                  United States Court of Appeals
                              For the Eighth Circuit
                          ___________________________

                                  No. 11-3736
                          ___________________________

                               United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Samuel B. Ford

                        lllllllllllllllllllll Defendant - Appellant
                                        ____________

                      Appeal from United States District Court
                  for the Northern District of Iowa - Cedar Rapids
                                   ____________

                              Submitted: April 23, 2014
                                 Filed: May 2, 2014
                                  ____________

Before LOKEN, SMITH, and BENTON, Circuit Judges.
                           ____________


SMITH, Circuit Judge.

       This case is before us on remand from the Supreme Court of the United States.
On June 20, 2013, we affirmed Samuel Ford's convictions for knowingly and
intentionally distributing a mixture of heroin to Joseph Scolaro resulting in Scolaro's
death, with the distribution occurring within 1,000 feet of a school, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(C), 851, and 860(a) ("Count 1"), and knowingly and
intentionally distributing a mixture containing heroin and a mixture containing
cocaine base, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 851 ("Count
2"). United States v. Ford, 717 F.3d 612 (8th Cir. 2013), rev'd, 134 S. Ct. 1274, 1275
(2014). In affirming Ford's conviction on Count 1, we held that "the government
presented sufficient, credible evidence to support Ford's conviction of distributing
heroin that resulted in Scolaro's death and did so within a prohibited proximity of a
school." Id. at 619. In making this determination, we concluded that "[b]ased on all
the testimony before it, the jury could have rationally concluded that Scolaro died as
a result of the ingestion of multiple narcotics, including heroin distributed to him by
Ford." Id. at 621 (emphasis added).

       Ford petitioned for writ of certiorari. On February 24, 2014, the Supreme Court
granted certiorari, vacated our judgment, and remanded for reconsideration in light
of Burrage v. United States, 134 S. Ct. 881 (2014). In Burrage, the Supreme Court
"h[e]ld 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." Id. at 892.

        Having reconsidered Ford's appeal as the Supreme Court directed, we again
affirm Ford's conviction on Count 2 but reverse his conviction on Count 1 for the
government's failure to prove that the drug that Ford distributed to Scolaro was a
"but-for" cause of his death. We reinstate all but Part II.A. of our prior opinion
concerning whether the heroin that Ford distributed to Scolaro resulted in his death,
as it is the only section that Burrage affects. See Ford, 717 F.3d at 619–21. Because
the jury unanimously found that the distribution of heroin took place within 1,000
feet of the real property comprising a school, see 21 U.S.C. § 841(a)(1) and 860(a),
we direct the district court to enter judgment on the lesser included offense of
distribution of a controlled substance within 1,000 feet of a protected location. We
remand for resentencing consistent with this opinion.

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                                    I. Discussion
       As the Supreme Court explained in Burrage, to sustain a guilty verdict on
Count 1, the government had to prove "two principal elements: (i) knowing or
intentional distribution of heroin, § 841(a)(1),1 and (ii) death caused by ('resulting
from') the use of that drug, § 841(b)(1)(C)." 134 S. Ct. at 887.

      In our first consideration of Ford's appeal of his conviction on Count 1, we
acknowledged that "[t]he more difficult element for the government to prove was that
Scolaro's death resulted from the heroin that Ford distributed." Ford, 717 F.3d at 619.
In analyzing this element, our primary focus was whether evidence existed "that
Scolaro actually injected the heroin or otherwise put it into his body." Id. at 620. We
ultimately determined that the government proved this element, explaining:

      [T]he narcotic originally alleged to have been ingested—heroin—was
      absent in its original form from the decedent's system. A heroin
      by-product, morphine, was present, but tests regarding whether that
      morphine resulted from the break down of heroin were inconclusive.
      Based on all the testimony before it, the jury could have rationally
      concluded that Scolaro died as a result of the ingestion of multiple
      narcotics, including heroin distributed to him by Ford.

Id. at 621 (emphasis added).

       But the Supreme Court instructed in Burrage that "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." 134 S. Ct. at 892. In Burrage, "[t]wo medical experts testified

      1
       To the extent that Ford challenges this element of Count 1, we reincorporate
our prior analysis finding that sufficient evidence exists that Ford provided heroin to
Scolaro the night of his death. See Ford, 717 F.3d at 619.

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at trial regarding the cause of [the victim's] death." Id. at 885. One of the experts
opined that "heroin 'was a contributing factor' in [the victim's] death," meaning that
"[t]he heroin . . . contributed to an overall effect that caused [the victim] to stop
breathing." Id. at 885–86. The other expert "described the cause of death as 'mixed
drug intoxication' with heroin, oxycodone, alprazolam, and clonazepam all playing
a 'contributing' role." Id. at 886. This expert "could not say whether [the victim]
would have lived had he not taken the heroin, but observed that [the victim's] death
would have been '[v]ery less likely.'" Id.

       The Court held that the mandatory-minimum provision does not apply "when
use of a covered drug supplied by the defendant contributes to, but is not a but-for
cause of, the victim's death or injury." Id. at 885. The Court declined to adopt the
government's permissive interpretation of "results from" to mean that "use of a drug
distributed by the defendant need not be a but-for cause of death, nor even
independently sufficient to cause death, so long as it contributes to an aggregate force
(such as mixed-drug intoxication) that is itself a but-for cause of death." Id. at 890.
According to the Court, Congress could have written § 841(b)(1)(C) to make an act
or omission a cause-in-fact if it was a "substantial" or "controlling" factor in
producing death; however, Congress chose instead to use language that imports but-
for causality. Id. at 891.

      In the present case, "[t]he specimen inquiry listed the cause of death as
'polydrug toxicity, with methamphetamine being the major contributing drug.'" Ford,
717 F.3d at 615. The medical examiner, Dr. Julie Netser, "gave the cause of death as
'polydrug toxicity.'" Id. at 616. Dr. Netser later "qualified her prior statement of the
cause of Scolaro's death as 'polydrug toxicity, with methamphetamine being the major
contributing drug." Id. (emphasis added). She was

      "confident that the cause of death was the combination of multiple
      drugs." She explained, "I don't think I took into account the fact that

                                          -4-
      morphine, a benzodiazapine, which is alprazolam, and alcohol combined
      are a very lethal combination." Upon further research, she felt that the
      most significant drugs contributing to Scolaro's death were
      methamphetamine, morphine, alcohol, and Xanax. Dr. Netser stated,
      "[I]n doing more research, I think the combination of those other [three]
      drugs is a much more common cause of death in a multidrug toxicity
      than methamphetamine is." When asked whether "[her] opinion [was]
      that the morphine found in [Scolaro]'s system was a contributing factor
      to the death," she replied, "A contributing factor, yes." On
      cross-examination, Dr. Netser acknowledged that she could not say
      whether Scolaro would have died without the morphine in his system.

Id. at 616 (emphases added).

      A forensic toxicologist, Dr. George Behonick, "concluded that heroin could
have been the source of the morphine in Scolaro's blood and that a combination of the
drugs found in Scolaro's system contributed to Scolaro's death." Id. at 617 (emphasis
added). Finally, Ford's expert, Dr. Henry Carson, a pathologist, testified that
"methamphetamine was the major cause of death and that the presence of the
combination of morphine, codeine, Xanax, ethanol, and citalopram could also have
contributed to Scolaro's death." Id. at 617 (emphasis added).

       As stated in our prior opinion, the government proved only that "Scolaro died
as a result of the ingestion of multiple narcotics, including heroin distributed to him
by Ford." Ford, 717 F.3d at 621. In other words, the government proved only that the
heroin was a contributing factor to Scolaro's death, not that heroin was a but-for cause
of Scolaro's death. Under Burrage, this evidence is insufficient to sustain a conviction
under Count 1. 134 S. Ct. at 892.

       "However, the evidence was sufficient to support a conviction on [Count 1's]
lesser included offense—distribution of heroin [within 1,000 feet of a protected




                                          -5-
location]." United States v. Burrage, __F.3d__, 2014 WL 1356801, at *2 (8th Cir.
Apr. 4, 2014) (citing 21 U.S.C. § 841(a)(1); Burrage, 134 S. Ct. at 887 n.3)).2 We


      2
       The verdict form shows that the jury unanimously found that the distribution
of heroin took place within 1,000 feet of real property comprising a school. See 21
U.S.C. §§ 841(a)(1) and 860(a). In Instruction No. 14, the district court instructed the
jury:

           The crime of distributing a controlled substance, as charged in
      Count 1 of the Indictment, has two essential elements, which are:

            One, the defendant intentionally transferred a controlled
      substance, to wit: heroin; and

            Two, at the time of the transfer, the defendant knew that it was a
      controlled substance, to wit: heroin.

             If both of these essential elements have been proved beyond a
      reasonable doubt, then you must find the defendant guilty of the crime
      charged under Count 1; otherwise, you must find the defendant not
      guilty of the crime charged under Count 1.

      In Instruction No. 17, the district court instructed the jury:

             If you find the defendant guilty of the offense charged in Count
      1, you must determine whether the location at which the distribution of
      heroin took place was within 1,000 feet of the real property comprising
      a school. The 1,000-foot zone can be measured in a straight line from
      the school irrespective of actual pedestrian travel routes. The
      government does not have to prove that the defendant agreed, knew or
      intended that the offense would take place within 1,000 feet of a school.

We find that the jury's verdict and the accompanying instructions are sufficient to
direct the district court to enter an amended judgment on the lesser included offense
of distribution of a controlled substance within 1,000 feet of a protected location.


                                          -6-
therefore "remand[] for entry of judgment and resentencing on this offense." Id.
(citing 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 offense.")
(internal quotation marks omitted); United States v. Franklin, 728 F.2d 994, 1000–01
(8th Cir.1984)).

                                    III. Conclusion
       Accordingly, we reverse Ford's conviction with respect to Count 1, but affirm
in all other respects. The district court shall enter judgment on the lesser included
offense of distribution of a controlled substance within 1,000 feet of a protected
location. See 21 U.S.C. § 841(a)(1) and 860(a). We remand for resentencing
consistent with this opinion.
                        ______________________________




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