United States Court of Appeals For the First Circuit
No. 18-2187
UNITED STATES OF AMERICA,
Appellee,
v.
LUCAS HEINDENSTROM,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Lynch, Selya, and Barron, Circuit Judges.
Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant. Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.
December 30, 2019 SELYA, Circuit Judge. Defendant-appellant Lucas
Heindenstrom pleaded guilty to a single count charging him with
drug distribution in violation of 21 U.S.C. § 841(a)(1). The
district court, relying heavily on a finding that a death resulted
from the offense of conviction, imposed an above-the-range term of
immurement, justifying the sentence both as an upward departure
and an upward variance. Concluding that the sentence is
supportable when viewed as an upward variance, we affirm.
I. BACKGROUND
We start by rehearsing the relevant facts and travel of
the case. When — as in this case — an appeal trails in the wake
of a guilty plea, we normally "draw the facts from the change-of-
plea colloquy, the uncontested portions of the presentence
investigation report (PSI Report), and the transcript of the
disposition hearing." United States v. Narváez-Soto, 773 F.3d
282, 284 (1st Cir. 2014). Here, however, there is a wrinkle: the
district court conducted an evidentiary hearing as part of the
disposition hearing. Thus, we draw some additional facts from the
court's supportable findings following the evidentiary hearing.
See United States v. Caramadre, 807 F.3d 359, 369 (1st Cir. 2015).
On March 31, 2016, local police responded to an
unattended death in York, Maine. Officers determined that the
decedent, Kyle Gavin, had been dead for some time and found a
substance that contained fentanyl, an empty needle, a metal spoon,
- 2 - and other drug paraphernalia near his body. The officers then
spoke with Gavin's roommates and learned that Gavin, an Army
veteran, had met a friend named "Lucas" on the night he died and
had given Lucas money.
The officers contacted the federal Drug Enforcement
Administration (DEA). The DEA discovered a series of text messages
between Gavin and the appellant, sent on the night that Gavin died.
Toward the end of this exchange, Gavin indicated that the drugs
the appellant had sold him tasted like "sugar." The appellant
responded by assuring Gavin that the drugs were "good" and
suggesting that the sweet taste came from fentanyl.
The next day, the DEA used Gavin's cellphone to set up
a heroin purchase with the appellant and arrested him when he
arrived. After waiving his Miranda rights, see Miranda v. Arizona,
384 U.S. 436, 444-45 (1966), the appellant admitted that he had
sold a gram of heroin to Gavin on March 30.
Subsequent investigation revealed that the substance
trafficked by the appellant contained fentanyl, and the text-
message exchange indicated that the appellant was aware of the
presence of fentanyl. The appellant admitted that he had procured
heroin for Gavin on two or three earlier occasions.
A toxicology report indicated that there were 121 mg/dL
of ethanol, 120 mg/dL of methanol, and 5.7 ng/mL of fentanyl in
Gavin's system. These revelations were consistent with the report
- 3 - of the medical examiner, who determined that the cause of Gavin's
death was "[a]cute intoxication" from the "combined effects of
ethanol, methanol and fentanyl."
In due course, a federal grand jury sitting in the
District of Maine charged the appellant with distribution of a
substance or mixture containing fentanyl. After some
preliminaries, not relevant here, the appellant pleaded guilty to
the single count of the indictment. Following receipt of the PSI
Report, the district court conducted an evidentiary hearing as a
subset of the disposition hearing.
During the evidentiary hearing, Jonathan L. Arden, M.D.,
testified on the appellant's behalf. Dr. Arden discussed each of
the substances found in Gavin's system and their contributions to
Gavin's death. His opinion was that ethanol, methanol, and
fentanyl "all . . . played a meaningful role" in Gavin's death,
that is, all of them were "contributory." But Dr. Arden could not
identify any one among the three toxins as "the sole cause" of
death. He explained that the levels of both methanol and fentanyl
found in Gavin's system independently could be fatal, but there
was no reliable way to separate their effects.
After hearing Dr. Arden's testimony, the sentencing
court reviewed an array of statutory and guideline provisions.
Pertinently, the court pointed out that the government had not
charged the appellant under 21 U.S.C. § 841(b)(1)(C) (which carries
- 4 - a mandatory minimum sentence of twenty years if a defendant
distributes a drug and death results). Nor did the government
invoke USSG §2D1.1(a)(2) (which sets a higher offense level when
"the offense of conviction establishes that death . . . resulted
from the use of the substance"). At the government's urging, the
court then examined the applicability of USSG §5K2.1 (which
authorizes an upward departure "[i]f death resulted" from an
offense of conviction). The government argued that strict but-
for causation was not a prerequisite for the application of section
5K2.1, while the appellant, citing Burrage v. United States, 134
S. Ct. 881 (2014), insisted that strict but-for causation was
needed.
After weighing the evidence, the sentencing court made
several factual findings. Importantly, the court found that the
appellant had furnished the fentanyl discovered in Gavin's system;
that the appellant knew that the substance he gave to Gavin
contained fentanyl; and that Gavin's death was caused by the
combined effects of the three toxins discovered in his system post-
mortem (ethanol, methanol, and fentanyl). The court recognized
that the amount of fentanyl in Gavin's system was possibly an
independent cause of death, but it found that the government had
not proven this fact by a preponderance of the evidence.
Similarly, the court recognized that the amount of methanol in
Gavin's system might have been an independent cause of death. Once
- 5 - again, though, the court eschewed any more specific finding
regarding the likelihood that methanol was the independent cause
of death. Finally, the court determined that although fentanyl
was a contributing factor in Gavin's death, it was not a strict
but-for cause as it was "impossible to say" whether Gavin would
have lived but for the ingestion of fentanyl.
Against the backdrop of these factual findings, the
court rejected the appellant's argument that an upward departure
under section 5K2.1 demands strict but-for causation. The court
concluded instead that the offense conduct only needs to be a
meaningful, contributing cause of death. The court proceeded to
calculate the guideline sentencing range (GSR), which it found
without objection to be eight to fourteen months. The government
recommended a sentence of up to ninety-six months, and the
appellant argued for a sentence of thirty months.1 The court
advised the parties that it had considered the nature and
circumstances of the offense, as well as the appellant's history
and characteristics.
This brought matters to a head: finding the GSR
"woefully insufficient," the court determined that an upward
departure was warranted under section 5K2.1. The court further
found that forty-six months was the proper extent of the upward
1A thirty-month sentence, though substantially above the GSR, would have been roughly equivalent to time served.
- 6 - departure and proceeded to impose a sixty-month incarcerative
sentence. The court stated explicitly, though, that if an upward
departure were deemed inappropriate, it would nonetheless "have
given [the same sentence] as an upward variance." In the court's
view, the very same factors that supported an upward departure
also supported an upward variance.
This timely appeal ensued.
II. ANALYSIS
Appellate review of claimed sentencing errors involves
a "two-step pavane." United States v. Matos-de-Jesús, 856 F.3d
174, 177 (1st Cir. 2017); see United States v. Martin, 520 F.3d
87, 92 (1st Cir. 2008). To begin, we examine any allegations of
procedural error. See United States v. Flores-Machicote, 706 F.3d
16, 20 (1st Cir. 2013); Martin, 520 F.3d at 92. If the sentence
passes procedural muster, we then examine any allegation that it
is not substantively reasonable. See Flores-Machicote, 706 F.3d
at 20; Martin, 520 F.3d at 92. Here, the appellant assails his
sixty-month sentence both procedurally and substantively. We
address his claims of error sequentially.
A.
Before launching our inquiry into the appellant's claims
of error, a threshold matter looms. As said, the district court
couched its sentence both as an upward departure and as an upward
variance. Viewed solely as an upward departure, the validity of
- 7 - the sentence is a close question. The departure provision relied
upon by the district court, USSG §5K2.1, authorizes an upward
departure "[i]f death resulted" from the offense conduct. Because
a departure can only be imposed pursuant to "the framework set out
in the Guidelines," United States v. Rodríguez-Reyes, 925 F.3d
558, 567 (1st Cir.) (quoting United States v. Aponte-Vellón, 754
F.3d 89, 93 (1st Cir. 2014)), cert. denied, 140 S. Ct. 193 (2019),
a departure sentence must satisfy whatever criteria the particular
departure guideline entails.
Under the departure guideline invoked by the district
court, it is necessary to determine the dimensions of the "death
resulted" phraseology. In probing those dimensions, we would need
to ask what the Sentencing Commission meant when it used that
phrase in section 5K2.1. This inquiry would include establishing
what standard of causation the Sentencing Commission purposed to
require for determining whether death "resulted" from a
defendant's conduct. See, e.g., United States v. Rivera-Berríos,
902 F.3d 20, 24-25 (1st Cir. 2018); United States v. Colby, 882
F.3d 267, 271-72 (1st Cir.), cert. denied, 138 S. Ct. 2664 (2018).
The appellant asserts that "death resulted," as used in
section 5K2.1, requires strict but-for causation linking the
offense conduct to Gavin's death. In support, he points out that
the Supreme Court required such a causal link in Burrage with
respect to an almost identically worded sentencing enhancement
- 8 - provision. To be specific, the Burrage Court held that 21 U.S.C.
§ 841(b)(1)(C)'s penalty-enhancement provision for death resulting
from a distributed drug demands proof of strict but-for causation,
that is, proof that the drug was "the straw that broke the camel's
back," "at least where use of the drug distributed by the defendant
is not an independently sufficient cause of the victim's death."
134 S. Ct. at 888, 892. The government counters that the less
stringent type of causation found sufficient in United States v.
Pacheco, 489 F.3d 40 (1st Cir. 2007), a pre-Burrage case, is all
that is required to trigger a section 5K2.1 departure. There, we
interpreted a "sister" provision of section 5K2.1 (section 5K2.2),
which authorizes an upward departure "[i]f significant physical
injury resulted" from the offense conduct. Id. at 46-47. We
concluded that so long as a drug "played a meaningful role" in
causing injuries, regardless of whether that drug was the "sole"
or "direct" cause of those injuries, an upward departure under
section 5K2.2 was permissible. Id. at 47.
The sentencing court sided with the government.
Although it agreed that the government had not proven strict but-
for causation, the court nonetheless concluded that Pacheco was
"more germane" for present purposes. Accordingly, the court held
that departing under section 5K2.1 was permissible because the
drugs distributed by the appellant were a contributing and
meaningful cause of Gavin's death.
- 9 - Whether there is an inherent tension (or even an
irreconcilable conflict) between the holdings of Burrage and
Pacheco is an interesting question. In the end, however, it
presents a conundrum that we need not resolve today. See Privitera
v. Curran (In re Curran), 855 F.3d 19, 22 (1st Cir. 2017)
(explaining that "courts should not rush to decide unsettled issues
when the exigencies of a particular case do not require such
definitive measures"). Because the district court made pellucid
that it would have imposed the same sixty-month sentence as an
upward variance and because (as we explain below) the sentence is
fully supportable as an upward variance, we need not inquire into
the bona fides of the upward departure. Even if the sentencing
court's section 5K2.1 departure was improvident, any error in
invoking a departure guideline is harmless where, as here, the
district court would have imposed exactly the same sentence by
means of a variance. See Aponte-Vellón, 754 F.3d at 93. We turn,
then, to whether the sentencing court committed procedural error
in relying upon the association between the offense conduct and
Gavin's death as a factor in constructing its upwardly variant
sentence.
B.
A variant sentence, unlike a departure, is not hemmed in
by the language of a particular guideline. Instead, it is a
product of the sentencing court's weighing of the myriad factors
- 10 - enumerated in 18 U.S.C. § 3553(a). See Rodríguez-Reyes, 925 F.3d
at 567; Aponte-Vellón, 754 F.3d at 93. As a general matter, a
sentencing court is free to use any relevant factor, reliably
proven, as a basis for varying up or down from the guideline range.
See Matos-de-Jesús, 856 F.3d at 178; United States v. Díaz-Arroyo,
797 F.3d 125, 130 n.3 (1st Cir. 2015); cf. Koon v. United States,
518 U.S. 81, 106 (1996) (observing that "Congress did not grant
federal courts authority to decide what sorts of sentencing
considerations are inappropriate in every circumstance"). With
this understanding, we focus the lens of our inquiry on whether
the challenged sentence, when evaluated as an upward variance, is
vulnerable to the appellant's claim of procedural error.
Our review is for abuse of discretion. The abuse-of-
discretion rubric is not monolithic. Under it, "we afford de novo
review to the interpretation and application of the sentencing
guidelines, evaluate the sentencing court's factfinding for clear
error, and assay its judgment calls for abuse of discretion."
United States v. Fernández-Garay, 788 F.3d 1, 3 (1st Cir. 2015).
In conducting this tamisage, we remain mindful of the respect that
we owe to fact-intensive sentencing determinations. See Martin,
520 F.3d at 92. We also remain mindful that a sentencing court
should strive to "custom-tailor an appropriate sentence" in every
case. Flores-Machicote, 706 F.3d at 20.
- 11 - When a sentencing court fashions a sentence that varies
from the GSR, the premise for such a variance ordinarily must "be
rooted either in the nature and circumstances of the offense or
the characteristics of the offender; must add up to a plausible
rationale; and must justify a variance of the magnitude in
question." Martin, 520 F.3d at 91. This does not mean, though,
that everything about a particular offense or offender can be given
weight in the sentencing calculus. See, e.g., USSG §5H1.10
(providing that race, sex, national origin, creed, religion, and
socioeconomic status "are not relevant" sentencing factors);
United States v. Vázquez-Méndez, 915 F.3d 85, 87-88 (1st Cir. 2019)
(explaining that a "court may not impose or lengthen a prison
sentence [primarily] in order to promote a defendant's
rehabilitation"). Other factors may be simply too remote or
tangential to warrant inclusion in the sentencing calculus. See
United States v. Roberson, 474 F.3d 432, 436 (7th Cir. 2007)
(noting that "the factors on which" district court relied were
"too attenuated" to justify sentence), abrogated on other grounds
by Dean v. United States, 137 S. Ct. 1170 (2017). The possibility
of overinclusiveness brings us to the heart of the appellant's
procedural plaint. He claims that the court erred by giving weight
to Gavin's death in constructing its upwardly variant sentence
because the death was not linked to the offense of conviction (the
appellant's drug sale) by a strict but-for causal chain. The
- 12 - appellant suggests that, without proof that the fentanyl-laced
substance was the strict but-for cause of the fatality, placing
Gavin's demise into the sentencing mix was unreasonable.
This suggestion lacks force. Congress has established
that, apart from relevance and reliability, "[n]o limitation shall
be placed on the information concerning the background, character,
and conduct of a person convicted of an offense which a court of
the United States may receive and consider for the purpose of
imposing an appropriate sentence." 18 U.S.C. § 3661; see United
States v. Viloria-Sepulveda, 921 F.3d 5, 9 (1st Cir. 2019). The
essence of this principle is captured in 18 U.S.C. § 3553(a), which
enumerates, albeit in general terms, a broad array of categories
of information that may be factored into the sentencing calculus.
Consistent with this principle, sentencing courts have
long considered "more than charged conduct in fashioning
sentences." United States v. Anonymous Defendant, 629 F.3d 68, 76
(1st Cir. 2010); see United States v. González-Rodríguez, 859 F.3d
134, 138-39 (1st Cir. 2017) (concluding on plain error review that
consideration of uncharged criminal conduct was not procedurally
unreasonable). Under this umbrella, a sentencing court may give
weight to the harm done by the defendant in the course of
committing the offense of conviction. See United States v. Lente,
759 F.3d 1149, 1164 (10th Cir. 2014); United States v. Scherrer,
444 F.3d 91, 92-94 (1st Cir. 2006) (en banc); see also Payne v.
- 13 - Tennessee, 501 U.S. 808, 825 (1991) ("Courts have always taken
into consideration the harm done by the defendant in imposing
sentence . . . .").
The short of it is that section 3553(a) broadly invites
a sentencing court to consider relevant and reliable information
concerning the offense of conviction. See, e.g., Matos-de-Jesús,
856 F.3d at 178; Díaz-Arroyo, 797 F.3d at 130 n.3. To this end,
the statute specifically directs the court to consider the "nature
and circumstances of the offense." 18 U.S.C. § 3553(a)(1).
Gavin's death was an important part of the manuscript of the crime
and, thus, was relevant to the question of punishment. Cf. United
States v. Severino-Pacheco, 911 F.3d 14, 17-22 (1st Cir. 2018)
(affirming upward variance partially based on dangerousness of
defendant's conduct). In addition, the court had before it a
surfeit of reliable and relevant information, including (among
other things) Gavin's death certificate, the medical examiner's
report, Dr. Arden's testimony, and the undisputed facts set out in
the PSI Report. This evidence amply chronicled the circumstances
of Gavin's death and tied that event to the offense of conviction.
Although the tie fell short of strict but-for causation,
no authority prohibits a sentencing court contemplating a variant
sentence from using harm as a factor in the absence of such
causation. Here, moreover, the causal connection between the
appellant's conduct and Gavin's death was far from remote. The
- 14 - court supportably found as a fact that the fentanyl, either by
itself or in combination with the other toxins in Gavin's system,
was a contributing cause of Gavin's death. That is to say, the
amount of fentanyl could have been independently fatal, and its
effect could not be separated from that of the other toxins.
Despite the absence of strict but-for causation, the district court
— on this record — did not abuse its discretion by considering in
its decision to impose an upward variance the fact that Gavin died
after using the fentanyl-laced substance knowingly sold to him by
the appellant. Consequently, we reject the appellant's claim of
procedural error.
C.
The appellant's remaining contention is that his sixty-
month sentence was substantively unreasonable. Specifically, he
contends that given the lack of a strict but-for causal connection
between his conduct and Gavin's death, imposing a sentence that
more than quadrupled the top of the GSR was excessive. In his
view, there was no "sound policy reason" for so draconian an upward
variance.
Preserved challenges to the substantive reasonableness
of a sentence are reviewed for abuse of discretion. See Matos-
de-Jesús, 856 F.3d at 179. When performing this review, "we cannot
desultorily substitute our judgment for that of the sentencing
court." Martin, 520 F.3d at 92. In the last analysis, "[t]here
- 15 - is no one reasonable sentence in any given case but, rather, a
universe of reasonable sentencing outcomes." United States v.
Clogston, 662 F.3d 588, 592 (1st Cir. 2011).
We afford "due deference to the district court's
decision that the § 3553(a) factors, on a whole, justify the extent
of the variance." Martin, 520 F.3d at 92 (quoting Gall v. United
States, 552 U.S. 38, 51 (2007)). This deference obtains even
where, as here, the extent of an upward variance is substantial.
See Flores-Machicote, 706 F.3d at 25. When all is said and done,
"[a] sentence is substantively reasonable so long as it rests on
a plausible sentencing rationale and exemplifies a defensible
result." United States v. Milán-Rodríguez, 819 F.3d 535, 540 (1st
Cir. 2016) (quoting Fernández-Garay, 788 F.3d at 6).
Here, the appellant asserts that his sentence was
substantively unreasonable because the evidence was "not
sufficient to establish a reliable or accurate link to" Gavin's
death. To the extent that this assertion merely repackages the
argument that the court could not consider Gavin's demise as a
sentencing factor without strict but-for causation, we already
have rejected it. And as we have pointed out, the sentencing court
supportably found that there was a meaningful causal link between
the appellant's conduct and Gavin's death. Absent an abuse of
discretion, we must defer to this finding. See Martin, 520 F.3d
- 16 - at 92. Based on the extensive causation evidence before the
district court, we discern no abuse of discretion here.
More generally, the sentencing court made plain that the
appellant's sentence was not dictated by any single factor but,
rather, by a collocation of factors. The court found, for example,
that the GSR did not come close to reflecting the seriousness of
the offense because it did not account for Gavin's death. See 18
U.S.C. § 3553(a)(2)(A); see also United States v. Bollinger, 893
F.3d 1123, 1125-27 (8th Cir. 2018) (concluding that sentence more
than ten times top of GSR was substantively reasonable when
trafficked heroin resulted in death). So, too, the court noted
that although the appellant did not intend to cause Gavin's death,
he was aware that the substance he sold to Gavin contained fentanyl
and, thus, he knew he was risking Gavin's life. Throughout, the
court stressed the grave consequences of the appellant's offense:
the tragic and premature death of a young veteran and how the
appellant's conduct played into the opioid epidemic ravaging the
community.
There was more. "Deterrence is widely recognized as an
important factor in the sentencing calculus." Flores-Machicote,
706 F.3d at 23; see 18 U.S.C. § 3553(a)(2)(B). Here, the court
supportably found that a within-the-range sentence would not serve
as an effective deterrent to other drug traffickers tempted to
turn a blind eye to the dangers of fentanyl. In the court's view,
- 17 - distributing a substance known to contain fentanyl was "extremely
dangerous" based on its potency and known lethality.
The sentencing court was correct to view the facts and
circumstances of the appellant's case holistically. See Martin,
520 F.3d at 91. Taken collectively, the court's stated sentencing
purposes and its findings concerning the nature and circumstances
of the offense comprise a sentencing rationale that plausibly
supports a substantial upward variance.
By the same token, the sentence achieves a defensible
result. At the disposition hearing, the district court emphasized
that the drugs the appellant sold to Gavin contained fentanyl;
that fentanyl poses an extreme peril to human life; and that the
appellant was chargeable with knowledge of this special danger.
Because the appellant's conduct knowingly risked Gavin's life and
because his fentanyl contributed meaningfully to Gavin's death,
the court reasonably concluded that a substantial upward variance
was appropriate.
Nor do we regard the extent of the upward variance as
exceeding the wide margins of the court's discretion. Even though
the upward variance was substantial, both the consequences of the
appellant's wrongdoing and the need to deter similar criminal
conduct were also substantial. Moreover, the upwardly variant
sentence was well below the statutory maximum of twenty years, see
21 U.S.C. § 841(b)(1)(C), and three full years below the ninety-
- 18 - six months suggested by the prosecutor at sentencing. Viewing the
sixty-month sentence in light of all the facts and circumstances
of the case, we discern no abuse of discretion. The sentence was
not outside the universe of reasonable sentencing outcomes. We
hold, therefore, that the sentence was substantively reasonable.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the challenged sentence is
Affirmed.
- 19 -