Jennifer Krieger v. United States
2016 U.S. App. LEXIS 20992
| 7th Cir. | 2016Background
- Jennifer Krieger pleaded guilty to distributing a fentanyl (Duragesic) patch given to Jennifer Curry; Curry later died and autopsy detected lethal-range fentanyl plus multiple other drugs.
- The government dropped a superseding indictment’s explicit “with death resulting” allegation but sought a sentencing enhancement under 21 U.S.C. § 841(b)(1)(C), which then allowed a judge (by preponderance) to impose a mandatory 20-year minimum if death resulted from the drug.
- At sentencing the district court found, by a preponderance of the evidence, that Curry’s death resulted from fentanyl and imposed the 20-year mandatory minimum; the court acknowledged it would not have imposed that sentence under a beyond-a-reasonable-doubt standard.
- On direct appeal this court affirmed the sentence under then-controlling law (Apprendi/Harris line) but later Supreme Court decisions (Alleyne and Burrage) changed the law underpinning mandatory-minimum findings and causation required for the § 841 enhancement.
- Krieger filed a § 2255 petition arguing Alleyne and Burrage require vacatur/resentencing; the government conceded Burrage announces a substantive rule that should apply retroactively; the panel analyzed retroactivity and whether the original sentencing findings satisfied Burrage’s but-for causation requirement.
- The panel concluded Burrage applies retroactively, that the district court did not clearly make a Burrage-compliant but-for causation finding, and therefore vacated the sentence and remanded for de novo resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alleyne applies retroactively on collateral review to require jury proof beyond a reasonable doubt for facts increasing mandatory minimums | Krieger: Alleyne requires jury findings and thus should invalidate her judge-found enhancement | Government: Alleyne is procedural and does not apply retroactively | Court: Alleyne is procedural and does not apply retroactively to Krieger (unchanged) |
| Whether Burrage announces a substantive rule that applies retroactively on collateral review | Krieger: Burrage narrowed § 841(b)(1)(C) to require but-for causation and is substantive/retroactive | Government: Conceded Burrage is substantive and applies retroactively | Court: Agreed Burrage is substantive and applies retroactively |
| Whether the district court’s original sentencing finding satisfies Burrage’s but-for causation requirement | Krieger: District court did not make a clear but-for finding; evidence focused on fentanyl but other drugs implicated—insufficient under Burrage | Government: District court’s factual findings (and this court’s prior affirmance) establish fentanyl as the cause, satisfying Burrage | Court: The district court did not clearly find but-for causation; its reasoning used inconsistent and non-Burrage language, so Burrage was not satisfied |
| Remedy: Whether vacatur and de novo resentencing are required | Krieger: Vacatur and resentencing necessary because enhancement cannot stand under Burrage | Government: Argued original findings sustain enhancement | Court: Vacated the sentence and remanded for de novo resentencing; district court may consider death under the Guidelines by preponderance but any § 841 mandatory minimum requires jury finding beyond a reasonable doubt under Alleyne/Burrage |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (statutory fact increasing penalty beyond prescribed maximum must be submitted to jury and proved beyond a reasonable doubt)
- Alleyne v. United States, 133 S. Ct. 2151 (facts that increase mandatory minimums must be found by a jury beyond a reasonable doubt)
- Burrage v. United States, 134 S. Ct. 881 (§ 841(b)(1)(C) enhancement requires the distributed drug to be the but-for cause of death when the drug is not independently sufficient)
- Schriro v. Summerlin, 542 U.S. 348 (new rules apply retroactively on collateral review only when substantive)
- Welch v. United States, 136 S. Ct. 1257 (discussing retroactivity principles for new rules on collateral review)
- United States v. Krieger, 628 F.3d 857 (7th Cir. direct-appeal decision affirming sentence under pre-Alleyne law)
- United States v. Hatfield, 591 F.3d 945 (7th Cir. discussion of muddled causation terminology under § 841(b)(1)(C))
- Crayton v. United States, 799 F.3d 623 (7th Cir. holding Alleyne procedural and not retroactive on collateral review)
- Pepper v. United States, 562 U.S. 476 (vacation of sentence creates a clean slate for resentencing)