                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 14-3748
                         ___________________________

                                    Dorian Ragland

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                       lllllllllllllllllllllRespondent - Appellee
                                       ____________

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

                               Submitted: April 9, 2015
                                 Filed: April 29, 2015
                                     [Published]
                                   ____________

     Before RILEY, Chief Judge, MELLOY and BENTON, Circuit Judges.
                                ____________

PER CURIAM.

       Dorian Ragland requests a certificate of appealability (COA) following the
district court’s denial of 28 U.S.C. § 2255 relief from his conviction and sentence for
distribution of heroin resulting in death in violation of 21 U.S.C. § 841(a)(1)
(prohibiting distribution of controlled substances), and (b)(1)(C) (if death or serious
bodily injury results from use of substance, defendant shall be sentenced to a term of
imprisonment of not less than 20 years or more than life). In Ragland v. United
States, 756 F.3d 597, 601-02 (8th Cir. 2014), we remanded this case to the district
court “for further consideration in light of” Burrage v. United States, 571 U.S. ___,
___, 134 S. Ct. 881, 892 (2014) (holding that, at least where use of the drug
distributed by the defendant is not independently sufficient to cause the victim’s
death or serious bodily injury, the defendant cannot be liable under the § 841(b)(1)(C)
enhancement provision unless the victim’s use of the drug is a but-for cause of the
death or injury). On remand, the government conceded it could not prove but-for
causation and Burrage applies retroactively, but argued the district court lacked
authority to grant § 2255 relief because the enhanced sentence Ragland received did
not exceed the maximum statutory sentence without application of the enhancement.
Relying on Sun Bear v. United States, 644 F.3d 700, 705-06 (8th Cir. 2011) (en banc)
(concluding that a collateral attack on the career-offender Guidelines enhancement
based on an intervening change in the law was not cognizable under § 2255 where the
sentence was within the statutory maximum), the district court concluded that
Ragland’s claim was not cognizable under § 2255, denied relief, and denied a COA.

       In response to Ragland’s COA request, the government states that after further
consideration, it now takes the position that Sun Bear is inapposite because error
under Burrage implicates not just a defendant’s sentence, but also his conviction. We
agree Ragland’s claim under Burrage is a challenge to the validity of his conviction
for distribution of heroin resulting in death, and therefore is cognizable under § 2255.
See Burrage, 571 U.S. at ___, 134 S. Ct. at 887 (stating that causation of the victim’s
death is an element of the offense of distribution of heroin resulting in death).
Accordingly, we grant Ragland’s COA request, vacate his conviction for distribution
of heroin resulting in death, and remand with instructions for the district court to enter
judgment on the lesser included offense of distribution of heroin and resentence
Ragland for that offense. See, e.g., United States v. Burrage, 747 F.3d 995, 998 (8th
Cir. 2014) (directing entry of judgment and resentencing for the distribution offense



                                           -2-
where the evidence was sufficient to support the conviction for that offense, but
insufficient to support the conviction for distribution of heroin resulting in death).1
                        ______________________________




      1
       We need not address the question, expressly conceded by the government,
whether Ragland procedurally defaulted his Burrage argument by failing to raise it
on direct appeal. See, e.g., United States v. Brewer, 766 F.3d 884, 887 (8th Cir.
2014).

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