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United States v. Anderson

United States District Court, M.D. Tennessee, Nashville Division

May 21, 2018

UNITED STATES OF AMERICA
v.
DAMION ANDERSON

          MEMORANDUM AND ORDER

          ALETA A. TRAUGER, UNITED STATES DISTRICT JUDGE.

         Before the court is defendant Damion Anderson's Motion and Incorporated Memorandum Seeking Declaration that 21 U.S.C. § 841(b) Requires Proof of Scienter to Increase the Mandatory Minimum Sentence from Zero Years to Twenty Years. (Doc. No. 101.) In this motion, the defendant argues that due process requires the United States to prove beyond a reasonable doubt that the defendant actually knew that the substance he is charged with distributing included fentanyl in order for him to receive a mandatory minimum sentence of twenty years that applies when a death results from the offense. 21 U.S.C. § 841(b).

         The United States responded to the Motion (Doc. No. 114) and, with the court's leave, both a Reply (Doc. No. 119) and a Surreply (Doc. No. 131) have been filed. For the reasons set forth herein, the motion will be DENIED.

         I. BACKGROUND

         Defendant Damion Anderson, along with several co-defendants, has been indicted on charges of conspiracy to distribute heroin and fentanyl, the use of which resulted in the death of an individual, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846 (Count 1), and possession with the intent to distribute and distribution of heroin and fentanyl, the use of which resulted in the death of an individual, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2 (Count 2). (Indictment, Doc. No. 1.)

         Under 21 U.S.C. § 841(b)(1)(C), the maximum sentence applicable in light of the drug quantity at issue in this case is twenty years, [1] unless the government proves the element of a death resulting from the offense, in which case the statute provides for a mandatory minimum of twenty years and a maximum of life, “even if the defendant is completely ignorant that the substance contained fentanyl.” (Doc. No. 101, at 1-2.) The defendant argues that, to comport with constitutional due process considerations, the statute must be “construed to require proof of scienter of the offense element which increases the sentence to a mandatory [minimum of] 20 years imprisonment.” (Doc. No. 101, at 2.) He argues broadly that § 841(b) adds an element to the offense and, as a result, “creates an offense more serious than, and separate from, the drug offenses in which death or serious bodily injury do not occur.” (Id.) Consequently, he argues, “each element of that separate offense must require proof of scienter.” (Id.) The defendant acknowledges that the Sixth Circuit has held that § 841(b) requires “no mens rea as to the quantity of drugs or as to the type of drugs, ” but he nonetheless insists that the Supreme Court “has not considered whether the Due Process Clause requires proof of scienter to increase the sentence when a violation of drug laws results in death.” (Id.) In short, he claims that he “should not face the potential of a 20-year prison term unless the government proves he knew the substance at issue contained fentanyl, a highly dangerous substance. The punishment should be subject to such a dramatic increase only if the defendant knew the risk of harm and chose to proceed nonetheless.” (Id. at 7.)

         The United States argues, in response, that this field has been well plowed by the Sixth Circuit, which has repeatedly held that § 841(b) prescribes penalties for violations of § 841(a) and does not create a new offense, even when a death is involved, and that the death does not need to be foreseeable to the defendant for the § 841(b)(1)(C) enhancement to apply. (Doc. No. 114.)

         In his Reply, the defendant insists that the Sixth Circuit precedent upon which the United States relies, even to the extent it refers to Apprendi v. New Jersey, 530 U.S. 446 (2000), does not address his particular due process argument, because Apprendi only concluded that the Due Process Clause requires that any facts that increase a statutory maximum sentence must be found by a jury beyond a reasonable doubt. The defendant's argument-whether proof of mens rea as to the type of drug involved is required in a federal drug prosecution when a death is involved- was not addressed by Apprendi. He also insists that Apprendi and its progeny do not “foreclose Mr. Anderson's due process challenge.” (Doc. No. 119, at 2.)

         In its Surreply, the United States distinguishes the cases upon which the defendant purports to rely and reiterates that § 841(a) incorporates a mens rea requirement and that § 841(b) does not create a “separate crime.” (Doc. No. 131.)

         II. DISCUSSION

         A. Legal Framework

         The defendant's argument is perplexing, because he essentially conflates two distinct factors: (1) his alleged participation in the distribution of a substance that contained fentanyl, and (2) the death that allegedly resulted from the use of that substance. Regarding the first of these factors, 21 U.S.C. § 841(a)(1) makes it a crime to “knowingly and intentionally” distribute or possess with intent to distribute a controlled substance. In other words, § 841(a) clearly incorporates a mens rea requirement: the defendant must have the intention to possess or to distribute a controlled substance, without reference to the type (or quantity) of that substance.

         Section 841(b) describes the penalties that apply to a person convicted under § 841(a). As relevant here, if the controlled substance at issue is listed in Schedule I or Schedule II, and if “death or serious bodily injury results from the use of such substance, ” the defendant convicted under § 841(a) “shall be sentenced to a term of imprisonment of not less than twenty years.” 21 U.S.C. § 841(b)(1)(C). Heroin is a Schedule I drug, 21 C.F.R. § 1308.11(c)(11), and fentanyl is on Schedule II, id. § 1308.12(c)(9). In other words, the same penalty would apply regardless of whether the substance in this case was pure heroin or heroin cut with fentanyl.

         The Sixth Circuit has long held that § 841(b), insofar as it sets forth penalties that vary based on the quantity and type of drug involved, does not incorporate a mens rea requirement, meaning that the government does not need to prove that the defendant knew or intended that his offense would involve a certain quantity of drugs or even that it would involve a specific type of drug, as long as he “knowingly and intentionally” distributed a controlled substance or, under § 846, that he was involved in a conspiracy to distribute a controlled substance. See, e.g., United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014) (holding that, to convict the defendant of conspiring to manufacture, distribute, or possess with intent to distribute 1, 000 or more marijuana plants, the government had to prove beyond a reasonable doubt that (1) the defendant knowingly and intentionally participated in a conspiracy to manufacture, distribute, or possess a controlled substance with intent to distribute and (2) the conspiracy involved 1, 000 or more marijuana plants, but it did not have to prove beyond a reasonable doubt that the defendant knew that the conspiracy involved 1, 000 or more marijuana plants, because it was not required to prove mens rea as to the type and quantity of drugs involved in the conspiracy); United States v. Villarce, 323 F.3d 435, ...


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