                         NONPRECEDENTIAL DISPOSITION
                 To be cited only in accordance with Fed. R. App. P. 32.1



                United States Court of Appeals
                                 For the Seventh Circuit
                                 Chicago, Illinois 60604

                                  Argued April 28, 2015
                                  Decided June 23, 2015

                                         Before

                        JOEL M. FLAUM, Circuit Judge

                        MICHAEL S. KANNE, Circuit Judge

                        ANN CLAIRE WILLIAMS, Circuit Judge

No. 14-3170

UNITED STATES OF AMERICA,                       Appeal from the United States District
     Plaintiff-Appellee,                        Court for the Eastern District of Wisconsin.

      v.                                        No. 12-CR-217

REBECCA JEAN HOLMAN,                            C. N. Clevert, Jr.,
     Defendant-Appellant.                       Judge.

                                       ORDER

       Rebecca Holman pleaded guilty to conspiring to distribute heroin, see 21 U.S.C.
§§ 846, 841(a)(1), and received a below-guidelines sentence of 36 months’ imprisonment.
She appeals her prison term, arguing that the district court erred by increasing her
sentence based on the death of a drug user who had bought heroin from her
coconspirator. Because the record does not support the district court’s finding that the
victim’s death was caused by any of Holman’s coconspirators, we vacate Holman’s
sentence and remand for further proceedings.

     Holman, now 49, developed severe rheumatoid arthritis when she was 39 and
became addicted to prescription pain killers. Six years after her diagnosis, prescription
No. 14-3170                                                                        Page 2

opiates became more difficult for her to obtain, and she began using heroin. To finance
her addiction, she started working with six other individuals to distribute heroin
throughout Waushara County (80 miles north of Madison).

       In April 2012, Waushara County resident Amalia Henschel died of a heroin
overdose. Wisconsin law enforcement investigated her death and uncovered the
drug-distribution ring run by Holman and her coconspirators. Wisconsin police
conducted a controlled purchase of heroin from Holman and then arrested her, and she
was charged in federal court with participating in a drug conspiracy involving one
kilogram or more of a mixture containing heroin, which caused a death, see 21 U.S.C.
§§ 846, 841(a)(1), (b)(1)(A). The “causing death” element from § 841(b)(1)(A) was later
dropped.

       Holman pleaded guilty to one count of conspiring to distribute heroin, see 21
U.S.C. §§ 846, 841(a)(1), (b)(1)(C). In the plea agreement, Holman admitted that certain
facts provided by the government were accurate, including a statement that her
codefendant Randy Lindgren had supplied Henschel with heroin before she died.

       A probation officer calculated Holman’s guidelines imprisonment range at 70 to
87 months, based on a total offense level of 27 and criminal-history category I. The total
offense level was not increased as a result of Henschel’s death. The PSR did describe the
death (noting that it was ruled a heroin overdose) and recounted an admission by
Lindgren that he had “supplied Ms. Henschel with a line of heroin earlier in the evening
before she was found dead.” Holman did not object to the inclusion of these facts in the
PSR.

       At sentencing, the district court imposed a below-range prison term of 36 months.
The court departed from the calculated range because, it explained, Holman was not a
leader in the conspiracy, she had cooperated with the government, and she “became
involved in distributing heroin in part because of [her] own addictions.” But the court
rejected Holman’s request for merely a probationary sentence, describing her offense as
“serious” because the conspiracy “ultimately resulted in the death of someone.” The
court based this factual finding on “the other hearings” it had conducted (presumably a
reference to the evidentiary hearing it had held on this issue before Lindgren’s
sentencing) and “the record as it generally stands.” “Unquestionably,” the court added,
“the Waushara community has been adversely impacted.” Holman did not object to the
mention of Henschel’s death in the PSR, so the court noted that it could not “ignore”
Henschel’s death unless it also ignored a portion of the PSR.
No. 14-3170                                                                            Page 3


       Around this same time, the government in its separate prosecution of Lindgren
moved to increase his sentence based on Henschel’s death, see U.S.S.G. § 2D1.1(a)(2).
Lindgren vigorously contested the motion. He admitted to giving Henschel heroin on
the day she died but argued that she ingested the fatal dose later that night, from a
different supplier. At an evidentiary hearing, he presented expert testimony that a small
dose of heroin—such as the one he provided—did not cause Henschel’s overdose. The
expert also testified that within 30 minutes of consumption of a lethal dose, Henschel
likely would have been asleep, “rapidly going into a coma” and “respiratory distress,”
and that she would have died within an hour. Yet the evidence also was undisputed that
Henschel walked to a bar an hour after taking the heroin that Lindgren supplied. Three
other witnesses testified that they heard or saw activity in the area that Henschel was
found several hours later—at 2:30 that morning.

      In April 2015, the district court denied the government’s motion in the Lindgren
proceedings, concluding that a factual basis did not exist for a finding that his heroin
caused Henschel’s death.

      Holman argues on appeal that the district court wrongly increased her sentence
based on an unsupported factual finding that Henschel’s death was caused by a
coconspirator.

       There is insufficient evidence in the record to support the district court’s factual
finding. Although the court was permitted to rely on the narrow uncontested
allegation—recounted in Holman’s PSR and plea agreement—that Lindgren provided
Henschel heroin on the day she died, see FED. R. CRIM. P. 32(i)(3)(A); United States v.
Brown, 716 F.3d 988, 993–94 (7th Cir. 2013); United States v. Aviles-Solarzano, 623 F.3d 470,
475 (7th Cir. 2010), the court went further and assumed that the heroin supplied by
Henschel “ultimately resulted in the death.” But no support for this assumption exists in
the record of Holman’s prosecution, and in Lindgren’s prosecution the district court
found the government’s evidence insufficient to show that Lindgren’s heroin caused the
overdose. A sentencing court may not rely on a false or unsupported assumption at
sentencing. See United States v. Halliday, 672 F.3d 462, 475 (7th Cir. 2012); United States v.
Bradley, 628 F.3d 394, 400 (7th Cir. 2010). The court’s factual findings here are in conflict
and irreconcilable, and the case must be remanded so that the record surrounding
Henschel’s death can be further developed or Holman’s sentence redetermined without
consideration of the death.
No. 14-3170                                                             Page 4

      Accordingly, we VACATE Holman’s sentence and REMAND for further
proceedings.
