United States v. Carvajal, 85 F.4th 602

On June 13, 2019, Richard Tonks was found dead; toxicology showed fentanyl and cocaine. No autopsy was performed and the needle's contents were not tested.
Texts and Facebook messages between Tonks and Bernardito Carvajal documented repeated sales of "white" and "brown" (alleged slang for cocaine and fentanyl) in the days before Tonks's death.
On July 31, 2019, an undercover buy-bust arrested Carvajal after he sold fentanyl; testing confirmed the substance was fentanyl.
A federal jury convicted Carvajal of distributing fentanyl (two counts) but acquitted him of distributing cocaine and of causing Tonks's death.
At sentencing the district court denied a two-level Guidelines reduction for acceptance of responsibility, found by a preponderance of the evidence (relying on trial testimony) that Carvajal's sales caused Tonks's death, and imposed a 120-month sentence (above the PSR Guidelines range of 51–63 months) as an upward variance under 18 U.S.C. § 3553(a).
Carvajal appealed, arguing the court improperly relied on acquitted conduct (violating due process) and should have granted the acceptance-of-responsibility reduction; the First Circuit affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Eligibility for § 3E1.1 acceptance-of-responsibility reduction	Carvajal did not accept responsibility at sentencing; reduction not warranted	Carvajal: his opening statement admitting sales shows acceptance and entitlement to 2-level reduction	Denied — no pretrial admissions or conduct showing "rare situation"; trial statements alone insufficient.
Use of acquitted conduct at sentencing	Court may consider acquitted conduct if proved by preponderance; justifies upward sentence	Carvajal: using acquitted conduct to increase sentence violates due process and jury trial rights	Rejected — controlling precedent allows consideration of acquitted conduct under preponderance standard.
Factual finding that defendant caused death	Government: preponderance of evidence (experts + messages) shows Carvajal supplied both drugs and caused death	Carvajal: expert conflicts, lack of autopsy, ambiguous slang, jury acquitted on death causation	Affirmed — district court credibility determinations and reliance on record not clearly erroneous.
Substantive reasonableness of 120-month variance	Government: § 3553(a) factors (seriousness, deterrence, impact) justify upward variance	Carvajal: variance improperly punishes acquitted conduct; excessive compared to Guidelines and precedent	Affirmed — sentence within statutory maximum, not an extreme Lombard case; variance was plausible and defensible.

United States v. Watts, [citation="519 U.S. 148"] (per curiam) (upholding judge consideration of acquitted conduct at sentencing under preponderance standard)
United States v. Meléndez-González, [citation="892 F.3d 9"] (1st Cir. 2018) (First Circuit permits consideration of acquitted conduct if proved by preponderance)
United States v. Martí-Lón, [citation="524 F.3d 295"] (1st Cir. 2008) (same ruling on acquitted conduct at sentencing)
United States v. Lombard, [citation="72 F.3d 170"] (1st Cir. 1995) (extreme-case limit on sentencing based on acquitted conduct)
Gall v. United States, [citation="552 U.S. 38"] (2007) (standard for reviewing substantive reasonableness of variances under § 3553(a))
United States v. Ofray-Campos, [citation="534 F.3d 1"] (1st Cir. 2008) (district court must provide especially compelling reasons for very large variances that double-count Guidelines factors)
United States v. Heindenstrom, [citation="946 F.3d 57"] (1st Cir. 2019) (approved substantial upward variance in context; used for comparative analysis)
United States v. Deppe, [citation="509 F.3d 54"] (1st Cir. 2007) (explains that acceptance-of-responsibility credit is normally unavailable to defendants who go to trial except in rare situations)