The government further
argues that evidence of death allegedly caused by a heroin overdose was relevant
to the Guideline adjustment under § 2D1.1. See U.S.S.G. § 1B1.4 (“[i]n
4
Greenough cites United States v. Bradford, 499 F.3d 910, 918-19 (8th Cir. 2007), and
United States v. Pressler, 256 F.3d 144, 157-58 n.7 (3d Cir. 2001), to support her contention.
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determining the sentence to impose within the Guideline range, or whether a
departure from the guidelines is warranted, the court may consider, without
limitation, any information concerning the background, character and conduct
of the defendant, unless otherwise prohibited by law”). The question for this
court is whether U.S.S.G. § 2D1.1(a)(2) permits relevant conduct not intrinsic to
the offense of conviction to be considered by the sentencing court in calculating
the Guidelines level.
This court has not previously addressed the meaning of the phrase “the
offense of conviction establishes” in § 2D1.1(a)(2), but has recognized other
circuits’ attempts to clarify the phrase’s meaning. See Carbajal, 290 F.3d at 284
n.9. Relying on application note 1 to U.S.S.G. § 1B1.1, which defines “offense”
as the offense of conviction and all relevant conduct, the Third Circuit has held
that the definition of “‘offense of conviction’ is narrower than ‘offense.’” Pressler,
256 F.3d at 157 n.7. While this conclusion was in dicta, the Third Circuit more
recently cited Pressler for the proposition that the phrase “‘offense of conviction’
includes only the substantive crime for which a particular defendant was
convicted.” United States v. Aquino, 555 F.3d 124, 129 (3d Cir. 2009). The Tenth
Circuit has read this phrase in a similarly narrow fashion. See United States v.
Blackwell, 323 F.3d 1256, 1260 (10th Cir. 2003). Other circuits, however, have
sentenced individuals in a manner that would imply a broader interpretation of
the phrase. See United States v. Shah, 453 F.3d 520 (D.C. Cir. 2006) (holding
that a “death resulting” Sentencing Guideline may be applied to an individual
who pled guilty to conspiracy to import, distribute, and possess with intent to
distribute heroin when one of his drug courriers died from ingesting the heroin
to smuggle it and the written plea agreement conceded the death); United States
v. Rodriguez, 279 F.3d 947, 951 (11th Cir. 2002) (when the plea agreement
admits selling drugs, concedes a purchaser died with the drugs in his system,
but the defendant questions whether an intervening cause breaks the chain of
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causation, it was not clear error to apply § 2D1.1(a)(2)); United States v. Deeks,
303 F. App’x 507, 509 (9th Cir. 2008) (applying § 2D1.1(a)(2) to enhance a drug
importation charge when a customer died using the cocaine); see also United
States v. Bradford, 499 F.3d 910, 919 (8th Cir. 2007) (while § 2D1.1(a)(2) did not
figure into the determination of Bradford’s base offense level, the court is
permitted to consider uncharged relevant conduct to justify a departure from the
Sentencing Guidelines when an individual pleads guilty to conspiracy to
distribute heroin and a buyer dies from the heroin distributed).
“Our interpretation of the Sentencing Guidelines is subject to the ordinary
rules of statutory construction.” Carbajal, 290 F.3d at 283. Thus, we first
analyze the text of the Guideline. § 2D1.1 does not define “offense of conviction,”
but § 1B1.2(a) provides guidance on the phrase’s meaning.
Determine the offense guideline section in Chapter Two (Offense
Conduct) applicable to the offense of conviction (i.e., the offense
conduct charged in the count of the indictment or information of
which the defendant was convicted). However, in the case of a plea
agreement (written or made orally on the record) containing a
stipulation that specifically establishes a more serious offense than
the offense of conviction, determine the offense guideline section in
Chapter Two applicable to the stipulated offense.
U.S.S.G. § 1B1.2(a) (emphasis added). The commentary background to § 2D1.1
further explains “[t]he base offense levels in § 2D1.1 are either provided directly
by the Anti-Drug Abuse Act of 1986 or are proportional to the levels established
by statute, and apply to all unlawful trafficking.”
U.S.S.G. § 2D1.1 applies to drug convictions under 21 U.S.C.
§§ 841(b)(1)(A)-(C) and 960 (b)(1)-(3). Greenough pled guilty to violating
§ 841(b) which contains a decision tree prescribing statutory penalties.
In the case of a controlled substance in schedule I or II, gamma
hydroxybutyric acid . . . or 1 gram of flunitrazepam, . . . such person
shall be sentenced to a term of imprisonment of not more than 20
years and if death or serious bodily injury results from the use of
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such substance shall be sentenced to a term of imprisonment of not
less than twenty years or more than life, a fine not to exceed the
greater of that authorized in accordance with the provisions of title
18 or $1,000,000 if the defendant is an individual
or $5,000,000 if the defendant is other than an individual, or both.
21 U.S.C. § 841(b)(1)(C). Under the statute, the first determination is the
quantity of drugs which are tied to specific minimum and maximum penalties.
§ 841(b). The second determination triggers a higher penalty if “death or
serious bodily injury results from the use of such substance.” § 841(b)(1)(A)–(C),
(E). Subsection 841(b)(1)(C) specifically provides a statutory maximum of 20
years if death does not result, but a statutory minimum of 20 years and
maximum of life if death results.
The Ninth Circuit has recognized that § 2D1.1(a)(2) follows a similar
pattern. See Deeks 303 F. App’x at 509 (citing United States v. Houston, 406
F.3d 1121, 1122-24 (9th Cir. 2005), as a model for interpreting § 2D1.1(a)(2)
because it interprets 21 U.S.C. § 841(b)(1)(C) “which contains language nearly
identical to U.S.S.G. § 2D1.1(a)(2)”). The Sentencing Guidelines instruct that
the base offense level should be the greatest level specified in the Drug Quantity
Table, § 2D1.1(a)(5), or a higher amount if “the offense of conviction establishes
that death or serious bodily injury resulted from the use of the substance.”
U.S.S.G. § 2D1.1(a)(2). The similarities between the language indicate that the
offense level was intended to mirror the criminal statute. We now hold that
U.S.S.G. § 2D1.1(a)(2) applies only when the second prong of the statute, i.e. that
death or serious bodily injury results, is also part of the crime of conviction.
Greenough pled guilty only to possession with intent to distribute under
§ 841(b) without the statutory enhancement for resulting death or serious bodily
injury. Further, the Statement of Reasons clearly stated that her statutory
maximum sentence was 20 years, the maximum if resulting death was not
charged under § 841(b)(1)(C). Thus, her “offense of conviction” does not
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“establish[] that death or serious bodily injury resulted from the use of the
substance” and § 2D1.1(a)(2) should not have applied to Greenough.
2. Plain Error
Even though we hold that U.S.S.G. § 2D1.1(a)(2) should not have applied
to Greenough because her indictment did not address, and she therefore did not
plead guilty to, Reitz’s death, she did not object to its application at sentencing,
and only now raises the objection on appeal. At sentencing, Greenough and her
attorney both objected to the evidence connecting Reitz’s death to Greenough’s
heroin distribution.5 However, Greenough never objected to the application of
U.S.S.G. § 2D1.1(a)(2) at sentencing. Because she failed to raise this objection
at sentencing, we review the application for plain error. Puckett v. United States,
556 U.S. 129, 129 S. Ct. 1423, 1428-29 (2009). Plain error review examines
whether there was (1) an error, (2) that was “clear or obvious, rather than
subject to reasonable dispute,” and (3) that “affected the appellant’s substantial
rights.” Id. at 1429. If all three prongs are satisfied, this court “has the
discretion to remedy the error–discretion which ought to be exercised only if the
error seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” Id. (internal quotation marks omitted).
Although it was error to apply § 2D1.1(a)(2) when Greenough’s offense of
conviction did not establish that death resulted, she cannot show the error rises
to the high threshold of plain error. The error was subject to reasonable dispute.
The district court considered sentences upheld by other circuits which applied
§ 2D1.1(a)(2) in the absence of an explicit statement in the indictment that death
resulted including the D.C. Circuit’s opinion in Shah, the Eleventh Circuit’s
opinion in Rodriguez, and the Ninth Circuit’s ruling in Deeks, to support the
application of § 2D1.1(a)(2) to Greenough. The different holdings on
5
Discussed in Section C infra.
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§ 2D1.1(a)(2)’s application show the error was not “clear or obvious,” but “subject
to reasonable dispute.” Because Greenough cannot satisfy the second prong of
the plain error test, we do not find plain error.
C. Sufficiency of the Evidence
Because application of U.S.S.G. § 2D1.1(a)(2) was not plain error, we
examine whether the district court erred in finding there was sufficient evidence
to establish that Reitz died from heroin provided by Greenough. This question
concerns which facts the district judge could use to sentence Greenough, but
does not concern whether a specific Sentencing Guideline applies. Greenough
claims that sufficient questions exist as to the veracity of any allegation her
heroin was responsible for Reitz’s death. She contends there is little evidence
to establish both factual and proximate causation. Further, she alleges the
government failed to investigate alternative causes of death and did not prove
Reitz’s death was caused “solely” by Greenough’s heroin. The government
contends there was sufficient evidence to find Greenough provided the drugs
that caused Reitz’s death, including testimony that Greenough supplied heroin
to Reitz, his death was due to “multiple drug intoxication,” metabolized heroin
was found in his blood and urine, he was found with a fresh needle mark, and
there were syringes of heroin on his table.
We review factual findings by the district court for clear error. United
States v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). “There is no clear
error if the district court’s finding is plausible in light of the record as a whole.”
Id. In determining the facts relevant to the Guidelines, the district court must
find the facts by a preponderance of the evidence. See United States v. Stevens,
487 F.3d 232, 246 (5th Cir. 2007). “[T]he district court may consider any
information which bears ‘sufficient indicia of reliability to support its probable
accuracy,’ including hearsay evidence, without regard to admissibility under the
Federal Rules of Evidence which govern at trial.” See United States v. Solis, 299
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F.3d 420, 455 (5th Cir. 2002) (citation omitted). “[A] district court may adopt the
facts contained in a PSR without further inquiry if those facts have an adequate
evidentiary basis with sufficient indicia of reliability and the defendant does not
present rebuttal evidence or otherwise demonstrate that the information in the
PSR is unreliable.” United States v. Cabrera, 288 F.3d 163, 173-74 (5th Cir.
2002); see Solis, 299 F.3d at 455 (holding that the defendant bears the burden
of rebutting the evidence used against him at sentencing and that merely
objecting to the evidence is insufficient to rebut it). Finally, we have held
Ҥ 2D1.1(a)(2) is a strict liability provision that applies without regard for
common law principles of proximate cause or reasonable foreseeability.”
Carbajal, 290 F.3d at 283. The question is thus whether the PSR was
sufficiently reliable to show that Reitz’s death was caused by Greenough’s
heroin.
At sentencing, the district judge adopted the PSR with minor
modifications. The district court imposed a sentence within the Guidelines
range and at the statutory maximum. The evidence in the PSR was sufficient
to show Greenough supplied the heroin that caused Reitz’s death. Her
arguments raise legitimate questions about the strength of the evidence, but do
not show that the information in the PSR “cannot be relied on because it is
materially untrue, inaccurate, or unreliable.” Londono, 285 F.3d at 354.
Greenough admits to selling Reitz drugs and using drugs with him. She only
alleges that there is doubt whether her heroin was the heroin in Reitz’s system
when he died. Because the death resulting enhancement is imposed with strict
liability, Greenough has not proffered sufficient evidence to show the link
between her drugs and Reitz’s death is inaccurate or unreliable, and she cannot
show the PSR is based on factual errors, we affirm the finding that there was
sufficient evidence Greenough’s drugs caused Reitz’s death.
CONCLUSION
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For the foregoing reasons, we AFFIRM the ruling of the district court.
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