United States Court of Appeals For the First Circuit

No. 18-2187

UNITED STATES OF AMERICA,

Appellee,

v.

LUCAS HEINDENSTROM,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Nancy Torresen, U.S. District Judge]

Before

Lynch, Selya, and Barron, Circuit Judges.

Robert C. Andrews, with whom Robert C. Andrews Esquire P.C. was on brief, for appellant. Julia M. Lipez, Assistant United States Attorney, with whom Halsey B. Frank, United States Attorney, was on brief, for appellee.

December 30, 2019 SELYA, Circuit Judge. Defendant-appellant Lucas

Heindenstrom pleaded guilty to a single count charging him with

drug distribution in violation of

(a)(1). The

district court, relying heavily on a finding that a death resulted

from the offense of conviction, imposed an above-the-range term of

immurement, justifying the sentence both as an upward departure

and an upward variance. Concluding that the sentence is

supportable when viewed as an upward variance, we affirm.

I. BACKGROUND

We start by rehearsing the relevant facts and travel of

the case. When — as in this case — an appeal trails in the wake

of a guilty plea, we normally "draw the facts from the change-of-

plea colloquy, the uncontested portions of the presentence

investigation report (PSI Report), and the transcript of the

disposition hearing." United States v. Narváez-Soto,

(1st Cir. 2014). Here, however, there is a wrinkle: the

district court conducted an evidentiary hearing as part of the

disposition hearing. Thus, we draw some additional facts from the

court's supportable findings following the evidentiary hearing.

See United States v. Caramadre,

(1st Cir. 2015).

On March 31, 2016, local police responded to an

unattended death in York, Maine. Officers determined that the

decedent, Kyle Gavin, had been dead for some time and found a

substance that contained fentanyl, an empty needle, a metal spoon,

- 2 - and other drug paraphernalia near his body. The officers then

spoke with Gavin's roommates and learned that Gavin, an Army

veteran, had met a friend named "Lucas" on the night he died and

had given Lucas money.

The officers contacted the federal Drug Enforcement

Administration (DEA). The DEA discovered a series of text messages

between Gavin and the appellant, sent on the night that Gavin died.

Toward the end of this exchange, Gavin indicated that the drugs

the appellant had sold him tasted like "sugar." The appellant

responded by assuring Gavin that the drugs were "good" and

suggesting that the sweet taste came from fentanyl.

The next day, the DEA used Gavin's cellphone to set up

a heroin purchase with the appellant and arrested him when he

arrived. After waiving his Miranda rights, see Miranda v. Arizona,

(1966), the appellant admitted that he had

sold a gram of heroin to Gavin on March 30.

Subsequent investigation revealed that the substance

trafficked by the appellant contained fentanyl, and the text-

message exchange indicated that the appellant was aware of the

presence of fentanyl. The appellant admitted that he had procured

heroin for Gavin on two or three earlier occasions.

A toxicology report indicated that there were 121 mg/dL

of ethanol, 120 mg/dL of methanol, and 5.7 ng/mL of fentanyl in

Gavin's system. These revelations were consistent with the report

- 3 - of the medical examiner, who determined that the cause of Gavin's

death was "[a]cute intoxication" from the "combined effects of

ethanol, methanol and fentanyl."

In due course, a federal grand jury sitting in the

District of Maine charged the appellant with distribution of a

substance or mixture containing fentanyl. After some

preliminaries, not relevant here, the appellant pleaded guilty to

the single count of the indictment. Following receipt of the PSI

Report, the district court conducted an evidentiary hearing as a

subset of the disposition hearing.

During the evidentiary hearing, Jonathan L. Arden, M.D.,

testified on the appellant's behalf. Dr. Arden discussed each of

the substances found in Gavin's system and their contributions to

Gavin's death. His opinion was that ethanol, methanol, and

fentanyl "all . . . played a meaningful role" in Gavin's death,

that is, all of them were "contributory." But Dr. Arden could not

identify any one among the three toxins as "the sole cause" of

death. He explained that the levels of both methanol and fentanyl

found in Gavin's system independently could be fatal, but there

was no reliable way to separate their effects.

After hearing Dr. Arden's testimony, the sentencing

court reviewed an array of statutory and guideline provisions.

Pertinently, the court pointed out that the government had not

charged the appellant under

(b)(1)(C) (which carries

- 4 - a mandatory minimum sentence of twenty years if a defendant

distributes a drug and death results). Nor did the government

invoke USSG §2D1.1(a)(2) (which sets a higher offense level when

"the offense of conviction establishes that death . . . resulted

from the use of the substance"). At the government's urging, the

court then examined the applicability of USSG §5K2.1 (which

authorizes an upward departure "[i]f death resulted" from an

offense of conviction). The government argued that strict but-

for causation was not a prerequisite for the application of section

5K2.1, while the appellant, citing Burrage v. United States,

(2014), insisted that strict but-for causation was

needed.

After weighing the evidence, the sentencing court made

several factual findings. Importantly, the court found that the

appellant had furnished the fentanyl discovered in Gavin's system;

that the appellant knew that the substance he gave to Gavin

contained fentanyl; and that Gavin's death was caused by the

combined effects of the three toxins discovered in his system post-

mortem (ethanol, methanol, and fentanyl). The court recognized

that the amount of fentanyl in Gavin's system was possibly an

independent cause of death, but it found that the government had

not proven this fact by a preponderance of the evidence.

Similarly, the court recognized that the amount of methanol in

Gavin's system might have been an independent cause of death. Once

- 5 - again, though, the court eschewed any more specific finding

regarding the likelihood that methanol was the independent cause

of death. Finally, the court determined that although fentanyl

was a contributing factor in Gavin's death, it was not a strict

but-for cause as it was "impossible to say" whether Gavin would

have lived but for the ingestion of fentanyl.

Against the backdrop of these factual findings, the

court rejected the appellant's argument that an upward departure

under section 5K2.1 demands strict but-for causation. The court

concluded instead that the offense conduct only needs to be a

meaningful, contributing cause of death. The court proceeded to

calculate the guideline sentencing range (GSR), which it found

without objection to be eight to fourteen months. The government

recommended a sentence of up to ninety-six months, and the

appellant argued for a sentence of thirty months.1 The court

advised the parties that it had considered the nature and

circumstances of the offense, as well as the appellant's history

and characteristics.

This brought matters to a head: finding the GSR

"woefully insufficient," the court determined that an upward

departure was warranted under section 5K2.1. The court further

found that forty-six months was the proper extent of the upward

1A thirty-month sentence, though substantially above the GSR, would have been roughly equivalent to time served.

- 6 - departure and proceeded to impose a sixty-month incarcerative

sentence. The court stated explicitly, though, that if an upward

departure were deemed inappropriate, it would nonetheless "have

given [the same sentence] as an upward variance." In the court's

view, the very same factors that supported an upward departure

also supported an upward variance.

This timely appeal ensued.

II. ANALYSIS

Appellate review of claimed sentencing errors involves

a "two-step pavane." United States v. Matos-de-Jesús,

(1st Cir. 2017); see United States v. Martin,

(1st Cir. 2008). To begin, we examine any allegations of

procedural error. See United States v. Flores-Machicote,

(1st Cir. 2013); Martin,

. If the sentence

passes procedural muster, we then examine any allegation that it

is not substantively reasonable. See Flores-Machicote,

; Martin,

. Here, the appellant assails his

sixty-month sentence both procedurally and substantively. We

address his claims of error sequentially.

A.

Before launching our inquiry into the appellant's claims

of error, a threshold matter looms. As said, the district court

couched its sentence both as an upward departure and as an upward

variance. Viewed solely as an upward departure, the validity of

- 7 - the sentence is a close question. The departure provision relied

upon by the district court, USSG §5K2.1, authorizes an upward

departure "[i]f death resulted" from the offense conduct. Because

a departure can only be imposed pursuant to "the framework set out

in the Guidelines," United States v. Rodríguez-Reyes,

(1st Cir.) (quoting United States v. Aponte-Vellón,

(1st Cir. 2014)), cert. denied,

(2019),

a departure sentence must satisfy whatever criteria the particular

departure guideline entails.

Under the departure guideline invoked by the district

court, it is necessary to determine the dimensions of the "death

resulted" phraseology. In probing those dimensions, we would need

to ask what the Sentencing Commission meant when it used that

phrase in section 5K2.1. This inquiry would include establishing

what standard of causation the Sentencing Commission purposed to

require for determining whether death "resulted" from a

defendant's conduct. See, e.g., United States v. Rivera-Berríos,

(1st Cir. 2018); United States v. Colby,

(1st Cir.), cert. denied,

(2018).

The appellant asserts that "death resulted," as used in

section 5K2.1, requires strict but-for causation linking the

offense conduct to Gavin's death. In support, he points out that

the Supreme Court required such a causal link in Burrage with

respect to an almost identically worded sentencing enhancement

- 8 - provision. To be specific, the Burrage Court held that

(b)(1)(C)'s penalty-enhancement provision for death resulting

from a distributed drug demands proof of strict but-for causation,

that is, proof that the drug was "the straw that broke the camel's

back," "at least where use of the drug distributed by the defendant

is not an independently sufficient cause of the victim's death."

. The government counters that the less

stringent type of causation found sufficient in United States v.

Pacheco,

(1st Cir. 2007), a pre-Burrage case, is all

that is required to trigger a section 5K2.1 departure. There, we

interpreted a "sister" provision of section 5K2.1 (section 5K2.2),

which authorizes an upward departure "[i]f significant physical

injury resulted" from the offense conduct.

. We

concluded that so long as a drug "played a meaningful role" in

causing injuries, regardless of whether that drug was the "sole"

or "direct" cause of those injuries, an upward departure under

section 5K2.2 was permissible.

.

The sentencing court sided with the government.

Although it agreed that the government had not proven strict but-

for causation, the court nonetheless concluded that Pacheco was

"more germane" for present purposes. Accordingly, the court held

that departing under section 5K2.1 was permissible because the

drugs distributed by the appellant were a contributing and

meaningful cause of Gavin's death.

- 9 - Whether there is an inherent tension (or even an

irreconcilable conflict) between the holdings of Burrage and

Pacheco is an interesting question. In the end, however, it

presents a conundrum that we need not resolve today. See Privitera

v. Curran (In re Curran),

(1st Cir. 2017)

(explaining that "courts should not rush to decide unsettled issues

when the exigencies of a particular case do not require such

definitive measures"). Because the district court made pellucid

that it would have imposed the same sixty-month sentence as an

upward variance and because (as we explain below) the sentence is

fully supportable as an upward variance, we need not inquire into

the bona fides of the upward departure. Even if the sentencing

court's section 5K2.1 departure was improvident, any error in

invoking a departure guideline is harmless where, as here, the

district court would have imposed exactly the same sentence by

means of a variance. See Aponte-Vellón,

. We turn,

then, to whether the sentencing court committed procedural error

in relying upon the association between the offense conduct and

Gavin's death as a factor in constructing its upwardly variant

sentence.

B.

A variant sentence, unlike a departure, is not hemmed in

by the language of a particular guideline. Instead, it is a

product of the sentencing court's weighing of the myriad factors

- 10 - enumerated in

(a). See Rodríguez-Reyes,

; Aponte-Vellón,

. As a general matter, a

sentencing court is free to use any relevant factor, reliably

proven, as a basis for varying up or down from the guideline range.

See Matos-de-Jesús,

; United States v. Díaz-Arroyo,

, 130 n.3 (1st Cir. 2015); cf. Koon v. United States,

(1996) (observing that "Congress did not grant

federal courts authority to decide what sorts of sentencing

considerations are inappropriate in every circumstance"). With

this understanding, we focus the lens of our inquiry on whether

the challenged sentence, when evaluated as an upward variance, is

vulnerable to the appellant's claim of procedural error.

Our review is for abuse of discretion. The abuse-of-

discretion rubric is not monolithic. Under it, "we afford de novo

review to the interpretation and application of the sentencing

guidelines, evaluate the sentencing court's factfinding for clear

error, and assay its judgment calls for abuse of discretion."

United States v. Fernández-Garay,

(1st Cir. 2015).

In conducting this tamisage, we remain mindful of the respect that

we owe to fact-intensive sentencing determinations. See Martin,

. We also remain mindful that a sentencing court

should strive to "custom-tailor an appropriate sentence" in every

case. Flores-Machicote,

.

- 11 - When a sentencing court fashions a sentence that varies

from the GSR, the premise for such a variance ordinarily must "be

rooted either in the nature and circumstances of the offense or

the characteristics of the offender; must add up to a plausible

rationale; and must justify a variance of the magnitude in

question." Martin,

. This does not mean, though,

that everything about a particular offense or offender can be given

weight in the sentencing calculus. See, e.g., USSG §5H1.10

(providing that race, sex, national origin, creed, religion, and

socioeconomic status "are not relevant" sentencing factors);

United States v. Vázquez-Méndez,

(1st Cir. 2019)

(explaining that a "court may not impose or lengthen a prison

sentence [primarily] in order to promote a defendant's

rehabilitation"). Other factors may be simply too remote or

tangential to warrant inclusion in the sentencing calculus. See

United States v. Roberson,

(7th Cir. 2007)

(noting that "the factors on which" district court relied were

"too attenuated" to justify sentence), abrogated on other grounds

by Dean v. United States,

(2017). The possibility

of overinclusiveness brings us to the heart of the appellant's

procedural plaint. He claims that the court erred by giving weight

to Gavin's death in constructing its upwardly variant sentence

because the death was not linked to the offense of conviction (the

appellant's drug sale) by a strict but-for causal chain. The

- 12 - appellant suggests that, without proof that the fentanyl-laced

substance was the strict but-for cause of the fatality, placing

Gavin's demise into the sentencing mix was unreasonable.

This suggestion lacks force. Congress has established

that, apart from relevance and reliability, "[n]o limitation shall

be placed on the information concerning the background, character,

and conduct of a person convicted of an offense which a court of

the United States may receive and consider for the purpose of

imposing an appropriate sentence."

; see United

States v. Viloria-Sepulveda,

(1st Cir. 2019). The

essence of this principle is captured in

(a), which

enumerates, albeit in general terms, a broad array of categories

of information that may be factored into the sentencing calculus.

Consistent with this principle, sentencing courts have

long considered "more than charged conduct in fashioning

sentences." United States v. Anonymous Defendant,

(1st Cir. 2010); see United States v. González-Rodríguez,

(1st Cir. 2017) (concluding on plain error review that

consideration of uncharged criminal conduct was not procedurally

unreasonable). Under this umbrella, a sentencing court may give

weight to the harm done by the defendant in the course of

committing the offense of conviction. See United States v. Lente,

(10th Cir. 2014); United States v. Scherrer,

(1st Cir. 2006) (en banc); see also Payne v.

- 13 - Tennessee,

(1991) ("Courts have always taken

into consideration the harm done by the defendant in imposing

sentence . . . .").

The short of it is that section 3553(a) broadly invites

a sentencing court to consider relevant and reliable information

concerning the offense of conviction. See, e.g., Matos-de-Jesús,

; Díaz-Arroyo,

n.3. To this end,

the statute specifically directs the court to consider the "nature

and circumstances of the offense."

(a)(1).

Gavin's death was an important part of the manuscript of the crime

and, thus, was relevant to the question of punishment. Cf. United

States v. Severino-Pacheco,

(1st Cir. 2018)

(affirming upward variance partially based on dangerousness of

defendant's conduct). In addition, the court had before it a

surfeit of reliable and relevant information, including (among

other things) Gavin's death certificate, the medical examiner's

report, Dr. Arden's testimony, and the undisputed facts set out in

the PSI Report. This evidence amply chronicled the circumstances

of Gavin's death and tied that event to the offense of conviction.

Although the tie fell short of strict but-for causation,

no authority prohibits a sentencing court contemplating a variant

sentence from using harm as a factor in the absence of such

causation. Here, moreover, the causal connection between the

appellant's conduct and Gavin's death was far from remote. The

- 14 - court supportably found as a fact that the fentanyl, either by

itself or in combination with the other toxins in Gavin's system,

was a contributing cause of Gavin's death. That is to say, the

amount of fentanyl could have been independently fatal, and its

effect could not be separated from that of the other toxins.

Despite the absence of strict but-for causation, the district court

— on this record — did not abuse its discretion by considering in

its decision to impose an upward variance the fact that Gavin died

after using the fentanyl-laced substance knowingly sold to him by

the appellant. Consequently, we reject the appellant's claim of

procedural error.

C.

The appellant's remaining contention is that his sixty-

month sentence was substantively unreasonable. Specifically, he

contends that given the lack of a strict but-for causal connection

between his conduct and Gavin's death, imposing a sentence that

more than quadrupled the top of the GSR was excessive. In his

view, there was no "sound policy reason" for so draconian an upward

variance.

Preserved challenges to the substantive reasonableness

of a sentence are reviewed for abuse of discretion. See Matos-

de-Jesús,

. When performing this review, "we cannot

desultorily substitute our judgment for that of the sentencing

court." Martin,

. In the last analysis, "[t]here

- 15 - is no one reasonable sentence in any given case but, rather, a

universe of reasonable sentencing outcomes." United States v.

Clogston,

(1st Cir. 2011).

We afford "due deference to the district court's

decision that the § 3553(a) factors, on a whole, justify the extent

of the variance." Martin,

(quoting Gall v. United

States,

(2007)). This deference obtains even

where, as here, the extent of an upward variance is substantial.

See Flores-Machicote,

. When all is said and done,

"[a] sentence is substantively reasonable so long as it rests on

a plausible sentencing rationale and exemplifies a defensible

result." United States v. Milán-Rodríguez,

(1st

Cir. 2016) (quoting Fernández-Garay,

).

Here, the appellant asserts that his sentence was

substantively unreasonable because the evidence was "not

sufficient to establish a reliable or accurate link to" Gavin's

death. To the extent that this assertion merely repackages the

argument that the court could not consider Gavin's demise as a

sentencing factor without strict but-for causation, we already

have rejected it. And as we have pointed out, the sentencing court

supportably found that there was a meaningful causal link between

the appellant's conduct and Gavin's death. Absent an abuse of

discretion, we must defer to this finding. See Martin, 520 F.3d

- 16 - at 92. Based on the extensive causation evidence before the

district court, we discern no abuse of discretion here.

More generally, the sentencing court made plain that the

appellant's sentence was not dictated by any single factor but,

rather, by a collocation of factors. The court found, for example,

that the GSR did not come close to reflecting the seriousness of

the offense because it did not account for Gavin's death. See

(a)(2)(A); see also United States v. Bollinger,

(8th Cir. 2018) (concluding that sentence more

than ten times top of GSR was substantively reasonable when

trafficked heroin resulted in death). So, too, the court noted

that although the appellant did not intend to cause Gavin's death,

he was aware that the substance he sold to Gavin contained fentanyl

and, thus, he knew he was risking Gavin's life. Throughout, the

court stressed the grave consequences of the appellant's offense:

the tragic and premature death of a young veteran and how the

appellant's conduct played into the opioid epidemic ravaging the

community.

There was more. "Deterrence is widely recognized as an

important factor in the sentencing calculus." Flores-Machicote,

; see

(a)(2)(B). Here, the court

supportably found that a within-the-range sentence would not serve

as an effective deterrent to other drug traffickers tempted to

turn a blind eye to the dangers of fentanyl. In the court's view,

- 17 - distributing a substance known to contain fentanyl was "extremely

dangerous" based on its potency and known lethality.

The sentencing court was correct to view the facts and

circumstances of the appellant's case holistically. See Martin,

. Taken collectively, the court's stated sentencing

purposes and its findings concerning the nature and circumstances

of the offense comprise a sentencing rationale that plausibly

supports a substantial upward variance.

By the same token, the sentence achieves a defensible

result. At the disposition hearing, the district court emphasized

that the drugs the appellant sold to Gavin contained fentanyl;

that fentanyl poses an extreme peril to human life; and that the

appellant was chargeable with knowledge of this special danger.

Because the appellant's conduct knowingly risked Gavin's life and

because his fentanyl contributed meaningfully to Gavin's death,

the court reasonably concluded that a substantial upward variance

was appropriate.

Nor do we regard the extent of the upward variance as

exceeding the wide margins of the court's discretion. Even though

the upward variance was substantial, both the consequences of the

appellant's wrongdoing and the need to deter similar criminal

conduct were also substantial. Moreover, the upwardly variant

sentence was well below the statutory maximum of twenty years, see

(b)(1)(C), and three full years below the ninety-

- 18 - six months suggested by the prosecutor at sentencing. Viewing the

sixty-month sentence in light of all the facts and circumstances

of the case, we discern no abuse of discretion. The sentence was

not outside the universe of reasonable sentencing outcomes. We

hold, therefore, that the sentence was substantively reasonable.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

the challenged sentence is

Affirmed.

- 19 -