U.S. Sentencing Guideline § 2D1.1(a)(2) applies a base “base offense level” of 38 in certain drug cases when “the offense of conviction establishes that death or serious bodily injury resulted from the use of the substance …”
On March 16, 2016, the Seventh Circuit Court of Appeals in United States v. Lawler joined the Fifth, Third, and Sixth Circuits in holding that § 2D1.1(a)(2) applies “only when a resulting death (or serious bodily injury) was an element of the crime of conviction, proven beyond a reasonable doubt or admitted by the defendant.”
Large-Scale Heroin Distribution Conspiracy
Along with thirty other defendants, Jean Lawler was indicted in federal court on a single count of distributing heroin and conspiring to possess heroin with intent to distribute. She was in fact, by her own admission, part of a “large-scale heroin-distribution conspiracy” that resulted in the overdose deaths of five people.
Lawler pleaded guilty to the one count federal indictment. Under the federal drugs statutes she was indicted for violating, the statutory sentencing range is 10 years to life. The 10-year statutory minimum is increased from 10 to 20 years “if death results from the use of the” drugs.
- 2D1.1(a)(2) recommends a longer sentence when death results, increasing the base offense level if “the offense of conviction establishes” that death results.
The U.S. district court that sentenced Lawler found, by a preponderance of the evidence, that Lawler sold heroin that killed one of the customers of the drug conspiracy she was part of.
Smart Lawyer Preserves Appellate Issue
The plea agreement to which Lawler entered with the Government stated that prosecutors would argue that she was subject to both the 20-year statutory minimum and an increased base offense level under § 2D1.1(a)(2). Lawler disagreed with those provisions of the agreement and preserved her right to appeal them.
The Seventh Circuit upheld the district court application of the 20-year statutory minimum based on a “preponderance of the evidence” finding.
The U.S. Supreme Court reversed the Seventh Circuit, finding that any increase in a statutory minimum sentence must be found “beyond a reasonable doubt.”
Back before the district court, the Government stipulated that the 20-year statutory minimum did not apply because it had not been proven beyond a reasonable doubt that Lawler sold heroin that killed anyone. The Government, however, went through the backdoor to argue that her base offense level should remain at 38 under § 2D1.1(a)(2) as an enhancement—an argument accepted by the district court.
The consequence of the district court’s decision had a “significant consequence.”
Lawyer’s recommended range of punishment under the guidelines absent the § 2D1.1(a)(2) soared from 15 to 21 months to 168-210 months. Based on her “substantial assistance” to the Government, the district court imposed a 98-month term of imprisonment—77 months more than the high end of the recommended Guidelines range.
Lawler once again appealed to the Seventh Circuit.
She argued that her offense did not cause the death of anyone. Her argument was premised on the assertion that none of the drug overdose deaths brought about by the drug conspiracy were inherent in her conviction and that the district court could not make such a finding under § 2D1.1(a)(2) based on a preponderance of the evidence.
The sentencing judge apparently believed he could get around the “reasonable doubt” standard by considering the drug overdose death as part of the “relevant conduct” of Lawler’s offense in order to enhance her sentence.
There was little support in the Guidelines for this reasoning, as explained by the Seventh Circuit.
Offense vs. Offense of Conviction
The Guidelines have different meanings for “offense” and “offense of conviction.”
Guideline § 1B1.1 n.1 defines “offense” as “offense of conviction” plus “all relevant conduct.”
- 1B1.3(a) defines relevant conduct as “all acts and omissions … that occurred in preparation for that offense, or in the course of attempting to avoid detection or responsibility for that offense.”
The Seventh Circuit, however, said these provisions clearly show that, taken together, “offense of conviction” does not include “all relevant conduct” because it is a narrower term than “offense.”
And that was the flaw in the sentencing judge’s reasoning as pointed out by the appeals court:
“The district court went on, however, to state that § 2D1.1(a)(2) ‘is an enhancement for relevant conduct and not an element of the offense.’ That was erroneous. The text states that the ‘offense of conviction’—which, as we just discussed, does not include ‘relevant conduct’—must ‘establish’ that death occurred. That’s the case only when death is an element of the crime that is admitted by the defendant or proven beyond a reasonable doubt. That conclusion, based on the text, is the one reached by the circuit courts that have squarely addressed the issue.”
The Seventh Circuit closed its ruling by saying that nothing in its decision prevents a district court from considering a death that resulted in a crime as a “factor” in determining the ultimate sentence that can be imposed within the “authorized guideline range.” The sentencing court simply cannot enhance a sentence under § 2D1.1(a)(2) unless the death or serious bodily injury is an element of the crime of conviction and that element is proven beyond a reasonable doubt.