     Case: 17-40416      Document: 00514933420         Page: 1    Date Filed: 04/29/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit


                                    No. 17-40416
                                                                                   FILED
                                                                               April 29, 2019
                                  Summary Calendar
                                                                              Lyle W. Cayce
                                                                                   Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

JOHN MATTHEW COCKRELL,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:14-CV-175


Before DAVIS, GRAVES, and HO, Circuit Judges.
PER CURIAM: *
       John Matthew Cockrell, federal prisoner # 34574-077, was convicted of
conspiracy to possess with intent to distribute 100 grams or more of a mixture
or substance containing a detectable amount of heroin, which resulted in
serious bodily injury. After the district court denied Cockrell’s 28 U.S.C. § 2255
motion, a certificate of appealability (COA) was granted on several issues:
(1) whether Cockrell was convicted based on insufficient evidence or a non-


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-40416    Document: 00514933420     Page: 2   Date Filed: 04/29/2019


                                 No. 17-40416

existent offense in light of Burrage v. United States, 571 U.S. 204 (2014);
(2) whether the district court erred by finding sufficient evidence to establish
serious bodily injury under a “but-for” standard; (3) whether the jury made a
drug quantity finding that would result in the sentence imposed being within
the correct statutory range; and (4) whether Cockrell’s claims were
procedurally defaulted because they had not been raised on direct appeal.
      In an appeal of the denial of a § 2255 motion, we conduct a de novo review
of the district court’s legal determinations and review its factual findings for
clear error. United States v. Cavitt, 550 F.3d 430, 435 (5th Cir. 2008). We
review “sufficiency-of-the-evidence challenges to determine whether any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Bass, 310 F.3d 321, 325 (5th Cir.
2002) (internal quotation marks and footnote omitted).
      In Burrage, the Court held 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, 571 U.S. at 218-19. The Court
explained that conduct may constitute a but-for cause “if the predicate act
combines with other factors to produce the result, so long as the other factors
alone would not have done so – if, so to speak, it was the straw that broke the
camel’s back.” Id. We have held that Burrage applies retroactively to cases on
collateral review. Santillana v. Upton, 846 F.3d 779, 784 (5th Cir. 2017).
      As the district court found, two victims in Cockrell’s case became
unconscious shortly after injecting heroin from Cockrell, there was not any
significant time lapse that might have attenuated the effect of the heroin, and
medical personnel testified that the victims immediately responded to the



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                                  No. 17-40416

administration of Narcan, which only counteracts the effect of opiate drugs
such as heroin. In his brief, Cockrell focuses on the absence of expert medical
testimony and the lack of medical testing of the victims, which he asserts would
have demonstrated that the victims also were using other drugs. He argues
that the Government’s witnesses were never asked if heroin alone could have
caused the victims’ overdoses, which would have established whether the
heroin was the but-for cause of the overdoses.
      Cockrell has misinterpreted the requirement for but-for causation set
forth in Burrage. The Court explained that, even if other factors have some
role in causing the result, the defendant’s conduct will be a but-for cause if the
result in question would not have happened without such conduct.              See
Burrage, 571 U.S. at 211. Thus, even if there was evidence that the victims
had used or were using other drugs or alcohol, so long as those other drugs or
alcohol alone would not have triggered an overdose, a showing that the heroin
triggered the victims’ overdoses is sufficient. In the instant case, there was
ample evidence that the victims overdosed shortly after using heroin provided
by Cockrell and that they recovered after being given Narcan. We conclude
that a rational trier of fact could have found that Cockrell’s heroin triggered
the victims’ overdoses and, thus, that it was the but-for cause.
      Therefore, we conclude Cockrell was not convicted of a non-existent
offense and the evidence was sufficient under a “but-for” standard of causation.
We find it unnecessary to address the remaining COA issues.
      AFFIRMED.




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