                  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: April 4, 2014
                                 Filed: April 4, 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, for distribution of heroin resulting in death, and remands. This court’s
opinion of March 7 is vacated and this opinion substituted for it.

                                          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[.]



                                         -2-
      For you to find the Defendant guilty of the crime charged under Count
      Two the Government must prove all of these essential elements beyond
      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)


                                         -3-
(No. 12-7515), 2013 WL 5461835 at *33. The evidence was, therefore, insufficient
to support a conviction on Count 2, for distribution of heroin resulting in death.

          However, the evidence was sufficient to support a conviction on Count 2’s
lesser included offense—distribution of heroin.1 21 U.S.C. § 841(a)(1); Burrage,
134 S. Ct. at 887 n.3. This court remands for entry of judgment and resentencing on
this offense. See United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (“A
reviewing court has the authority to direct the entry of judgment on the lesser
included offense when it finds that those elements exclusive to the greater . . . offense
. . . are not supported by sufficient evidence to sustain the jury’s verdict, but that there
is sufficient evidence to sustain a finding of guilt on all elements of the lesser


       1
           At trial, the district court instructed:

              If your verdict under Count Two, the elements of which are listed
       in Instruction No. 10, is not guilty, or if, after all reasonable efforts, you
       are unable to reach a verdict on Count Two, you should record that
       decision on the verdict form and go on to consider whether Defendant
       is guilty of the crime of Distribution of Heroin under this instruction.
       The crime of Distribution of Heroin, a lesser-included offense of the
       crime charged in Count Two of the Indictment, has two 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.

       For you to find Defendant guilty of this crime, a lesser-included offense,
       under Count Two, the Government must prove both of these elements
       beyond a reasonable doubt; otherwise you must find the defendant not
       guilty of this crime, a lesser included offense, under Count Two.

Because the jury convicted on the greater offense, it did not reach the lesser included
offense.

                                               -4-
offense.”) (internal quotation marks omitted); United States v. Franklin, 728 F.2d
994, 1000-01 (8th Cir. 1984).

       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. At sentencing, the
district court increased Burrage’s offense level for both counts based on his
conviction under Count 2 for distribution of heroin resulting in death. Accordingly,
this court also remands for resentencing on Count 1. United States v. Feemster, 572
F.3d 455, 461 (8th Cir. 2009) (en banc) (“Procedural error includes failing to
calculate (or improperly calculating) the Guidelines range.”) (internal quotation
marks omitted); United States v. Thompson, 690 F.3d 977, 996 (8th Cir. 2012)
(“Where we reverse one of several of a defendant’s criminal convictions, we remand
for resentencing if we are uncertain whether [the district court] would have imposed
the same or somewhat lesser sentences for the remaining convictions as it did
originally.”) (internal quotation marks omitted).

                                      *******

       Burrage’s conviction on Count 2, for distribution of heroin resulting in death,
is reversed. The district court shall enter judgment on the lesser included offense of
distribution of a controlled substance in violation of 21 U.S.C. § 841(a)(1). Burrage’s
conviction on Count 1 is affirmed, and the case remanded for resentencing on both
counts.
                        ______________________________




                                         -5-
