                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 11-3602
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                               Marcus Andrew Burrage

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                   for the Southern District of Iowa - Des Moines
                                   ____________

                              Submitted: March 3, 2014
                                Filed: March 7, 2014
                                   ____________

Before BYE, BEAM, and BENTON, Circuit Judges.
                          ____________

BENTON, Circuit Judge.

       This case is on remand from the Supreme Court of the United States. Burrage
v. United States, 134 S. Ct. 881 (2014). A jury convicted Marcus Andrew Burrage
of distribution of heroin and distribution of heroin resulting in death, in violation of
21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced him to 20 years’
imprisonment, consistent with § 841(b)(1)(C)’s prescribed minimum. Burrage
appealed, challenging, among other things, the jury instructions for § 841(b)(1)(C).
This court affirmed. United States v. Burrage, 687 F.3d 1015 (8th Cir. 2012). In
light of the Supreme Court’s ruling in Burrage, this court reverses the conviction on
Count 2 and remands.

                                          I.

       Burrage objected to the jury instructions for 21 U.S.C. § 841(b)(1)(C), a
penalty provision increasing the minimum sentence for distribution of heroin “if death
or serious injury results from the use of such substance.” (emphasis added). The
district court instructed the jury:

                         INSTRUCTION NO. 10
               ELEMENTS OF THE OFFENSE—COUNT TWO—
             DISTRIBUTION OF HEROIN RESULTING IN DEATH

      The crime of distributing heroin resulting in death, as charged in Count
      Two of the Indictment, has three essential elements, which are:

             1. On or about April 14, 2010, the Defendant intentionally
             distributed heroin; and

             2. At the time of the transfer, the Defendant knew that it was
             heroin; and

             3. A death resulted from the use of the heroin.

      For you to find that a death resulted from the use of heroin, the
      Government must prove, beyond a reasonable doubt, that the heroin
      distributed by the Defendant was a contributing cause of Joshua
      Banka’s death. A contributing cause is a factor that, although not the
      primary cause, played a part in the death[.]

      For you to find the Defendant guilty of the crime charged under Count
      Two the Government must prove all of these essential elements beyond

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      a reasonable doubt; otherwise you must find the Defendant not guilty of
      this crime under Count Two.

(emphasis added). The district court rejected Burrage’s proposed jury instruction that
the “results from” language in § 841(b)(1)(C) requires a showing of proximate cause.
The district court also denied Burrage’s motion for judgment of acquittal, which
argued that the death did not “result from” heroin use because there was no evidence
that heroin was a but-for cause of death. Burrage appealed.

      Relying on United States v. Monnier, 412 F.3d 859 (8th Cir. 2005), this court
held that the district court did not err by using “contributing cause” language to
define the statute’s causation element. Burrage, 687 F.3d at 1020-21, citing
Monnier, 412 F.3d at 862. As to proximate cause, this court held that Burrage’s
proposed instructions “d[id] not correctly state the law” because “a showing of
‘proximate cause’ is not required under § 841(b)(1).” Id. at 1020, quoting United
States v. McIntosh, 236 F.3d 968, 972-73 (8th Cir. 2001).

      On certiorari, the Supreme Court reversed Burrage’s conviction on Count 2,
holding that

      at least 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 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause
      of the death or injury.

Burrage, 134 S. Ct. at 892. The Court stated that “the Government concedes that
there is no ‘evidence that [the victim] would have lived but for his heroin use.’” Id.,
citing Brief for United States at 33 Burrage v. United States, 134 S. Ct. 881 (2014)
(No. 12-7515), 2013 WL 5461835 at *33. The evidence was, therefore, insufficient
to support a conviction on Count 2, and the government may not retry Burrage on this


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count. See Burks v. United States, 437 U.S. 1, 11 (1978) (“The Double Jeopardy
Clause forbids a second trial for the purpose of affording the prosecution another
opportunity to supply evidence which it failed to muster in the first proceeding.”);
Palmer v. Grammer, 863 F.2d 588, 592 (8th Cir. 1988) (“[W]hen a defendant
challenging his conviction on appeal contends both that the trial was infected by error
and that the evidence was constitutionally insufficient, the court may not, consistent
with the rule of Burks v. United States, ignore the sufficiency claim, reverse on
grounds of trial error, and remand for retrial. Because the first trial has plainly ended,
retrial is foreclosed by the Double Jeopardy Clause if the evidence fails to satisfy the
[constitutional standard for sufficiency].”) (internal quotation marks omitted).

      This court rejects Burrage’s challenges to his conviction on Count 1 for the
reasons stated in the prior opinion. Burrage, 687 F.3d at 1021-26.

                                        *******

       Burrage’s conviction on Count 2 is reversed. Burrage’s conviction on Count
1 is affirmed. This case is remanded for proceedings consistent with this opinion.
                       ______________________________




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