United States v. Antrell Lewis , 895 F.3d 1004 ( 2018 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3046
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United States of America
Plaintiff - Appellee
v.
Antrell Desharron Lewis
Defendant - Appellant
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: June 15, 2018
Filed: July 13, 2018
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Before LOKEN, GRUENDER, and ERICKSON, Circuit Judges.
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ERICKSON, Circuit Judge.
Following a three-day bench trial, the district court1 found Antrell Desharron
Lewis guilty of one count of conspiracy to distribute a mixture or substance
containing heroin and furanylfentanyl resulting in death and serious bodily injury, in
1
The Honorable Leonard T. Strand, Chief Judge, United States District Court
for the Northern District of Iowa.
violation of 21 U.S.C. §§ 813, 841(a)(1), 841(b)(1)(C), and 846; and one count of
distribution of a mixture or substance containing heroin and furanylfentanyl resulting
in death and serious bodily injury, in violation of 21 U.S.C. §§ 813, 841(a)(1), and
841(b)(1)(C). The court sentenced Lewis to concurrent terms of 252 months’
imprisonment to be followed by concurrent three-year terms of supervised release.
On appeal, Lewis argues the evidence was insufficient to support the
convictions because (1) other individuals might have distributed the heroin laced with
furanylfentanyl that caused the death and/or serious bodily injuries; (2) the
government failed to establish “but-for” causation due to the intervening act of
redistribution by another individual; (3) no conspiracy existed between Lewis and the
individual who distributed the drugs to the victims; and (4) the government failed to
prove Lewis knowingly distributed an analogue of a controlled substance. Having
jurisdiction under 28 U.S.C. § 1291, we affirm.
I. Background
Joshua Manning testified that for about two months prior to March 2, 2016, he
had been obtaining heroin from Lewis in Dubuque, Iowa. Manning usually
conducted a couple of transactions with Lewis each week involving half gram or
gram quantities. He was sometimes joined by his friend Jeremy Nadermann on these
trips to Dubuque.
According to Manning’s testimony, on March 2, 2016, he contacted Lewis
about obtaining five grams of heroin on a “front.”2 Manning asked Nadermann to go
2
A “front” in the context of drug trafficking simply means payment for drugs
is made at a later date, presumably after smaller portions are sold and the proceeds
from the sales are collected.
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with him because Manning did not have a vehicle. Manning intended to give one or
two grams of heroin to Nadermann for letting him use a car to make the trip.
Nadermann and Manning joined by two other individuals, Michael Vanamburg
and Anthony Kelly, drove to Dubuque for the purpose of obtaining heroin. Manning
testified he gave Lewis $200 in proceeds from Manning’s sale of previously-fronted
heroin. Manning explained at trial that five grams was the largest quantity he had
received from Lewis in a single transaction. Nadermann confirmed during his
testimony that a meeting was arranged with Lewis on March 2, 2016, to obtain
heroin. Nadermann added that there was some discussion about the four of them
pooling their money together to obtain a larger amount of heroin, which they would
then divide into portions. According to Manning, Lewis agreed to front five grams
of heroin to him for $800.
After Manning received the heroin, Nadermann requested the group drive to
Jeremy Stierman’s residence in Dubuque. Manning testified that he and Nadermann
went inside Stierman’s apartment while Vanamburg and Kelly stayed in the car.
Manning weighed out one or two grams of heroin for Nadermann and a “50 bag”
(about 0.2 grams) for Vanamburg. Manning put the rest in a bag. After dividing the
heroin into portions, Manning and Nadermann returned to the vehicle to get high.
Manning gave Vanamburg the “50 bag.” Manning used a spoon and water to prepare
a liquid mixture and drew some of it into a syringe for his use, and then gave the
spoon to Kelly so he could use what was left.
Manning testified that he believed the substance he received from Lewis on
March 2, 2016, was more potent than what he usually received. He described feeling
a more intense high. Nadermann testified that he used some of the heroin Manning
received from Lewis that evening and experienced a “strong weird feeling” but did
not lose consciousness. In a very short period of time after using the heroin inside the
vehicle, Manning noticed that Kelly was unresponsive in the backseat. Manning and
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Nadermann attempted to revive Kelly. When they were unsuccessful, Manning took
his portion of heroin back to Stierman’s apartment and called 911. During the
emergency call, Nadermann advised Manning that Vanamburg, too, was
unresponsive.
Before emergency responders arrived on scene, Manning testified that he saw
Nadermann throw what Manning believed to be a syringe and Nadermann’s portion
of the heroin into a snowbank. Emergency responders, suspecting opiate overdoses,
testified they administered Narcan and revived both Kelly and Vanamburg. Once
alert, Kelly and Vanamburg were transported to the hospital in ambulances. Dr.
Joshua Pruitt, an emergency room physician, the deputy medical examiner for Linn
County, Iowa, and the chief medical examiner for Cedar County, Iowa, testified at
trial. Dr. Pruitt testified that, upon review of the evidence, it was his opinion that
Kelly was rendered unconscious because of an opiate overdose and that Kelly was at
serious risk of death without medical intervention. Dr. Pruitt also testified that
Vanamburg faced the same risks and that Vanamburg would not have been in that
situation without the use of an opiate. Dr. Pruitt noted that Vanamburg had been
prescribed Oxycodone, but discounted the possibility that Vanamburg’s overdose was
caused by the prescription medication, as he was using it as directed and the
frequency dosage would not cause the effects Vanamburg experienced. Dr. Pruitt
opined that Oxycodone was not the cause of Vanamburg’s overdose.
During the search of the vehicle, law enforcement officers found a metal spoon
containing some residue and a small cotton swab. The items were sent to the crime
lab for testing. The lab report indicated the substance on the spoon was heroin and
furanylfentanyl. In the rear passenger door pocket, officers found a small plastic
baggie with a white rock substance. The lab report indicated the substance in the
baggie contained a mixture of heroin and furanylfentanyl. The substance weighed
0.12 grams.
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Manning admitted he provided false information to law enforcement about the
details of Kelly’s and Vanamburg’s heroin usage because he did not want to go to
jail. Manning and Nadermann were not arrested and were allowed to leave the scene.
Manning testified that after they left, Nadermann went back to Stierman’s apartment
to get Manning’s heroin as well as the heroin and syringe Nadermann had thrown in
a snowbank. Nadermann denied that he went back to Stierman’s apartment.
Nadermann testified that he and Manning drove to the hospital to check on
Vanamburg and Kelly, but upon arriving decided not to go inside. According to
Nadermann, he then parted ways with Manning. Nadermann drove back to
Maquoketa while Manning stayed in Dubuque at his mother’s house.
Brian Koster, Stierman’s co-worker, testified at trial. He testified that during
the evening of March 2, 2016, he was at Stierman’s apartment. Stierman told Koster
that he intended to use drugs that night. Koster was not a drug user and did not see
Stierman use drugs that night. Koster was present at Stierman’s apartment when two
men arrived, went to the kitchen with Stierman for about 15 minutes, and then left.
Koster identified one of the men as Manning. Koster was also present when Manning
returned to the apartment and announced one of his friends had stopped breathing in
the car. Koster was concerned about getting into trouble for being in the presence of
drugs, so he asked Stierman if drugs were inside the apartment. Stierman confirmed
the presence of drugs. Koster told Stierman he should get rid of them. According to
Koster, Stierman left the apartment and came back about one minute later. Koster
and Stierman remained in the apartment while emergency responders and law
enforcement officers addressed the situation outside. About an hour after law
enforcement officers cleared the scene, Koster left Stierman’s apartment and drove
home.
In the early morning hours of March 3, 2016, Nadermann sent text messages
to Stierman. Stierman did not respond to any of the messages. Koster talked on the
phone to Stierman when Koster arrived home. He noticed Stierman’s state of mind
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was different and Stierman sounded intoxicated. At 2:44 a.m. on March 3, 2016,
almost immediately after the telephone conversation ended, Stierman sent a text
message to Koster that stated:
So I just wanted to get my story straight again in case jerry asks . . . as
far as cops go we’re in the clear im just hoping jerry isn’t suspicious and
at least ill have you as an alibi . . . just like we talked about me and you
were havin a few beers after work when some random dudes just
knocked on my door . . . call me when you can.
Koster testified that “jerry” was Stierman’s landlord and he was also Koster’s
landlord.
At 2:07 p.m. on March 3, Stierman’s father arrived at Stierman’s apartment to
pick up Stierman and take him to work, as they worked at the same manufacturing
company and Stierman’s father often gave Stierman a ride to work. When Stierman
did not come out, Stierman’s father drove to work. He became concerned when he
learned Stierman did not show up for work. He called Stierman’s sister during his
break around 7:00 p.m. She drove to Stierman’s apartment and found Stierman dead
inside his apartment.
Dubuque County Sheriff’s Officer Adam Williams testified that a baggie
containing a substance was found in a kitchen cabinet in Stierman’s apartment and
a small amount of white powder was found on the kitchen counter. A lab report
identified the baggie contents as 0.14 grams of furanylfentanyl and heroin. The
powder on the counter consisted of furanylfentanyl.
Manning testified that the only drugs in his possession on March 2-3, 2016,
were those he had obtained from Lewis. Manning acknowledged that Nadermann had
“a little bit” of heroin with him when Nadermann picked Manning up, but that the
group had stopped during the trip and used Nadermann’s heroin before meeting
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Lewis. Manning testified that he received a call from Lewis a couple days later
asking for the money for the heroin that had been fronted. Manning told Lewis that
he did not have the money and never paid Lewis for the heroin.
Dr. Julia Goodin, Chief Medical Examiner for the State of Tennessee, who
previously held the same position for the State of Iowa, performed an autopsy on
Stierman. She offered her expert opinion at trial that furanylfentanyl was the cause
of Stierman’s death based on the toxicology report, her autopsy findings, and
evidence gathered from Stierman’s apartment. Because Stierman’s urine was
presumptively positive for opiates, Dr. Goodin could not rule out the possibility that
another opiate was involved as well. Dr. Goodin testified at trial that it was her
opinion that Stierman would not have died if he had not used furanylfentanyl.
II. Discussion
Lewis contends the evidence was insufficient to sustain the convictions. He
raises several arguments, but his main argument focuses on whether the district court
erred when it convicted him on the charged offenses because at most he was guilty
of distributing heroin, for which the death/serious bodily injury sentencing
enhancement found in 21 U.S.C. §841(b)(1)(C) would not apply. We consider each
of Lewis’s arguments in turn.
“We review the sufficiency of the evidence de novo, viewing evidence in the
light most favorable to the government, resolving conflicts in the government’s favor,
and accepting all reasonable inferences that support the verdict.” United States v.
Trejo, 831 F.3d 1090, 1093 (8th Cir. 2016) (quoting United States v. Washington,
318 F.3d 845, 852 (8th Cir. 2003)) (internal quotation omitted). “Reversal is
appropriate only where a reasonable [fact finder] could not have found all the
elements of the offense beyond a reasonable doubt.” Id. at 1093–94 (quoting United
States v. Armstrong, 253 F.3d 335, 336 (8th Cir. 2001)) (internal quotation omitted).
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Lewis contends the evidence failed to establish a conspiracy between Manning
and him because Manning had no intention of paying for the drugs. It is immaterial
whether Manning repaid Lewis or intended to repay Lewis. “To convict a defendant
of conspiracy to distribute drugs, the government must prove that there was an
agreement to distribute drugs, that the defendant knew of the agreement, and that the
defendant intentionally joined in the agreement.” United States v. Chavez-Alvarez,
594 F.3d 1062, 1066 (8th Cir. 2010) (citing United States v. Benitez, 531 F.3d 711,
716 (8th Cir. 2008)). “An agreement to join a conspiracy need not be explicit and can
be inferred from the facts of the case.” United States v. Davis, 826 F.3d 1078, 1081
(8th Cir. 2016) (citing United States v. Slagg, 651 F.3d 832, 840 (8th Cir. 2011)).
There is overwhelming evidence in the record establishing that Lewis and
Manning were engaged in a heroin trafficking conspiracy. Manning testified that he
had been receiving heroin from Lewis for approximately two months. Manning paid
Lewis $200 from a previously fronted drug transaction when he obtained the five
grams of heroin that gave rise to the charges in this case. Overwhelming evidence
established that Lewis distributed heroin to Manning on March 2, 2016. Lewis
agreed to front the drugs to Manning in return for $800. The charged offense was a
conspiracy to distribute drugs, not to sell them. There was sufficient evidence for the
district court to conclude that Lewis knowingly and voluntarily joined a conspiracy
to distribute heroin, and he shared a common purpose with Manning and others.
Lewis’s identification of evidence that weighs against the verdicts and his
claim that Manning provided “self-serving” testimony are arguments that go to the
district court’s credibility determinations and weight to be given the evidence. “[W]e
will not disturb the district court’s reasoned credibility determinations.” United
States v. Bowie, 618 F.3d 802, 814 (8th Cir. 2010).
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The court next turns to the focal point of Lewis’s appeal, whether the
sentencing enhancement found in § 841(b)(1)(C) is sustainable on the record. Lewis
contends that the government failed to prove whether it was the heroin,
furanylfentanyl, or combination of heroin and furanylfentanyl that caused the
overdoses and death. Expert testimony provided by medical professionals established
beyond a reasonable doubt that Vanamburg and Kelly would not have overdosed
“but-for” the use of furanylfentanyl and that Stierman would not have died “but-for”
the use of furanylfentanyl.
The government was not required to prove that Lewis knowingly distributed
an analogue of a controlled substance. We have repeatedly explained that “[a]
defendant does ‘not need to know the exact nature of the substance in [his]
possession, only that it was a controlled substance of some kind.’” United States v.
Anwar, 880 F.3d 958, 967 (8th Cir. 2018) (quoting United States v. Morales, 813
F.3d 1058, 1068 (8th Cir. 2016)). Section 841(b)(1)(C) is a sentencing enhancement,
not a separate offense. To sustain a conviction under 21 U.S.C. § 841(a)(1) with a
serious bodily injury or death enhancement under § 841(b)(1)(C), the government
must prove: “(i) knowing or intentional distribution of [an illicit drug], . . . and (ii)
[serious bodily injury or] death caused by (‘resulting from’) the use of that drug.”
Burrage v. United States, 571 U.S. 204, 210 (2014).
The Supreme Court explained that “where use of the drug distributed by the
defendant is not an independently sufficient cause of the victim’s death or serious
bodily injury, a defendant cannot be liable under the penalty enhancement provision
of § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” Id. at
218–19. Following Burrage, the statutory sentencing enhancement in § 841(b)(1)(C)
may be proved in two ways: (1) “but-for” cause, or (2) independently sufficient cause.
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There is sufficient evidence in this case to conclude that the government
proved that Lewis knowingly and intentionally distributed an illicit drug and, under
the facts of this case, use of that drug was an independently sufficient cause of the
overdoses and death. Accord United States v. Allen, 716 F.App’x 447, 450–51 (6th
Cir. 2017) (where victim was found with a “cocktail of drugs” in her system, the state
medical examiner’s testimony combined with the close proximity of a spoon
containing fentanyl was sufficient for the jury to conclude that fentanyl was an
independently sufficient cause of death). At a minimum, the evidence established
that, without the incremental effect of furanylfentanyl in the heroin, Stierman would
have lived and Kelly and Vanamburg would not have suffered serious bodily injury.
The statutory requirements for the sentencing enhancement set forth in § 841(b)(1)(C)
have been met.
Finally, Lewis argues that even if it was proven that he provided the heroin to
Manning, who then supplied it to Vanamburg, Kelly, and Stierman, the redistribution
constitutes an intervening cause of the injuries and death for which Lewis cannot be
held responsible. Nothing in Burrage or the plain language of the statute limits
responsibility to only the last person to distribute the drug before the harm occurs.
III. Conclusion
For the foregoing reasons, the judgment of the district court is affirmed.
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