United States v. Keith L. Walker ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
K EITH L. W ALKER, et al.,
Defendants-Appellants.
Appeals from the United States District Court
for the Eastern District of Wisconsin.
No. 2:08-cr-197—J.P. Stadtmueller, Judge.
A RGUED N OVEMBER 30, 2011—D ECIDED JULY 3, 2013
Before M ANION, W ILLIAMS, and T INDER, Circuit Judges.
W ILLIAMS, Circuit Judge. Joshua Carroll, Andrew Goetzke,
David Knuth, Valerie Luszak, and Jeffrey Topczewski
died after using heroin distributed by a large-scale narcot-
ics trafficking organization. The five defendants in this
case each pled guilty to possession with intent to dis-
tribute and conspiracy to distribute in excess of one
kilogram of heroin in violation of 21 U.S.C. §§ 841(a)(1),
2 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
846. Because five people died, the government requested
that the district court impose a mandatory minimum
penalty of twenty years’ imprisonment to each de-
fendant’s sentence under 21 U.S.C. § 841(b)(1)(A). The
district court thought that it was required to impose
the same penalty on all of the defendants under a theory
of strict liability. So the major issue we need to decide
on appeal is whether each of the defendants must
receive the same statutory penalty, regardless of their
role in the conspiracy or connection to the drugs that
killed the users.
We now agree with the Sixth Circuit that a district
court must make specific factual findings to determine
whether each defendant’s relevant conduct encompasses
the distribution chain that caused a victim’s death before
applying the twenty-year penalty. And we affirm the
sentences of Jean Lawler, Jason Lund, and Jermaine
Stewart since the court found that they were in the dis-
tribution chain that led to the five deaths and the record
clearly supports those findings. However, we vacate
the sentences of Keith Walker and Eneal Gladney, and
remand for further proceedings because the district
court did not make the required findings.
I. BACKGROUND
The conspiracy charged here ran from 2005 to 2008 and
operated in and around Milwaukee, Wisconsin, with
Lonnie Johnson acting as one of its leaders and supplying
bulk quantities of heroin. Stewart was Johnson’s chief
Nos. 10-2173, 10-2176, 10-2355, 3
11-1024 & 11-1510
lieutenant, managing regional operations after Johnson
relocated to Chicago. Johnson and Stewart used a network
of distributors in Milwaukee and Waukesha to co-
ordinate sales for the organization. Walker and Gladney
worked out of Milwaukee as higher-level distributors.
The conspiracy’s distributors partnered with lower-
level street dealers and individual users who brokered
further sales to customers.
A substantial portion of the conspiracy’s customer
base came from Pewaukee, Muskego, and Waukesha—
areas west of Milwaukee. Lund worked out of the
Waukesha branch as a dealer, connecting potential cus-
tomers to Stewart and another distributor, Luke
Bandkowski. Lawler was a low-level member of the
conspiracy, also based in the Waukesha area. She pur-
chased relatively small quantities of heroin from
Bandkowski to resell to others and for personal use. The
five individuals identified earlier died from using
heroin distributed by this organization and four of
these deaths occurred in the Waukesha area.
Between 2007 and 2008, the government worked with
confidential informants to infiltrate the conspiracy and
obtain evidence of its operations. On July 22, 2008, a
grand jury returned a one-count indictment charging the
defendants with conspiracy to distribute heroin. The
indictment further alleged that death and serious bodily
injury resulted from the use of heroin distributed by the
conspiracy. Each of the appellants entered into plea
agreements with the government reserving the right to
4 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
challenge the sentencing penalty for death or serious
injury.
The district court found that Lund had coordinated the
sales of heroin that killed two victims: Andrew Goetzke
and David Knuth. Goetzke began using heroin in early
2007, buying drugs from the conspiracy through
Bandkowski. He was eventually interviewed by police
officers and agreed to become a confidential informant.
On the night of June 5, 2008, Lund called his ex-girlfriend,
Candice Haid, to get her help in coordinating Goetzke’s
purchase of heroin from Stewart. Lund and Stewart had
a prior falling out and were not communicating directly,
so Lund got Stewart’s current phone number from
Haid. Lund and Goetzke drove together to pick up heroin
from Stewart’s apartment in Milwaukee. The two split
the drugs and Lund received an additional thirty dollar
cut for setting up the sale. After they injected the
heroin, Goetzke left for his mother’s apartment with his
girlfriend. The next morning, his mother was unable to
wake him and called 911, but emergency personnel
could not revive him.
One month later, on the night of July 3, 2008, Lund again
contacted Stewart to coordinate a sale for himself,
Haid, and David Knuth. After completing the purchase,
the three began injecting heroin in a car. Knuth stopped
breathing almost immediately. Haid was initially able
to revive Knuth using cardiopulmonary resuscitation
(CPR) and the three started driving home. But Knuth
lapsed into unconsciousness and began bleeding from
Nos. 10-2173, 10-2176, 10-2355, 5
11-1024 & 11-1510
the nose. Haid called 911 while Lund drove to the
parking lot of a local healthcare facility. The dispatcher
advised that Knuth be moved to a flat surface. So Haid
pulled him onto the ground of the parking lot where
she administered CPR. Lund drove off. Unfortunately
the clinic was closed and Knuth could not be revived by
emergency personnel when they finally responded. He
was later pronounced dead.
The district court further found that Lawler sold the
drugs that killed Jeffrey Topczewski. Jeffrey’s sister,
Jennifer Topczewski, is a co-defendant in the case and
the siblings shared a severe addiction to heroin. On
February 17, 2008, Jeffrey talked to his sister about using
a recent tax refund to buy heroin. He contacted his sister
to get the phone number for Lawler who had sold him
drugs a few days earlier. At the time, Jeffrey was living
with his parents and used their home phone since he
did not have a cell phone. On February 19, 2008, the
day before his death, Jeffrey called Lawler from his par-
ents’ home phone to set up a purchase. When Jeffrey
did not arrive at the agreed time, Lawler called the
Topczewski residence that evening to check on his sta-
tus. Shortly thereafter, Jeffrey went to her house to com-
plete the sale. Telephone records corroborate this
series of events and confirm that the only calls from the
Topczewski residence were to Jennifer and to Lawler
while Jeffrey was home on the 19th. After taking heroin
that evening, Jeffrey told his parents he felt sick. The
next day, Jeffrey’s mother checked his room in the
evening and found him dead. In later interviews with
6 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
police, Jennifer Topczewski and Lawler’s friend, Kallie
Klappa, eventually confirmed that on the night of
February 19th Lawler sold Jeffrey the heroin that
killed him.
In addition, two others died from drugs sold by
different participants in the conspiracy. The first was
Valerie Luszak, a woman in Milwaukee who died on
August 26, 2007. That night, she went to the house of a
friend, Louis Brown, and offered to share her heroin
with him. Brown could identify the heroin as that sold
by the conspiracy due to distinctive ways in which the
drugs were packaged. He also knew that Johnson, the
conspiracy’s leader, was Luszak’s principal source. After
shooting up, Brown warned Luszak about the strength
and purity of the dose. But Luszak believed she had
built up sufficient tolerance and injected the drug any-
way. She fell unconscious and died several hours later.
On December 29, 2007, Joshua Carroll set up a purchase
of heroin from Bandkowski. Another user informed
police that he and Carroll drove with Bandkowski to
Milwaukee to collect the drugs that evening. Later that
night, emergency personnel were called to Carroll’s
residence after he was found unresponsive. He could
not be revived and was pronounced dead.1
The district court found that all five deaths had resulted
from heroin distributed by the conspiracy and applied
1
The district court adopted the factual findings in the PSR as
its findings of fact at sentencing.
Nos. 10-2173, 10-2176, 10-2355, 7
11-1024 & 11-1510
a twenty-year mandatory minimum sentencing penalty
to each of the defendants under 21 U.S.C. § 841(b)(1)(A),
but the sentences for four of the five appellants were
adjusted below twenty years pursuant to § 5K1.1 of the
Sentencing Guidelines for substantial assistance provided
to the government. Each defendant now appeals the
district court’s findings and application of the twenty-
year penalty to their sentence.
II. ANALYSIS
We review the district court’s legal determinations
and interpretation of sentencing statutes de novo. United
States v. Hernandez, 544 F.3d 743, 746 (7th Cir. 2008). The
penalty provisions of § 841(b)(1)(A) outline sentencing
factors which must be supported by a preponderance
of the evidence. United States v. Krieger, 628 F.3d 857, 866-
67. We will reverse the district court’s factual findings
only where there is a “definite and firm conviction that
a mistake has been committed.” United States v. Bennett,
461 F.3d 910, 912 (7th Cir. 2006).
A. Liability for Death Caused by Drug Use
Each of the defendants pled guilty to conspiracy to
possess with intent to distribute and distribute in excess
of one kilogram of heroin in violation of 21 U.S.C.
§§ 841(a)(1), 846. Section 846 specifically provides that
“[a]ny person who attempts or conspires to commit any
offense defined in this subchapter shall be subject to the
8 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
same penalties as those prescribed for the offense, the
commission of which was the object of the attempt or
conspiracy.” Section 841(b)(1)(A) increases the penalty
when a drug user dies and instructs that a defendant’s
term of imprisonment “shall not be less than 20 years . . . if
death or serious bodily injury results from the use of
such substance” distributed in violation of § 841(a)(1).
21 U.S.C. § 841(b)(1)(A).2
The conspiracy charged in this case was a broad, multi-
level drug network and each defendant played a dif-
ferent role in the organization. But the district court
interpreted the penalty provision of § 841(b)(1)(A) as
setting an identical twenty-year mandatory floor for
all members of the conspiracy because the drug network,
as a whole, had caused the deaths of several customers.
Although the district court appeared troubled by these
sentencing implications, it concluded that Congress
intended that all defendants be held strictly liable
for deaths caused by illegal drug distribution, re-
gardless of their role in the distribution chain. The de-
fendants argue that this was error and urge that we
interpret § 841(b)(1)(A) as requiring a district court to
find death or serious bodily injury reasonably foresee-
able to a defendant before imposing this statutory en-
2
U.S.S.G. § 2D1.1(a)(2) mirrors the language in § 841(b)(1)(A)
and assigns a base offense level of 38 “if the defendant is
convicted under 21 U.S.C. § 841(b)(1)(A) . . . [and] death or
seriously bodily injury resulted from the use of the sub-
stance. . . .” U.S.S.G. § 2D1.1(a)(2).
Nos. 10-2173, 10-2176, 10-2355, 9
11-1024 & 11-1510
hancement. This issue is a matter of first impression in
this circuit.
Almost every other circuit to consider the penalty
under § 841(b)(1)(A) has held that a victim’s death need
not be reasonably foreseeable for the penalty to apply in
cases where the defendant either directly produces,
distributes, or uses an intermediary to distribute, fatal
doses of drugs. See United States v. Webb, 655 F.3d 1238(11th Cir. 2011); United States v. De La Cruz, 514 F.3d
121 (1st Cir. 2008); United States v. Houston, 406 F.3d 1121(9th Cir. 2005); United States v. Soler, 275 F.3d 146 (1st Cir.
2001); United States v. McIntosh, 236 F.3d 968 (8th Cir.
2001); United States v. Robinson, 167 F.3d 824 (3d Cir. 1999);
United States v. Patterson, 38 F.3d 139 (4th Cir. 1994). By
its very terms, the statutory language of § 841(b)(1)(A)
omits any reference to the mental state that would
trigger the penalty. It simply applies whenever “death . . .
results” from the use of drugs supplied by the defen-
dant. The First and Eighth Circuits have described a
defendant’s liability under this provision as “strict,”
meaning that once a causal connection has been estab-
lished, a defendant is automatically liable for the
increased penalty regardless of whether or not he knew, or
should have known, that a drug user might die. See
Soler, 275 F.3d at 152; McIntosh, 236 F.3d at 974. Cf. United
States v. Burrage, 687 F.3d 1015 (8th Cir. 2012) (affirming
district court’s use of “contributing cause” language in
jury instructions where a drug dealer sold heroin to a
user who later died with cocktail of various drugs found
in his system), cert. granted, ___ S. Ct. ___, 2013 WL 178807610 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
(U.S. April 29, 2013) (granting certiorari to consider
the question of whether § 841 is a strict liability crime
without a foreseeability or proximate cause require-
ment). In the Fourth Circuit’s view, “[t]he statute puts
drug dealers on clear notice that their sentences will
be enhanced if people die from using the drugs they
distribute.” Patterson, 38 F.3d at 145.
In contrast, the Ninth Circuit “stop[ped] short of ascrib-
ing to the . . . ‘strict liability’ language” used by other
circuits, concluding instead that “[p]roof that the
resulting death was actually caused by ingestion of
the controlled substance knowingly distributed by the
defendant is sufficient to increase the punishment for
the unlawful distribution.” Houston, 406 F.3d at 1124
n.5. The court recognized that “there may be some fact
scenarios in which the distribution of a controlled sub-
stance is so removed and attenuated from the resulting
death that criminal liability could not be imposed . . . .” Id.The Sixth Circuit confronted such a scenario in United
States v. Swiney, 203 F.3d 397 (6th Cir. 2000), in evaluating
the application of the twenty-year penalty to low-level
conspirators who played no direct part in the underlying
conduct which resulted in a drug user’s death. In
Swiney, a victim died after taking heroin sold by a multi-
level drug conspiracy and the government claimed that
all of the defendants should receive the same twenty-
year minimum penalty. But the Sixth Circuit rejected
the strict liability approach advocated by the govern-
ment. The Swiney court began its analysis by finding that
Nos. 10-2173, 10-2176, 10-2355, 11
11-1024 & 11-1510
the government’s argument “ignores the Sentencing
Guideline’s treatment of conspiracy.” 203 F.3d at 402
(citing § 1B1.3(a)(1)(B)). Section 1B1.3(a)(1)(B) of the
Sentencing Guidelines outlines different sentencing
consequences for different defendants “in the case of a
jointly undertaken criminal activity.” Application Note 2
further explains this now-familiar concept:
In the case of a jointly undertaken criminal activity,
subsection (a)(1)(B) provides that a defendant
is accountable for the conduct (acts and omis-
sions) of others that was both:
A. in furtherance of the jointly undertaken crimi-
nal activity; and
B. reasonably foreseeable in connection with that
criminal activity.
Because a count may be worded broadly and
include the conduct of many participants over a
period of time, the scope of the criminal activity
jointly undertaken by the defendant (the “jointly
undertaken criminal activity”) is not necessarily
the same as the scope of the entire conspiracy, and
hence relevant conduct is not necessarily the
same for every participant. In order to determine
the defendant’s accountability for the conduct of
others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity
the particular defendant agreed to jointly under-
take (i.e., the scope of the specific conduct and
objectives embraced by the defendant’s agree-
12 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
ment). The conduct of others that was both in
furtherance of, and reasonably foreseeable in
connection with, the criminal activity jointly
undertaken by the defendant is relevant conduct
under this provision. The conduct of others that
was not in furtherance of the criminal activity
jointly undertaken by the defendant, or was not
reasonably foreseeable in connection with that
criminal activity, is not relevant conduct under
this provision.
Id. cmt. n.2. The Guidelines make clear that the scope of
a defendant’s relevant conduct for determining sen-
tencing liability may be narrower than the scope of crimi-
nal liability. So in applying the principles of relevant
conduct as defined in § 1B1.3(a)(1)(B), the Sixth Circuit
in Swiney held that “before any of the [co-conspirators]
can be subject to the twenty-year sentence enhancement
of 21 U.S.C. § 841(b)(1)(C)” a “district court must find
that [a given defendant] is part of the distribution
chain” that led to an individual’s death. 203 F.3d at 406.
We read this to mean a defendant can only be subject to
the enhancement if the distribution of heroin that ulti-
mately led to a victim’s death was “reasonably foresee-
able” and in furtherance of jointly undertaken activity
as defined in § 1B1.3(a)(1)(B).
We have already applied the logic of Swiney in a
parallel context: mandatory minimums for drug quantities
trafficked by a conspiracy. In that context, we have
found that a defendant is only liable for the foreseeable
Nos. 10-2173, 10-2176, 10-2355, 13
11-1024 & 11-1510
quantities of drugs attributed to co-conspirators. See, e.g.,
United States v. Alvarado-Tizoc, 656 F.3d 740, 744 (7th Cir.
2011); Gray-Bey v. United States, 156 F.3d 733, 740-41 (7th
Cir. 1998), United States v. Edwards, 945 F.2d 1387, 1395
(7th Cir. 1991). In other words, “the foreseeability
analysis employed in the Guidelines context is also ap-
plicable in the statutory context.” United States v. Young,
997 F.2d 1204, 1210 (7th Cir. 1993), superseded on separate
grounds, United States v. Rivera, 411 F.3d 864, 866 (7th
Cir. 2005). As a result, we decline to hold defendants
presumptively liable for quantities distributed by the
entire conspiracy because “it would . . . be difficult to
assume Congress intended to employ under the statute
a sentencing scheme that is so completely at odds with
the measured approach clearly required by the Guide-
lines.” Id.; see also United States v. Munoz-Cerna, 47 F.3d
207, 210 (7th Cir. 1995) (“[A]lthough Congress has
chosen to address sentencing policy issues through both
statutes and sentencing guidelines, we ought not
presume lightly that it intended that these two vehicles
of its legislative will be at odds with each other.”). As
noted above, § 846 makes co-conspirators “subject to
the same penalties” whether or not they directly dis-
tributed drugs to users. But this does not mean that
every co-conspirator shares the same mandatory mini-
mum sentence for the entire quantity of drugs dis-
tributed by the conspiracy, or for the deaths of every
buyer. See United States v. Martinez, 987 F.2d 920, 924 (2d
Cir. 1993) (explaining that “[s]ection 846 does not sub-
ject the defendant to liability for any crimes committed
14 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
by any other member of the conspiracy, regardless of the
defendant’s knowledge about those crimes [because
such an approach] would . . . expand dangerously the
scope of conspiratorial culpability.”).
As discussed in greater detail below, we join the con-
sensus reached by other circuits and conclude that a
district court generally need not find death reasonably
foreseeable for the mandatory minimum sentence to
apply in cases where a defendant directly distributes
drugs or uses intermediaries to distribute drugs that
result in death. But like the Houston court, we hesitate to
characterize this liability as absolutely “strict.” And like
the Swiney court, we hold that a district court must
find the distribution chain that ultimately led to an indi-
vidual’s death to be relevant conduct under § 1B1.3(a)(1)(B)
before a defendant can receive the twenty-year penalty.
1. Finding Walker and Gladney Liable for Deaths
Caused by Co-Conspirators’ Distribution of
Heroin Was Error
We begin by considering whether the district court
correctly imposed the statutory penalty on Walker and
Gladney—two street-level distributors—who did not
directly distribute drugs to the users who died or dis-
tribute drugs through intermediaries. At sentencing,
Walker and Gladney argued that the mandatory
minimum penalty did not apply to them because the
government failed to prove that the drug users’ deaths
were reasonably foreseeable to them. The district court
Nos. 10-2173, 10-2176, 10-2355, 15
11-1024 & 11-1510
expressed misgivings about the manner in which
§ 841(b)(1)(A) could be applied, but believed its hand
were tied, stating:
[A]lthough [Gladney] perhaps did not in any one
of these deaths personally deliver the heroin
that ultimately was ingested by the decedents,
the statute on its face makes it clear that anyone
associated with the conspiracy and the conduct
that underlies it during the relevant time period
is strictly liable and accountable for sentencing
purposes for death.
But we cannot conclude that the application of the
penalty to Walker and Gladney was supported by
this record.
The government maintains that when a victim dies
from using drugs distributed by a conspiracy, all co-
conspirators are subject to the twenty-year mandatory
minimum penalty under Pinkerton v. United States, 328
U.S. 640 (1946). The Pinkerton doctrine holds that a
member of a conspiracy can only be held liable for
the reasonably foreseeable crimes committed by his ac-
complices in the course of the conspiracy. Id. at 647-48.
The government argues that the Pinkerton doctrine was
intended to hold defendants liable for the substantive
offenses of their co-conspirators, not for the consequences
of their co-conspirators’ actions. In this case, it is fore-
seeable that members of heroin distribution conspiracy
will sell heroin. Users died from heroin sold by members
of the conspiracy. Therefore, in the government’s view,
16 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
every defendant must be held strictly liable for a death
caused by any co-conspirator’s sale of drugs. But the
Sixth Circuit in United States v. Swiney dealt with a
factual scenario nearly identical to our case and rejected
the strict liability approach for defendants like Walker
and Gladney.
Swiney highlighted an important distinction between
a defendant’s criminal liability for acts committed by
others in furtherance of the conspiracy and the sen-
tencing consequences for a particular defendant. Under
§ 1B1.3(a)(1)(B), sentencing liability is limited to “the
scope of the specific conduct and objectives embraced by
the defendant’s agreement.” As a result, the Sixth
Circuit had “no difficulty in reconciling the mandatory
minimum language of § 841(b)(1)(C) and § 1B1.3(a)(1)(B),”
finding it “clear that the Sentencing Guidelines have
modified the Pinkerton theory of liability so as to harmo-
nize it with the Guidelines’ goal of sentencing a defen-
dant according to the ‘seriousness of the actual conduct
of the defendant and his accomplices.’ ” Swiney, 203 F.3d
at 404-05 (quoting William W. Wilkins & John R. Steer,
Relevant Conduct: The Cornerstone of the Federal Sentencing
Guidelines, 41 S.C.L. Rev. 495, 502 (1990)).
The government argues that death is always a fore-
seeable result of illegal drug distribution, but the re-
sulting sentencing scheme for co-conspirators under
§ 841(b)(1)(A) would have far-reaching implications.
Consider the circumstances in United States v. McIntosh,
236 F.3d 968 (7th Cir. 2001), where a young girl died
Nos. 10-2173, 10-2176, 10-2355, 17
11-1024 & 11-1510
from ingesting methamphetamine residue retained on a
coffee filter. In that case, the defendant did not directly
provide the victim with the drug, but the district court
applied the mandatory minimum sentence under
§ 841(b)(1)(A) because the defendant originally
produced the drug. Under the government’s approach
here, not only would the individual who produced the
methamphetamine receive the twenty-year minimum
sentence, but every person connected with the con-
spiracy in any way—from the lowliest lookout on the
corner to the boss—would all receive the same twenty-
year penalty. Such a result is overly broad and not sup-
ported by the law in our view. A member of a multi-level
drug network may be criminally liable for aiding the
broader conspiracy, but a district court has to ex-
plain why the fatal heroin doses are among the drugs
attributable to a defendant for relevant conduct pur-
poses in sentencing. See Swiney, 203 F.3d at 404. This
does not mean that a defendant has to foresee a
particular drug transaction leading to a user’s death, but
mere participation in the overall conspiracy is not suf-
ficient for relevant conduct purposes.
Notably, much of the circuit precedent on which
the government relies explicitly distinguishes defen-
dants like Walker and Gladney—whose sentences
were enhanced based solely on the conduct of their co-
conspirators—from those who either directly distributed
(or used an intermediary to distribute) drugs that
killed users. In McIntosh, the Eighth Circuit specifically
noted that it was not faced
18 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
with a situation in which the government seeks
to vicariously enhance a defendant’s sentence
based solely on the actions of a co-conspirator or co-
conspirators . . . . We find Swiney’s reasoning
applicable only in those cases in which a conspir-
acy defendant played no direct part in manufac-
turing the drug or in immediately distributing
the drug that caused the death or serious bodily
injury. If the government seeks to enhance a con-
spiracy defendant’s sentence, as it did in Swiney,
based solely on conduct of a co-conspirator, a
foreseeability analysis may be required in deter-
mining whether Congress intended, under § 846,
that the defendant be held accountable for the
conduct of a coconspirator.
236 F.3d at 974 (emphasis added); see also United States v.
Carbajal, 290 F.3d 277, 284 (5th Cir. 2002) (“The court in
Swiney . . . addressed a situation in which the
defendant played no direct role in distributing or manu-
facturing the drugs that allegedly caused the deaths.”).
The circumstances of Walker and Gladney are equiv-
alent to Swiney and we adopt the reasoning of the Sixth
Circuit. Walker and Gladney do not dispute that they
distributed drugs as members of the conspiracy. But
the government offered no evidence that they had any
connection to manufacturing or distributing the fatal
doses of heroin that caused the five deaths, and the
district court failed to explain why the fatal doses
should count for relevant conduct. The government
Nos. 10-2173, 10-2176, 10-2355, 19
11-1024 & 11-1510
contends that the district court implicitly found that
the deaths fell within Walker’s and Gladney’s relevant
conduct because the court stated that the two were
“deeply” involved in the conspiracy. But the presentence
report outlines different sentencing liability for these
defendants vis-à-vis their superiors. As leaders, Johnson
and Stewart were equally responsible for the total drugs
distributed—between three and ten kilograms of her-
oin—but the quantities attributed to Walker and
Gladney did not equal that amount. Walker was respon-
sible for one to three kilograms of heroin, while Gladney
distributed between 700 grams and 1 kilogram of heroin.
Four of the five deaths occurred in Waukesha, but the
district court made no findings about whether Walker
and Gladney dealt drugs in that area or whether they
should have reasonably foreseen their co-conspirators’
distribution.3 Furthermore, the record contains a dia-
gram of the conspiracy from the initial request for a
search warrant, which visually links the four Waukesha
deaths to a distribution chain running from Johnson to
Stewart, Lund, Bandkowski, and Lawler with no con-
nection to Walker or Gladney. And Valerie Luszak, the
one victim who died in Milwaukee, appears to have
purchased heroin directly from Johnson.
3
Gladney’s defense counsel also objected to the admission
of the autopsy report for Joshua Carroll since he died on
December 30, 2007, and Gladney did not join the conspiracy
until sometime in February 2008.
20 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
To be clear, the twenty-year sentencing enhancement
may apply even if Walker and Gladney did not per-
sonally sell any of the fatal doses at any point in the
distribution chain that ultimately reached the victims.
Consider the following example: A gives drugs to B, B
sells them to C, and C dies. D, a member of the overall
drug conspiracy, may be subject to the twenty-year sen-
tencing penalty even though she did not directly sell
the fatal dose to C, but “the court must first determine
the scope of the criminal activity the particular
defendant agreed to jointly undertake” under U.S.S.G.
§ 1B1.3(a)(1)(B) before the penalty is applied. Otherwise,
we have no way to know whether a defendant is being
sentenced on the basis of drugs that were distributed
in furtherance of the conspiracy and that distribution
was reasonably foreseeable, or whether a defendant is
being sentenced strictly on the basis of his general par-
ticipation in a conspiracy in which a drug user died.
In reaching this conclusion, we also have no doubt
that in setting a twenty-year mandatory minimum sen-
tence, Congress sought to emphasize the inherent
dangers associated with distributing controlled sub-
stances and to severely penalize sellers. But the question
of whether defendants will be subject to this twenty-
year minimum sentence depends upon whether their
relevant conduct encompasses the drugs linked to an
individual’s death. Because the district court did not
explicitly make such a finding for Walker and Gladney,
we vacate their sentences and remand for resentencing.
Nos. 10-2173, 10-2176, 10-2355, 21
11-1024 & 11-1510
2. Stewart Is Liable for Distribution of Heroin
Through Intermediaries
We next consider whether the district court correctly
applied the twenty-year penalty to Stewart, a leader of
the conspiracy. The government offered extensive
evidence that Stewart was working at the top of the
organization, in partnership with its leader, Lonnie John-
son. Stewart was the principal contact and supplier for
the conspiracy’s distributors as well as many of its cus-
tomers. Several of the government’s confidential infor-
mants identified him as one of the heads of the organiza-
tion.
Although the district court made no finding that
Stewart directly sold the fatal doses of heroin that killed
the victims, the government offered extensive evidence
supporting the district court’s finding that Stewart was
the ultimate source of drugs that killed users. Goetzke
and Knuth overdosed on drugs sold by Lund, who had
obtained them from his regular supplier: Stewart.
Stewart also gave another distributor, Bandkowski, the
drugs that caused Carroll’s death. Lawler was the last
link in the chain that killed Topczewski, having resold
to him a smaller quantity of heroin she had purchased
from Bandkowski. At Stewart’s sentencing, the court
told the defendant, “Now, I appreciate you may not have
been standing over Mr. Knuth when he took that final
dose, but that is not what the law requires. The law simply
tracks who provided the substance . . . .”
The district court correctly applied the sentencing
enhancement to Stewart for victims who died using
22 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
heroin he had provided through intermediaries. As
explained above, many of our sister circuits have con-
sidered cases involving defendants higher in the chain
of distribution than the co-conspirators who gave fatal
doses directly to victims. All these cases have held de-
fendants liable for subsequent death caused by drugs
resold through an intermediary. See United States v.
De La Cruz, 514 F.3d. at 125-26 (defendant led con-
spiracy, dispensing drugs through intermediaries);
McIntosh, 236 F.3d at 970 (defendant provided drugs to
intermediary who later gave them to decedent without
defendant’s knowledge or authorization); Robinson,
167 F.3d at 826-27 (same).
This conclusion is no accident but the result of the
legislative design of § 846. As the Second Circuit observed
in United States v. Martinez, 987 F.2d 920, 925 (2d Cir. 1993):
The legislative history of 21 U.S.C. § 846 reveals
that the intent of Congress in enacting that sec-
tion was to ensure that a defendant who is charged
with only conspiracy not be in a better position
for sentencing than one who is charged solely
with possession of the same amount of narcotics.
Id. Under the same rationale, a kingpin who finances
and controls a drug distribution operation cannot escape
liability for the “death resulting” penalty simply because
he never personally sold to customers.
In this case, it is clear that Stewart’s actions and conduct
led to the victims’ deaths. He supplied his distributors
and relied upon them to resell to end users. It was
Nos. 10-2173, 10-2176, 10-2355, 23
11-1024 & 11-1510
certainly understood that recipients of drugs Stewart
provided would resell, share, or otherwise offer the
drugs to unknown or unauthorized users. See Robinson,
167 F.3d at 831 (“It was reasonably foreseeable to [the
defendant] that [the intermediary] would deliver the
drugs to someone else . . . .”). Like our sister circuits, we
acknowledge that our analysis might differ if a
defendant’s participation in the chain of distribution is
especially removed from a victim’s resulting death, as
in the cases of Walker and Gladney. In such cases, “a court
might conclude that it would not be consistent with
congressional intent to apply the mandatory 20-year
minimum sentence.” Id. at 831-32. But Stewart’s case
does not require us to weigh these concerns. The vic-
tims’ deaths were directly caused by Stewart’s
criminal conduct; indeed, they were part of the ordinary
course of business for the conspiracy he led. Therefore
Stewart is liable for the deaths and we affirm the
district court’s application of the penalty to his sentence.
3. Lund and Lawler Are Liable for the Direct Dis-
tribution of Heroin Causing Death
Finally, we address the most straightforward applica-
tion of the statute to Lund and Lawler who—while oc-
cupying relatively low-level roles in the organization as
a whole—had perhaps the closest connection to the
deaths of customers who used drugs distributed by the
conspiracy. Lund purchased heroin for his own use
24 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
from Stewart, but also distributed larger quantities to
customers and associates at the street level. Lawler was
even further down in the distribution chain, purchasing
small quantities from distributors primarily for herself
while reselling some to friends. But whatever their role
in the conspiracy, the district court found that both
Lund and Lawler directly provided users with the
doses that ended their lives. Lund coordinated the sales
of heroin that killed Goetzke and Knuth, and Lawler
sold the drugs that killed Topczewski.
There can be little doubt that Congress intended the
mandatory minimum penalty to apply to Lund and
Lawler for their direct distribution of deadly heroin doses
to users. This penalty applies without regard for any
special care the defendant took, the reputation for safety
of the controlled substance, or the hypersensitivity of
the victim because “risk is inherent in [a controlled sub-
stance,] . . . [and so] persons who distribute it do so at
their peril.” Robinson, 167 F.3d at 831. So we affirm the
district court’s application of the twenty-year penalty to
Lund and Lawler. They also challenge the trial court’s
factual findings related to the deaths of certain users,
but as discussed below, these challenges are without merit.
a. No Evidence of Withdrawal From Conspiracy
by Lund
Lund contends that the district court erred in finding
that he was still a member of the conspiracy when
Nos. 10-2173, 10-2176, 10-2355, 25
11-1024 & 11-1510
Goetzke and Knuth died of overdoses. Lund argues that
the mandatory minimum should not apply because the
deaths occurred after he had withdrawn from the con-
spiracy following a dispute with Stewart.
“In order to withdraw from a conspiracy, a defendant
must cease his activity in the conspiracy and take
an affirmative act to defeat or disavow the con-
spiracy’s purpose, either by making a full confession to
the authorities or by communicating his withdrawal in
a manner reasonably calculated to inform his co-
conspirators.” United States v. Bullis, 77 F.3d 1553, 1562
(7th Cir. 1996). Furthermore, we have noted that
“[i]nactivity alone does not constitute withdrawal; to
withdraw from a conspiracy, the defendant must
terminate completely his active involvement in the con-
spiracy, as well as take affirmative steps to defeat or
disavow the conspiracy’s purpose.” United States v.
Hargrove, 508 F.3d 445, 449 (7th Cir. 2007) (internal quota-
tion marks and citation omitted); United States v. Wilson,
134 F.3d 855, 863 (7th Cir. 1998) (“The withdrawal must be
complete and in good faith.”).
Lund says he and Stewart had a falling-out after
Stewart swindled him on a sale of heroin in Decem-
ber 2007. Stewart allegedly drove off without giving
Lund the full amount he had purchased. Lund responded
by tricking Stewart in a later transaction, paying him
less than the full amount due. After this incident Lund
was imprisoned for five months on unrelated charges.
When he was released, Stewart refused to contact or
26 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
work with Lund directly because of the dispute over the
prior sale and Lund contends that this rupture con-
stituted a break in his participation in the conspiracy.
The district court did not err in declining to deem
this disagreement an effective withdrawal. Soon after
Lund was released from jail, he coordinated sales of
heroin between the conspiracy and customers. In addi-
tion to more heroin, Lund received a cash cut of the
sale after referring Goetzke to Stewart. It may be true
that Stewart refused to speak with or take money
directly from Lund because of their falling-out. But this
does not represent a withdrawal. Lund never fully termi-
nated his involvement in the scheme but rather con-
tinued his active—if strained—participation.
Lund’s counsel questioned how a conspirator can
legitimately extricate himself once an organization’s
leadership has expelled him. But even if this disagree-
ment could be considered an expulsion, we need not
entertain the hypothetical here. Withdrawal requires
affirmative steps by a conspirator to defeat or disavow
the conspiracy. Lund never confessed to authorities or
provided any notice to coconspirators of his purported
withdrawal. To the contrary, Lund’s efforts to contact
and work with Stewart indicate that he wanted back in
even as he continued to be held at arm’s length. Even
after Goetzke’s overdose, Lund continued to connect
new customers to the conspiracy, resulting in the death
of Knuth one month later, and so we affirm Lund’s sen-
tence.
Nos. 10-2173, 10-2176, 10-2355, 27
11-1024 & 11-1510
b. No Clear Error in Finding That Lawler Gave
Fatal Doses to Topczewski
Lawler claims that the district court wrongly deter-
mined that she provided Jeffrey Topczewski with the
heroin that killed him. In reaching its conclusion, the
trial court relied in part on portions of a presentence
report compiled from police interviews with Jeffrey
Topczewski’s sister Jennifer and a friend, Kallie
Klappa. Lawler contends that Jennifer Topczewski and
Klappa’s accounts were inconsistent because initially
they did not inculpate Lawler and they only implicated
her in exchange for dramatic sentencing reductions from
the government. Lawler also contends that the district
court should not have solely relied on the representa-
tions in the presentence report without evaluating the
witnesses’ sworn in person testimony.
In addition to the testimony of Jennifer and Klappa,
there are two independent sources of evidence that
Lawler does not rebut. First, Lawler admitted that she
was providing heroin to Jeffrey Topczewski a few days
before his death. Second, telephone records corroborate
that Lawler sold the fatal doses of heroin to Jeffrey the
night before he died. These records show a call from
Jeffrey’s residence to Jennifer, followed by a call from
his residence to Lawler. Later, Lawler dialed Jeffrey’s
home phone. This evidence corroborates the presentence
report’s account that Jeffrey asked Jennifer for Lawler’s
phone number to secure heroin that night. Lawler re-
turned the call to complete the sale.
28 Nos. 10-2173, 10-2176, 10-2355,
11-1024 & 11-1510
Lawler is correct that Jeffrey had other sources who
could have given him heroin and that the telephone
records are not conclusive proof of a drug sale. But the
doubts Lawler raises do not rise to the level of clear
error. The evidence in the record is sufficient to support
a finding by preponderance of the evidence that the
“death resulting” enhancement applies to Lawler. There-
fore we affirm Lawler’s sentence.
B. Stewart’s Guilty Plea was Voluntary and his Sen-
tence was Reasonable
Stewart challenges the voluntariness of his guilty plea
as well as his 300-month sentence. Both challenges are
without merit.
A guilty plea must be entered knowingly and voluntarily
in order to be valid. To ensure that a guilty plea is know-
ing, Federal Rule of Criminal Procedure 11(b) requires
that a district court “inform the defendant of, and deter-
mine that the defendant understands” the nature of the
charge to which the plea is offered, the possible sen-
tencing range, and the fact that, by pleading guilty,
the defendant waives certain constitutional rights. In
addition, a “court must address the defendant personally
in open court and determine that the plea is voluntary
and did not result from force, threats, or promises (other
than promises in a plea agreement).” Fed. R. Crim.
P. 11(b)(2).
Stewart’s guilty plea was knowing and voluntary.
Stewart signed a written plea agreement containing an
Nos. 10-2173, 10-2176, 10-2355, 29
11-1024 & 11-1510
unambiguous factual stipulation encompassing the gov-
ernment’s charges in the complaint. In the district
court’s Rule 11 colloquy, Stewart affirmed his under-
standing of the plea agreement, the factual stipulation,
and the penalties he faced, as well as the government’s
charges against him.
Stewart further contends that the district court
erred in calculating his guideline range by making him
accountable for three to ten kilograms of heroin without
holding an evidentiary hearing. This argument must
also fail because the drug quantity did not play a part
in the calculation of Stewart’s base offense level. The
presentence report calculated the offense level by
applying the enhancement for drug distribution offenses
resulting in death under § 2D1.1 of the Sentencing Guide-
lines. As discussed above, this enhancement applies
to Stewart and there were no other errors in the district
court’s calculation of a guideline range from 360 years
to life imprisonment. The district court appropri-
ately weighed sentencing factors, arrived at a reasonable
below-guideline sentence of 300 months, and we there-
fore affirm the district court’s determination.
III. CONCLUSION
For the reasons stated above, we V ACATE the sentences
of defendants Walker and Gladney and R EMAND for
the resentencing. We A FFIRM the sentences of each of the
other defendants.
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