           Case: 19-10289   Date Filed: 02/19/2020   Page: 1 of 11


                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 19-10289
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 8:17-cr-00507-JDW-AEP-8



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,


                                  versus


PRINCE GRANT,

                                              Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                            (February 19, 2020)

Before JILL PRYOR, NEWSOM and ANDERSON, Circuit Judges.

PER CURIAM:
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       Prince Grant appeals his sentence of 120 months’ imprisonment imposed

after he pled guilty to one count of conspiracy to distribute heroin and furanyl

fentanyl, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(C). On appeal, Grant

argues that the district court erred in departing upward under U.S.S.G. § 5K2.1

from his Sentencing Guidelines range. The district court departed upward after

finding that a victim had died as a result of Grant’s relevant conduct and

participation in the drug-distribution conspiracy. After careful review, we affirm.


                                      I.    BACKGROUND

       A grand jury charged Grant and 10 co-defendants in a multi-count

indictment alleging a conspiracy to distribute and possess with intent to distribute

heroin, fentanyl, and fentanyl analogues, specifically furanyl fentanyl.1 Count I

charged Grant with participation in the conspiracy, in violation of 21 U.S.C. § 846;

Counts II and III charged him with possession with the intent to distribute these

controlled substances, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) and

18 U.S.C § 2. Grant pled guilty to Count I pursuant to a plea agreement, in

exchange for the government’s agreement to dismiss Counts II and III.

   A. Factual Background


       1
         There are different spellings of furanyl fentanyl in the record, but we will refer to it as
“furanyl fentanyl,” as the parties do.
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      A probation officer prepared a presentence investigation report (“PSR”) for

Grant.2 The PSR stated that Grant’s co-defendants operated a drug- trafficking

organization, which distributed heroin, fentanyl, and fentanyl analogues. The co-

defendants combined and packaged these substances into bindle quantities—a

bindle usually refers to .10 grams of heroin—and then distributed the bindles to

dealers in Lakeland, Florida. Grant was one of these dealers.

      Lakeland Police Department (“LPD”) officers, responding to an emergency

call for assistance, discovered D.K. lying face up on the floor and unresponsive.

Next to D.K.’s body was a syringe, a spoon, and three bindles of heroin, one of

which was open. The bindles were stamped with a blue/green skull and the words

“Kill Bill.” Doc. 356 at ⁋ 30. 3 D.K. was later pronounced dead at the hospital.

According to the toxicologist’s analysis, multiple substances in D.K.’s system

caused her death. Although other facts surrounding D.K.’s death suggested that

she had died of an opioid overdose, the toxicological analysis showed the presence

of additional controlled substances.

      LPD began an investigation and discovered, after searching D.K.’s

cellphone, several text messages she sent to Grant two and a half hours before the




      2
          Neither party objected to the following facts set forth in the PSR.
      3
          “Doc. #” refers to the numbered entry on the district court’s docket.

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police found her unresponsive. The text messages said, “On my way want astamp 4

for my mailfeel me,” “Hope u r there,” “I am here,” “Boo please give me a eta,”

and then “Ru coming or should I leave.” Doc. 356 at ⁋ 31. The police uncovered

Grant’s palm print on one of the bindles found next to D.K.’s body.

      LPD learned that Grant was a local drug dealer who distributed narcotics out

of an apartment in Lakeland, Florida. They executed a search warrant at the

apartment, where Grant was apprehended after attempting to flee out of a window.

In the apartment, LPD found 20 bindles of heroin that contained the same “Kill

Bill” stamp as the bindles discovered near D.K.’s body. An analysis of Grant’s

phone, which was seized during the execution of the search warrant, revealed 15

calls from and two calls to D.K. during the two days leading up to her death.

      Two other victims died after purchasing bindles from members of the

conspiracy.

      Grant pled guilty to Count I, the conspiracy count, and the remaining counts

were dismissed.

   B. Sentencing

      For sentencing purposes, the probation officer assigned Grant a base offense

level of 14. The PSR applied various enhancements and reductions that resulted in

a total offense level of 15. Given Grant’s assigned criminal history category of VI,

      4
          The PSR identifies “stamp” as a common street term for a package of heroin.

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his recommended guideline range was 41 to 51 months’ imprisonment. The PSR

noted that there were several possible bases that would justify an upward

departure, one of which was that a death had resulted from the offense conduct.

See U.S.S.G. § 5K2.1 (“If death resulted, the court may increase the sentence

above the authorized guideline range.”). The statutory maximum sentence was 360

months’ imprisonment. See 21 U.S.C. §§ 846, 841(b)(1)(C), 851.

      At sentencing, the government recommended an upward departure under

U.S.S.G. § 5K2.1 from Grant’s guidelines range, explaining that his relevant

conduct involved potent substances, fentanyl and fentanyl analogues, which

created a severe risk of death. The government also argued that—although it could

not prove that Grant’s conduct was the but-for cause of D.K.’s death due to

multidrug toxicity in her system—there nonetheless was sufficient evidence for the

district court to find by a preponderance of the evidence that Grant was responsible

for her death. Grant objected to the upward departure and pointed to the

government’s acknowledgment that it could not establish beyond a reasonable

doubt that the drugs Grant distributed were the but-for cause of D.K.’s death.

Grant also contended that because D.K. had in her system multiple drugs,

including a lethal amount of cocaine, which he had not distributed, there was

insufficient evidence to prove under any standard that he had caused her death.




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      Dr. Stephen Nelson, the medical examiner who performed D.K.’s autopsy,

testified at sentencing. Nelson testified that the cause of death was multiple drug

intoxication. According to Nelson, D.K. suffered from hemorrhagic pulmonary

edema, meaning that she had increased fluid in her lungs. Nelson explained that

the pulmonary edema was evidenced in part by the increased weight of her lungs at

the time of her death. He testified that the increased weight of D.K.’s lungs was

consistent with an opioid overdose. The toxicology report revealed cocaine in

D.K.’s blood and urine and morphine—which was indicative of heroin use—and

furanyl fentanyl in her urine. Nelson could not determine when D.K. had ingested

the heroin or furanyl fentanyl, as neither was found in her blood. Nelson

concluded that heroin and furanyl fentanyl contributed substantially to D.K.’s

death, despite the fact that he could not say that heroin was the but-for cause due to

the presence of cocaine in her system as well. Nelson characterized the level of

cocaine in D.K.’s system at the time of her death as acute.

      Drug Enforcement Agency special agent Andrew Scripture, a lead agent on

the investigation into the drug-trafficking conspiracy and the overdoses that

resulted, also testified at Grant’s sentencing. Scripture testified that LPD took

photographs of the crime scene because they suspected that D.K.’s death resulted

from an overdose. The government introduced some of these photographs into

evidence. The photographs showed bindles of heroin labeled with “Kill Bill”


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stamps next to D.K.’s body. The photographs also showed an open bindle next to

a needle, indicative, according to Scripture, that the heroin from that bindle had

been injected with the needle. Scripture further testified that the residue from the

bindles found in D.K.’s apartment tested positive for heroin and furanyl fentanyl,

just like the bindles found in Grant’s apartment.

       The district court accepted the government’s recommendation to depart

upward, concluding that under § 5K2.1 the government had to show by a

preponderance of the evidence that D.K.’s death resulted from Grant’s relevant

conduct. The court found that the government satisfied this standard given the

evidence that Grant had distributed the drugs to D.K., she injected them, and they

contributed substantially to her death, as evidenced by the morphine found in her

urine and her heavy lung weight. In calculating Grant’s guideline range, the court

applied various enhancements and reductions, which resulted in an adjusted

offense level of 11. The court then departed upward to an offense level of 25,

resulting in a new guidelines range of 110 to 137 months, and sentenced Grant to

120 months’ imprisonment. Grant objected both to the departure and the extent of

the departure. Grant now appeals the upward departure.5

                             II.    STANDARD OF REVIEW



       5
         Grant appeals only the court’s decision to depart upward, not the extent of the
departure.
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       We review the district court’s interpretation and application of the

Sentencing Guidelines de novo and its factual findings for clear error. United

States v. Little, 864 F.3d 1283, 1290 (11th Cir. 2017). We review the district

court’s decision to grant an upward departure for an abuse of discretion. United

States v. Flanders, 752 F.3d 1317, 1341 (11th Cir. 2014).

                                    III.    DISCUSSION

       Grant challenges on appeal the district court’s application of U.S.S.G.

§ 5K2.1 to depart upward from his guidelines range. The district court departed

upward after finding that D.K.’s death had resulted from Grant’s relevant conduct.

Grant argues that the government failed to meet its burden to prove that Grant’s

conduct contributed substantially to D.K.’s death.6 Grant argues that because D.K.



       6
         Grant raises two additional arguments on appeal. He acknowledges that U.S.S.G.
§ 1B1.3 permits district courts to consider “relevant conduct” in sentencing but argues that this
section does not apply to § 5K2.1 unless the conduct is inherent in or an element of the offense
of conviction. Specifically, he contends that only “offense conduct”—that is, conduct proven
beyond a reasonable doubt— can form the basis of a 5K2.1 departure and that D.K.’s death,
which the government admitted could not be proven beyond a reasonable doubt, therefore could
not properly be taken into consideration. He alternatively argues that, even if relevant conduct
could be considered in granting the upward departure under § 5K2.1, the district court erred by
using a “contributed substantially” rather than a but-for standard.
         To preserve an issue for appeal, “one must raise an objection that is sufficient to apprise
the trial court and the opposing party of the particular grounds upon which appellate relief will
later be sought.” United States v. Dennis, 786 F.2d 1029, 1042 (11th Cir. 1986). An objection
must be raised “in such clear and simple language that the trial court may not misunderstand it.”
United States v. Straub, 508 F.3d 1003, 1011 (11th Cir. 2007) (internal quotation marks omitted).
Here, Grant raised no objection sufficient to apprise the trial court of these arguments at
sentencing. We therefore review them only for plain error.
      Even if we assumed for argument’s sake that error occurred, the error would not be plain.
We have explained that “where the explicit language of a statute or rule does not specifically
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had additional drugs not distributed by Grant in her system when she died, the

evidence was insufficient to prove that Grant’s distribution to her of the heroin

substantially contributed to her death. After careful review, we conclude that the

district court did not abuse its discretion in determining that the government had

met its burden.

       Section 5K2.1 provides that “[i]f death resulted, the court may increase the

sentence above the authorized guideline range.” U.S.S.G. § 5K2.1. The guideline

instructs the sentencing judge to consider certain factors such as the “defendant’s

state of mind and the degree of planning or preparation . . . whether multiple deaths

resulted, and the means by which life was taken.” Id. Additionally, “[t]he extent

of the increase should depend on the dangerousness of the defendant’s conduct, the

extent to which death or serious injury was intended or knowingly risked, and the




resolve an issue, there can be no plain error where there is no precedent from the Supreme Court
or this Court directly resolving it.” United States v. Chau, 426 F.3d 1318, 1322 (11th Cir. 2005)
(internal quotation marks omitted). Relevant conduct as defined in § 1B1.3 may include both
“uncharged and acquitted conduct that is proven at sentencing by a preponderance of the
evidence.” United States v. Siegelman, 786 F.3d 1322, 1332 (11th Cir. 2015). Although Grant
argues that relevant conduct cannot be taken into consideration under § 5K2.1 unless the conduct
was inherent in or an element of the offense of conviction, there is no Supreme Court or Eleventh
Circuit case law on this issue and therefore any error cannot be plain. See United States v.
Amedeo, 370 F.3d 1305, 1322 (11th Cir. 2004) (“Whether a departure under § 5K2.1 can be
premised on relevant conduct is a legal question for which we have little guidance.”).
Additionally, Grant has pointed to no Supreme Court or Eleventh Circuit case law establishing a
but-for causation standard for an upward departure under § 5K2.1. Any error by the district
court was therefore not plain. See Chau, 426 F.3d at 1322.

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extent to which the offense level for the offense of conviction . . . already reflects

the risk of personal injury.” Id.

      The government’s case at sentencing included the testimony of Nelson, the

medical examiner who conducted D.K.’s autopsy. Nelson testified that

notwithstanding the presence of cocaine in D.K.’s system, the heroin and furanyl

fentanyl had contributed substantially to her death. Specifically, Nelson testified

that because heroin metabolizes into morphine, the presence of morphine in D.K.’s

urine indicated heroin use. Additionally, Nelson testified that D.K.’s pulmonary

edema, demonstrated by heavy lung weight, indicated that she had died of an

opioid overdose; pulmonary edema does not occur with cocaine use. The

government also presented as a witness agent Scripture, who testified regarding the

photographs LPD took at the scene. The photographs showed the bindles bearing

“Kill Bill” stamps and containing the heroin and furanyl fentanyl combination near

D.K.’s body, including one opened bindle. These bindles matched the bindles

found in Grant’s apartment that had the same stamp and contained the same

drugs—further indicating that before her death D.K. used heroin that she purchased

from Grant. The text messages and calls exchanged between Grant and D.K. only

a couple of hours before her death corroborated that she obtained the deadly drugs

from Grant. This evidence was sufficient to meet the government’s burden to




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prove by a preponderance of the evidence that D.K.’s death resulted from an

overdose of drugs she purchased from Grant.

      The district court therefore did not abuse its discretion in upwardly departing

under § 5K2.1.


                              IV.   CONCLUSION

      For the reasons set forth above, we affirm Grant’s sentence.


      AFFIRMED.




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