United States v. Nossan ( 2011 )

RILEY, Chief Judge.

Renee Nossan pled guilty to distributing heroin in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Nossan appeals her 60-month sentence, arguing the district court¹ erred in (1) departing upward from the advisory United States Sentencing Guidelines (U.S.S.G. or Guidelines) range pursuant to U.S.S.G. § 5K2.1 (policy statement), and (2) imposing restitution. We affirm.

I. BACKGROUND

On January 31, 2009, Wallace Gunderson was found dead in his Spearfish, South Dakota, apartment. An autopsy indicated heroin toxicity caused Gunderson’s death. The autopsy also revealed Gunderson had cocaine in his system and had an enlarged heart that could have contributed to his death. A joint investigation was launched by the South Dakota Division of Criminal Investigation and the Spearfish Police Department (collectively, law enforcement) inquiring into the drug-related death of the 24-year-old.

Two searches of Gunderson’s apartment produced (1) a syringe filled with clear liquid, (2) a small balloon containing .41 grams of black tar heroin, (3) assorted drug paraphernalia, and (4) two padded envelopes addressed to Gunderson with two different Phoenix, Arizona, return addresses. One of the envelopes, with a return address of “R.N.” at “E. Mountain S.” was postmarked August 8, 2008. The other envelope had a return address of “Michelle Lamport” at “West River [S]treet” and was postmarked January 29, 2009.

Acting on confidential information that Nossan may have sent the drugs to Gunderson, law enforcement interviewed Nossan. Nossan explained that in December 2008 she and Gunderson purchased heroin in Phoenix. Gunderson carried the heroin home to Spearfish. Gunderson later contacted Nossan several times and asked her to send more heroin. Nossan admitted twice mailing heroin to Gunderson and also some cocaine because she knew Gunderson liked to mix the two drugs. Nossan described one package as “containing black tar heroin, a single balloon of cocaine, and syringes.” Nossan admitted using Michelle Lamport (Gunderson’s former girlfriend) as the sender’s name on one of the packages. Nossan claimed Gunderson arranged the drug purchases.

A grand jury charged Nossan with distributing heroin (Count 1) and cocaine (Count 2). The parties agreed to a preplea presentence investigation, resulting in a Presentence Investigation Report (PSR). The PSR recommended the district court hold Nossan responsible for .41 grams of heroin, setting Nossan’s base offense level at 12. Finding no adjustments applicable, the PSR calculated a total offense level of 12, a criminal history category of I, and an advisory Guidelines range of 10 to 16 months imprisonment. The PSR noted Gunderson’s death might warrant a departure pursuant to U.S.S.G. § 5K2.1. The PSR did not recommend restitution, stating “[bjesides society as a whole, there are no identifiable direct victims in this case.” Gunderson’s family later requested restitution for costs associated with Gunderson’s funeral and burial.

On June 16, 2010, at a combined plea and sentencing hearing, Nossan pled guilty to Count 1. As part of her plea, Nossan agreed to the following statement of factual basis: “On or about January, 2009, Ms. Nossan intentionally mailed a package to an address in Spearfish, SD, knowing the package contained heroin, a Schedule I controlled substance.” The district court dismissed Count 2 of the indictment on the motion of the government.

The government moved for an upward departure pursuant to U.S.S.G. § 5K2.1, arguing Nossan’s distribution of drugs resulted in Gunderson’s death. Over Nossan’s objection, the district court agreed with the government, determining Nossan’s case was not “within the heartland of what normally would fall within [the] advisory guideline range” because “[m]ost of these eases don’t result in somebody’s death and this one did.” The district court found Gunderson’s death “more likely than not ... resulted from the use of heroin sent to him by Nossan.” Having considered Nossan’s long-term, co-dependent relationship with Gunderson, her addiction, and the level of planning and knowledge demonstrated by her mailing of the packages with false information, the district court sentenced Nossan to 60 months imprisonment.

At the same hearing, Nossan contested restitution, arguing Gunderson was a participant in the crime and thus not a “victim” eligible for restitution under 18 U.S.C. § 3663(a)(1)(A). Concluding Gunderson was not a participant in the charged offense and was a victim, the district court imposed $22,626.40 in restitution to Gunderson’s family. This appeal followed.

II. DISCUSSION

A. Section 5K2.1 Departure

Nossan asks us to vacate her sentence and remand for resentencing within the 10- to 16-month advisory Guidelines range, claiming (1) the record did not justify an upward departure, (2) “the district court misapplied section 5K2.1,” and (3) the resulting 60-month sentence was substantively unreasonable.

We review the district court’s factual findings supporting a departure “for clear error and the reasonableness of a permissible departure for abuse of discretion.” United States v. Lighthall, 389 F.3d 791, 794 (8th Cir.2004). “A court abuses its discretion and imposes an unreasonable sentence when it fails to consider a relevant factor that should have received significant weight; gives significant weight to an improper or irrelevant factor; or considers only the appropriate factors but in weighing those factors commits a clear error of judgment.” United States v. Mousseau, 517 F.3d 1044, 1048-9 (8th Cir.2008) (quoting United States v. Rouillard, 474 F.3d 551, 556 (8th Cir.2007), abrogated on other grounds as recognized in United States v. Barrett, 552 F.3d 724, 726-27 (8th Cir.2009) (internal marks omitted)).

We first consider whether the district court clearly erred in determining Nossan’s conduct caused Gunderson’s death. Nossan claims “there is no way to connect the drugs in Gunderson’s system with the drugs Nossan mailed” and “[a]t best, the evidence showed a mere ‘possibility’ that the drugs in Gunderson’s system were the exact ones mailed by Nossan.” We disagree.

Section 5K2.1 permits a district court to “depart from an otherwise applicable Guidelines range if the evidence demonstrates, by a preponderance, that the defendant’s conduct resulted in death.” Mousseau, 517 F.3d at 1049. The autopsy “revealed the cause of [Gunderson’s] death was due to heroin toxicity” and that cocaine was also in Gunderson’s system. The only drugs found in the apartment where Gunderson overdosed were left over from the packages Nossan admittedly sent. Considering this evidence, the district court did not clearly err in finding the heroin Nossan mailed caused Gunderson’s death.

We next consider the reasonableness of the district court’s decision to depart upward to a 60-month sentence. Section 5K2.1 instructs:

Loss of life does not automatically suggest a sentence at or near the statutory maximum. The sentencing judge must give consideration to matters that would normally distinguish among levels of homicide, such as the defendant’s state of mind and the degree of planning or preparation. Other appropriate factors are whether multiple deaths resulted, and the means by which life was taken. The extent of the increase should depend on the dangerousness of the defendant’s conduct, the extent to which death or serious injury was intended or knowingly risked, and the extent to which the offense level for the offense of conviction ... already reflects the risk of personal injury. For example, a substantial increase may be appropriate if the death was intended or knowingly risked or if the underlying offense was one for which base offense levels do not reflect an allowance for the risk of personal injury, such as fraud.

Nossan contends her “state of mind and the absence of planning,” as well as “Gunderson’s own drug use history and his voluntary involvement in this incident strongly mitigate against a section 5K2.1 upward departure.” Further, Nossan argues, “It is beyond dispute that Nossan did not intend or knowingly risk Gunderson’s death.” Nossan maintains these factors “do[ ] not support the upward adjustment to 60 months given to Nossan by the district court.”

District courts considering an upward departure “should consider the dangerousness of the defendant’s conduct and the extent to which death or serious injury was an intended result or known risk.” Mousseau, 517 F.3d at 1049; see United States v. Merrival, 176 F.3d 1079, 1081-82 (8th Cir.1999) (citing § 5K2.1 and affirming an upward departure from a Guidelines sentence for involuntary manslaughter when the defendant’s “extremely dangerous” conduct in consuming large amounts of alcohol before operating a vehicle and then driving in excess of the speed limit caused two deaths). By twice sending heroin and cocaine to Gunderson, Nossan engaged in dangerous activities, disregarding the grave risks accompanying the use of the drugs. See Mousseau, 517 F.3d at 1049 (affirming a § 5K2.1 departure where the defendant recklessly gave “an unknown substance, suspected to be a narcotic, to a minor to ingest”); United States v. Sweger, 413 Fed.Appx. 451, 456 (3d Cir.2011) (affirming a § 5K2.1 departure when the fentanyllaced heroin sold by the defendant was at least a contributing cause of his customer’s death and it was not necessary to show the drug was the proximate cause).

Although Nossan did not intend Gunderson’s death, and her addiction and co-dependent relationship with Gunderson likely influenced her conduct, these circumstances are only mitigating factors to be considered in deciding whether and to what extent to depart upward. Such factors do not make Nossan ineligible for such a departure. See United States v. Diaz, 285 F.3d 92, 101 (1st Cir.2002) (“We see no basis for foreclosing departure under § 5K2.1 when a defendant puts into motion a chain of events that risks serious injury or death, even when an intent to harm is entirely absent and the defendant was not directly responsible for the death.”); United States v. Ihegworo, 959 F.2d 26, 29 (5th Cir.1992) (rejecting an argument that the defendant’s “conduct must meet all the section 5K2.1 factors before a court may use the section as a basis for an upward departure”). The district court gave due consideration to these mitigating circumstances in finding a sentence of 60 months was appropriate, as opposed to a longer sentence.

We also note Nossan was potentially subject to either a 20-year mandatory minimum sentence, see § 841(b)(1)(C) (“[I]f death or serious bodily injury results from the use of such substance [such person] shall be sentenced to a term of imprisonment of not less than 20 years or more than life.”); see also § 841(b)(1)(A); United States v. Krieger, 628 F.3d 857, 867 (7th Cir.2010), petition for cert. filed, — U.S.L.W.-(U.S. May 6, 2011) (No. 10-10392, 10A838) (explaining, once the district court found by a preponderance of the evidence that the prescription fentanyl patch the defendant gave to her friend caused the friend’s death, “the [sentencing] court was obliged to impose the [20-year] mandatory minimum sentence”), or a significantly higher advisory Guidelines range sentence of 235 to 293 months, see U.S.S.G. § 2Dl.l(a)(2) (providing that a defendant convicted under 21 U.S.C. § 841(b)(1)(A) is subject to a base offense level of 38 if “the offense of conviction establishes that death ... resulted from the use of the substance”), because Nossan’s distribution of heroin resulted in death. Neither the mandatory minimum nor the applicability of § 2Dl.l(a)(2) is at issue here, see Greenlaw v. United States, 554 U.S. 237, 240, 128 S.Ct. 2559, 171 L.Ed.2d 399 (2008), but they are instructive in demonstrating Nossan’s 5-year sentence was not substantively unreasonable. Cf. United States v. Kane, 639 F.3d 1121, 1137 n. 11 (8th Cir.2011) (“While this mandatory minimum [sentence] does not apply to [the defendant], it demonstrates the unreasonableness of the district court’s sentence.”).

We conclude the district court did not abuse its discretion and the sentence imposed was not substantively unreasonable.

B. Restitution

We next consider Nossan’s challenge to the restitution award. “Because [Nossan] challenges only the applicability of [18 U.S.C. § 3663], not the amount of restitution, we review the order of restitution de novo.” Mousseau, 517 F.3d at 1048. Under § 3663, a district court may order restitution to a victim of an offense, “or if the victim is deceased, to the victim’s estate,” when imposing a sentence for conviction under 21 U.S.C. § 841, unless the person was a participant in the offense. See 18 U.S.C. § 3663(a)(1)(A).

Nossan argues “Gunderson, by repeatedly asking for and accepting drugs from Nossan and then voluntarily using it [sic], was a participant in the transaction and guilty of a controlled substance offense himself.” Nossan contends Gunderson, as a purported participant, did not qualify as a victim and restitution to his estate was not permitted under the statute. We disagree.

As we have explained, “[t]he statutory exclusion of offense participants from restitution orders is not broadly applicable.” Mousseau, 517 F.3d at 1048. Though Gunderson may have been guilty of other crimes, e.g., drug possession, he did not commit the offense of distributing a controlled substance. He was therefore not a participant in the offense at issue and his estate was eligible for restitution. See id. (“For this prohibition to apply, the defendant must be convicted of one of the offenses enumerated in the statute, and the person to whom restitution is due must have committed the same offense.”).

Section 3668(a)(1)(A) also expressly authorizes “restitution to any victim of such offense” (emphasis added). A victim “means a person directly and proximately harmed as a result of the commission of an offense.” 18 U.S.C. § 3663(a)(2). The district court did not focus on the potential victims in Gunderson’s family who purportedly paid the costs of Gunderson’s funeral and burial, and who requested the restitution. We focus on the issues addressed by the district court.

We affirm the district court’s restitution order.

III. CONCLUSION

We affirm the judgment of the district court.

1 . The Honorable Karen E. Schreier, Chief Judge, United States District Court for the District of South Dakota.