December 16, 2015.
from the United States District Court for the Eastern
District of Wisconsin. No. 08-CR-197-14-JPS -- J.P.
United States of America, Plaintiff - Appellee: Erica N.
O'Neil, Attorney, Office of The United States Attorney,
Jean C. Lawler, Defendant - Appellant: Kathleen M. Quinn,
Attorney, Milwaukee, WI.
MANION, KANNE, and WILLIAMS, Circuit Judges.
Williams, Circuit Judge.
Lawler pleaded guilty to distributing heroin and conspiring
to possess heroin with the intent to distribute it. The
district court found, by a preponderance of the evidence,
that Lawler sold the heroin that killed one of the
conspiracy's customers. On that basis, in determining
Lawler's Guidelines-recommended sentence, the court
followed U.S.S.G. § 2D1.1(a)(2), which applies if "
the offense of conviction establishes that death ... resulted
from the use of the [heroin]." That was erroneous.
Lawler's " offense of conviction"
--distributing heroin and conspiring to possess heroin with
the intent to distribute it--does not " establish"
that a death resulted. Therefore, we vacate Lawler's
sentence and remand.
facts of this case were fully described in United States
v. Walker, 721 F.3d 828, 831-33 (7th Cir. 2013).
Relevant here, Lawler was charged along with thirty other
defendants in a single-count indictment that described a
large-scale heroin-distribution conspiracy that led to the
overdose deaths of five people. " Lawler was a low-level
member of the conspiracy" who " purchased
relatively small quantities of heroin ... to resell to others
and for personal use." Id. at 831.
pleaded guilty to distributing heroin and conspiring to
possess heroin with the intent to distribute it, in violation
of 18 U.S.C. § 2 and 21 U.S.C. § § 841(a)(1),
(b)(1)(A), and 846. The applicable statutory sentencing range
is 10 years to life. 21 U.S.C. § 841(b)(1)(A). The
statutory minimum is increased to 20 years if death results
from the use of the heroin. Id. The Sentencing
Guidelines also recommend a longer sentence when death
results, increasing the base offense level if " the
offense of conviction establishes" that death resulted.
U.S.S.G. § 2D1.1(a)(2).
plea agreement stated that the government would argue that
Lawler was subject to both the 20-year statutory minimum and
the increased base offense level because she sold the heroin
that led to a particular death--that of Jeffrey Topczewski.
Lawler disagreed and reserved her right to contest those
issues. At sentencing, the district court found, by a
preponderance of the evidence, that Lawler sold the heroin
that killed Topczewski, so it applied the 20-year statutory
minimum. We affirmed because the court's
finding--applying a preponderance-of-the-evidence
standard--was supported by sufficient evidence. See
Walker, 721 F.3d at 841-42. The Supreme Court
vacated Lawler's sentence in light of Alleyne v.
United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013),
which held that any fact that increases the statutory minimum
sentence must be found beyond a reasonable doubt. Lawler
v. United States, 134 S.Ct. 2287, 189 L.Ed.2d 169 (2014)
remand, the government conceded that the 20-year statutory
minimum did not apply because it had not been proven beyond a
reasonable doubt that Lawler sold the heroin that killed
Topczewski. But the government maintained that Lawler's
base offense level should be 38, under U.S.S.G. §
2D1.1(a)(2). The district court agreed. That decision had a
significant consequence: Lawler's ...