     Case: 18-11224    Document: 00515241367       Page: 1   Date Filed: 12/18/2019




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

                                                                          FILED
                                    No. 18-11224                  December 18, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk


             Plaintiff - Appellee

v.

MICHAEL DEON THOMPSON,
also known as “ICE MIKE”

             Defendant - Appellant




             Appeal from the United States District Court for the
                         Northern District of Texas


Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
      Michael Deon Thompson was charged with and convicted by a jury of two
counts: (1) distribution and possession with intent to distribute heroin
resulting in serious bodily injury to April Myers and (2) conspiracy to distribute
and possess with intent to distribute heroin. Because of Thompson’s prior
felony drug convictions, and pursuant to 21 U.S.C. § 841(b)(1)(C), he was
sentenced to a mandatory term of life imprisonment. Thompson appeals his
conviction and the denial of his motion for a new trial. For the following
reasons, we AFFIRM.
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                                 No. 18-11224
                                I. Background
      Michael Thompson was a drug dealer who, from October 2016 to October
2017, sold heroin to Bobby Mason multiple times per week. Mason would at
times act as a middleman, connecting customers with Thompson in exchange
for extra heroin. On the morning of October 6, 2017, Mason met fellow heroin
user April Myers at her house; the two planned on picking up some heroin to
use and some to sell. Myers had started her day by taking out cash to purchase
the heroin. She also used some of the funds to buy Xanax and hypodermic
needles. When she arrived home, she gave her money to Mason who began
calling drug dealers to arrange a deal. Mason called Thompson and another
supplier, John Carrion, also known as Rico. Myers had never previously met
either dealer.
      At trial, Mason testified that Thompson arrived first at Myers’s
residence, pulling up to the front of the home in his Ford SUV. Mason went
outside, got into Thompson’s vehicle, and bought at least two grams of heroin
with Myers’s money. Although Myers could not see Thompson, she watched
the transaction from her porch to make sure that Mason did not steal any of
the heroin.
      After completing the transaction, Mason went back inside Myers’s home,
informed her that he had purchased heroin from Thompson, and proceeded to
use a spoon to prepare the heroin for use. At this point, Carrion called Myers’s
phone, and Mason went outside and purchased around one gram of heroin.
Mason returned to the residence and drew the heroin Thompson supplied from
the spoon into a syringe. Mason then injected himself with the heroin. Mason
testified that Myers next injected herself with the heroin, while Myers testified
that Mason injected her.       Mason was the only witness with firsthand
knowledge that Thompson was the source of the heroin that Myers used that
morning.
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                                  No. 18-11224
      Immediately after the injection, Myers “knew [she] was in trouble.” She
“felt out of control” and afraid. Myers headed to her bathroom to throw up, but
she collapsed on the bathroom floor, losing consciousness.
      Mason called 911 from Myers’s cell phone and reported the overdose. He
then gathered the remaining heroin and fled from the house. Paramedics later
arrived and administered Narcan, a medication that counteracts the effects of
a heroin overdose. One paramedic testified that it required about twenty
minutes to resuscitate Myers after administering the Narcan.
      The paramedics took Myers to a hospital where Dr. Jonathan Dizon, an
emergency room physician, examined her. At trial, Dr. Dizon testified that,
after reviewing the paramedic’s report, he believed that Myers “suffered
serious bodily injury . . . from the ingestion of heroin” and that her ingestion
of heroin “create[d] a substantial risk of death.” Dr. Dizon also stated that a
toxicology report based on a sample of Myers’s urine found heroin,
methamphetamine, cocaine, opiates, and benzodiazepine. He testified that, in
his expert opinion, but for Myers’s use of heroin, she would not have sustained
serious bodily injury.
      At trial, the jury was instructed that “[t]o prove that serious bodily injury
resulted to April Myers from the use of heroin, the government must prove
beyond a reasonable doubt that but for [Myers]’s use of heroin, [Myers] would
not have sustained serious bodily injury.”           During closing argument,
Thompson’s counsel argued that Mason is a liar and asked the jury not to
believe him. After deliberating, the jury found Thompson guilty of both counts.
With respect to Count One, the jury specially found “beyond a reasonable
doubt, that [April Myers] suffered serious bodily injury as a result of ingesting
heroin distributed by Michael Deon Thompson.”




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                                      No. 18-11224
       Following the verdict, Thompson moved for judgment of acquittal under
Federal Rule of Criminal Procedure 29 and for a new trial under Rule 33. The
district court denied both motions.
       Due to Thompson’s prior felony convictions, his conviction under Count
One for distribution and possession with intent to distribute heroin resulting
in serious bodily injury mandated a sentence of life imprisonment. 21 U.S.C.
§ 841(b)(1)(C); 1 Thompson was also sentenced to 41 months’ imprisonment on
the related conspiracy charge. He timely appealed.
                               II. Standard of Review
       When a challenge to the sufficiency of the evidence is preserved by
moving for acquittal under Federal Rule of Criminal Procedure 29, the
challenge is reviewed de novo but with a high degree of deference to the verdict.
See United States v. Scott, 892 F.3d 791, 796 (5th Cir. 2018). All evidence is
viewed “in the light most favorable to the Government, with all reasonable
inferences and credibility choices to be made in support of the jury’s verdict.”
Id. (internal quotation marks omitted). In addition, evidence on an essential
element of an offense is sufficient “if any rational trier of fact could have found”
that element beyond a reasonable doubt. Id. (internal quotation marks and
citation omitted).
       “[T]he decision to grant or deny a motion for new trial based on the
weight of the evidence is within the sound discretion of the trial court. An
appellate court may reverse only if it finds the decision to be a clear abuse of




       1 The statute provides in pertinent part:
       If any person commits such a [controlled substances] violation after a prior
       conviction for a felony drug offense has become final, such person shall be
       sentenced to a term of imprisonment of not more than 30 years and if death or
       serious bodily injury results from the use of such substance shall be sentenced
       to life imprisonment . . . .
21 U.S.C. § 841(b)(1)(C) (emphasis added).
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                                  No. 18-11224
discretion.” United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997)
(internal quotation marks omitted).
                                III. Discussion
      Thompson contends on appeal that (1) the evidence was insufficient to
find that the heroin he supplied was the but-for cause of Myers’s serious bodily
injury, (2) the Government was required to prove that his distribution was the
legal or proximate cause of Myers’s injury under § 841(b)(1)(C), and (3) the
district court abused its discretion in denying his motion for a new trial.
          A. Sufficiency of the Evidence on But-For Causation
      “[A]t 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 v. United States, 571 U.S. 204, 218-19 (2014). “But-for causation
requires the Government to show merely that the harm would not have
occurred in the absence of—that is, but for—the defendant’s conduct.” United
States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019) (internal quotation marks
and citation omitted). The standard is not difficult to meet because it “asks
simply whether the outcome would have occurred in the absence of the action.”
Id. Thus, there may be many but-for causes of any given event. Id.
      The Supreme Court in Burrage held that the defendant’s distribution of
heroin to a person who died of a drug overdose was not a but-for cause of the
death because the victim had ingested so many other drugs that no expert
could testify that, but for the heroin, the victim would have lived. 571 U.S. at
207-08. On the other hand, a drug distributed by a defendant may be a but-
for or “actual” cause of death or injury if other drugs in a victim’s system would
not have caused the victim’s harm without the addition of the defendant’s drug.
See id. at 210, 217-18.
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                                        No. 18-11224
       We conclude sufficient evidence existed to support the jury’s finding of
but-for causation here. Dr. Dizon, the emergency room physician who treated
Myers, testified explicitly that he believed that but-for Myers’s use of heroin,
she would not have sustained serious bodily injury. 2 Also, the testimony of
Mason, Myers, and the paramedic establish a clear timeline that points to
heroin as a but-for cause of Myers’s injury.                     Myers collapsed nearly
immediately after she injected the heroin and then regained consciousness
shortly after being administered Narcan.                This all suggests that without
ingesting the heroin Thompson supplied, Myers would not have suffered
serious bodily injury.
       Thompson argues that the evidence was insufficient to establish but-for
causation because he distributed heroin to Mason, rather than Myers, and
because Mason ultimately chose the heroin injected into Myers. However,
there is no requirement that Thompson directly distribute the drugs to the end-
user or that Thompson be the final link in the causal chain. See, e.g., United
States v. Soler, 275 F.3d 146, 149, 152-53 (1st Cir. 2002) (finding but-for
causation standard met even though defendant-appellant had no direct
dealings with the victim); United States v. McIntosh, 236 F.3d 968, 973 (8th
Cir. 2001), abrogated on other grounds by Burrage, 571 U.S. 204 (“The
enhancement inquiry [under § 841] is not altered merely because . . . [the
victim] obtained the drug directly from someone other than McIntosh.”).
Because there may be “many but-for causes,” we likewise find no merit in
Thompson’s argument that the heroin had to be the “only” cause of Myers’s
injuries. See Salinas, 918 F.3d at 466 (internal quotation marks omitted).



       2  Thompson asserts that Dr. Dizon’s trial testimony was improper. However,
Thompson failed to object to Dr. Dizon’s expert testimony at trial, and we discern no plain
error in the district court’s allowing that testimony into evidence. See United States v. Cotton,
535 U.S. 625, 631 (2002).
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                                     No. 18-11224
Therefore, we cannot say that no rational juror could find the but-for causation
standard met based on the testimony and evidence adduced at trial. Scott, 892
F.3d at 897.
                  B. Causation Standard Under Count One
      On appeal, Thompson argues that, in addition to but-for causation, the
charge under Count One for distributing heroin which resulted in serious
bodily injury required the Government to prove that his conduct proximately
caused Myers’s injury. 3 See 21 U.S.C. § 841(b)(1)(C). At trial, the jury was
instructed that they had to find but-for causation to convict Thompson on
Count One. No mention was made of proximate cause, and Thompson’s counsel
did not object.
      Because of trial counsel’s failure to object, we apply plain-error review.
See Cotton, 535 U.S. at 631. Under this standard, we can only notice “(1) [an]
error, (2) that is plain, and (3) that affect[s] substantial rights . . . [when] (4)
the error seriously affect[s] the fairness, integrity, or public reputation of
judicial proceedings.” Id. (internal quotation marks and citations omitted)
(second and last alterations in original). Even assuming arguendo that the
district court erred, Thompson cannot show—and does not argue—that the
error was plain. “[E]very federal court of appeals to address th[e] issue” of
whether § 841(b) demands proof of proximate causation has determined that
the provision entails no such requirement. United States v. Harden, 893 F.3d
434, 447-48 (7th Cir. 2018) (collecting cases), cert. denied, 139 S. Ct. 394, 202
(2018); see also United States v. Burkholder, 816 F.3d 607, 618 (10th Cir. 2016);



      3  Thompson further contends that there was insufficient evidence to prove that the
proximate cause standard was met. Of course, the jury was never instructed to find whether
Thompson’s drug distribution proximately caused Myers’s injury, and thus there is no jury
finding to challenge. Moreover, we need not reach this issue because we determine that
Thompson cannot satisfy the predicate showing of plain error in the failure to instruct the
jury on a requirement of proximate cause.
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                                  No. 18-11224
United States v. Webb, 655 F.3d 1238, 1250 (11th Cir. 2011); United States v.
De La Cruz, 514 F.3d 121, 137 (1st Cir. 2008); United States v. Houston, 406
F.3d 1121, 1124-25 (9th Cir. 2005); United States v. Robinson, 167 F.3d 824,
832 (3d Cir. 1999); United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994).
Although we have not squarely answered this question, in United States v.
Carbajal, we suggested in dicta that § 841(b) “does not impose any sort of
explicit causation requirement” and held that U.S.S.G. § 2D1.1, the Sentencing
Guidelines provision analogous to § 841(b), “is a strict liability provision that
applies without regard for common law principles of proximate cause or
reasonable foreseeability.” 290 F.3d 277, 284 (5th Cir. 2002); see also U.S.
SENTENCING GUIDELINES MANUAL § 2D1.1 (stating that the provision applies
if “death or seriously bodily injury resulted from the use of the substance”).
      Thompson claims that Burrage requires proximate cause be proven
under the “death or serious bodily injury results” language in § 841(b). He
misreads Burrage, and his own citations to the case evidence that the Court
merely observed that, in general, the criminal law imposes a requirement that
the defendant’s conduct be the proximate cause of the result. See Burrage, 571
U.S. at 210. Burrage does not—nor does it purport to—read a proximate cause
requirement into § 841(b). See id. at 218-19 (“We hold 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.” (emphasis added)). Indeed,
we have cited Burrage in support of the conclusion that “resulted from”
language in a guidelines provision “imposes a requirement [only] of actual or
but-for causation.” United States v. Ramos-Delgado, 763 F.3d 398, 401 (5th
Cir. 2014). Given the overwhelming weight of authority, any asserted error by
the district court in failing to instruct the jury that proximate cause is an
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                                 No. 18-11224
element of the offense under Count One certainly is not “clear” or “obvious,”
and Thompson, therefore, cannot meet the exacting standards of plain-error
review.   See United States v. Olano, 507 U.S. 725, 734 (1993) (“‘Plain’ is
synonymous with ‘clear’ or, equivalently, ‘obvious.’”).
                  C. Thompson’s Motion for a New Trial
      Thompson next challenges the denial of his motion for a new trial,
contending that the Government’s key witness, Mason, was unreliable and
incredible. A district court may grant a motion for a new trial “if the interest
of justice so requires.” FED. R. CRIM. P. 33(a). We may reverse the district
court’s decision to deny Thompson’s motion for a new trial only if we find it “to
be a clear abuse of discretion.” United States v. Robertson, 110 F.3d 1113, 1118
(5th Cir. 1997) (internal quotation marks and citation omitted). “Testimony is
incredible as a matter of law only if it relates to facts that the witness could
not possibly have observed or to events which could not have occurred under
the laws of nature.” Id. at 797 (internal quotation marks and citation omitted).
“Where the defense has had an opportunity to question witnesses as to their
biases, and the jury has concluded that the witnesses are credible, the trial
court has broad discretion” in ruling on a motion for a new trial. United States
v. Dula, 989 F.2d 772, 778 (5th Cir. 1993). Here, the defense vigorously cross-
examined Mason, questioning his credibility and exposing his incentives to
testify for the Government. Moreover, it was solely the jury’s province “to
weigh conflicting evidence and evaluate the credibility of witnesses.”         Id.
(internal quotation marks omitted) (quoting United States v. Ivey, 949 F.2d
759, 767 (5th Cir. 1991)). Thompson essentially asks us to reevaluate Mason’s
credibility—a request we decline. See id. at 778; see also United States v.
Arnold, 416 F.3d 349, 361 (5th Cir. 2005) (declining to review the district
court’s assessment of the credibility of witnesses).


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                           No. 18-11224
                          IV. Conclusion
  For these reasons, the judgment of the district court is AFFIRMED.




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