                  Cite as: 574 U. S. ____ (2014)           1

                      ALITO, J., concurring

SUPREME COURT OF THE UNITED STATES
        PAUL H. VOLKMAN v. UNITED STATES
   ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED 

    STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

             No. 13–8827. Decided October 20, 2014


   The motion of petitioner for leave to proceed in forma
pauperis and the petition for a writ of certiorari are grant-
ed. The judgment is vacated, and the case is remanded to
the United States Court of Appeals for the Sixth Circuit
for further consideration in light of Burrage v. United
States, 571 U. S. ___ (2014).
   JUSTICE ALITO, with whom JUSTICE THOMAS joins,
concurring.
   A jury convicted petitioner, a medical doctor, of four
counts of unlawful distribution of a controlled substance
leading to death. He was sentenced to four consecutive
life sentences for those four deaths. Without the benefit of
Burrage v. United States, 571 U. S. ___ (2014), the Sixth
Circuit upheld the jury’s verdict. Burrage holds that “at
least where use of the drug distributed by the defendant is
not an independently sufficient cause of the victim’s
death,” conviction is improper “unless such use is a but-for
cause of the death or injury.” Id., at ___ (slip op., at 14–
15). But-for causation exists where the controlled sub-
stance “combines with other factors to produce” death, so
long as death would have not occurred “without the in-
cremental effect” of the controlled substance. Id., at ___
(slip op., at 7). Because the Sixth Circuit did not focus on
but-for causation, I join the Court’s order to vacate and
remand.
   I write separately, however, to highlight the nature of
petitioner’s burden going forward. Petitioner concedes
that even “[w]ithout having the benefit of this Court’s
Burrage opinion, the district court nonetheless gave the
2               VOLKMAN v. UNITED STATES

                     ALITO, J., concurring

jury a ‘but-for’ causation instruction.” Pet. for Cert. 21.
Even on petitioner’s theory, therefore, the question is
whether the Sixth Circuit should have “set aside the jury’s
verdict on the ground of insufficient evidence.” Ibid. As
petitioner acknowledges, this means that he can prevail
only by showing that no rational trier of fact could have
found, as the jury did here, “that death would not have
occurred in these individuals but for the use of the oxyco-
done prescribed.” Ibid. (citing Jackson v. Virginia, 443
U. S. 307, 319 (1979)).
   The jury reached its verdict after a 35-day trial. See 736
F. 3d 1013, 1019 (CA6 2013). During that trial jurors
learned much about the deaths of petitioner’s patients.
For instance, petitioner prescribed one opiate (oxycodone)
and two other drugs (diazepam and alprazolam) to Steven
Craig Hieneman. Id., at 1027. Hieneman “died twelve
hours” later and was “found dead with the very drugs the
doctor prescribed.” Id., at 1027–1028. The jury also heard
from a deputy coroner that “Hieneman died an opiate-
induced death.” Id., at 1027. The question on remand is
whether evidence of this sort, if credited, would allow a
rational jury to conclude that Hieneman would not have
died but for the oxycodone dispensed by petitioner. That
same question will have to be answered for each of peti-
tioner’s patients.
   In short, nothing in today’s order should be understood
as suggesting that petitioner is entitled to acquittal.
Petitioner’s convictions should be affirmed if the Sixth
Circuit finds that the evidence from trial—“considered in
the light most favorable to the prosecution,” Jackson,
supra, at 319—shows that a rational jury could have found
as this jury, in fact, did. The Court’s order, moreover, has
no bearing on petitioner’s other convictions for conspiracy
to unlawfully distribute a controlled substance, unlawful
distribution of a controlled substance, maintaining a drug-
involved premises, and possession of a firearm in further-
ance of a drug-trafficking offense.
