893 F.3d 1123
8th Cir.2018Background
- In December 2014 Mitchell Stenger died of acute heroin intoxication after receiving heroin from friend David Bollinger. Bollinger admitted supplying the heroin.
- Stenger was receiving monthly Vivitrol injections (an opioid blocker); Bollinger knew Stenger took Vivitrol and that users often increase heroin use to overcome its effects.
- Bollinger pleaded guilty to distribution of heroin under 21 U.S.C. § 841(a)(1). The advisory Guidelines range was 6–12 months.
- The government moved for an upward departure under USSG § 5K2.1 because Bollinger’s conduct resulted in death; Bollinger conceded a departure was appropriate and sought 60–65 months.
- After a hearing (including expert testimony about Vivitrol and asthma), the district court found Bollinger caused the death, treated Stenger’s Vivitrol use and Bollinger’s knowledge as aggravating, and sentenced Bollinger to 130 months.
- Bollinger appealed, arguing the district court abused its discretion in weighing factors (asthma, Vivitrol knowledge, friendship, and sentencing disparities).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court abused its discretion by relying on Stenger’s asthma as an aggravating factor | Bollinger: asthma was irrelevant because expert said death was heroin intoxication | Court: expert did not rule out asthma’s contribution; court primarily relied on Vivitrol, only possibly asthma | No abuse — court did not give significant weight to an irrelevant factor |
| Whether the court erred in crediting Bollinger’s knowledge of Stenger’s Vivitrol use | Bollinger: he lacked personal knowledge of Vivitrol timing/frequency | Court: Bollinger knew of Vivitrol, that Stenger used more heroin to overcome it, and warned him to “be careful” — supports inference of awareness of risk | No abuse — knowledge supported departure weight |
| Whether treating friendship as aggravating was improper | Bollinger: a friend’s remorse should not increase culpability vs. a stranger/dealer | Court: friendship gave Bollinger particular knowledge of vulnerability and opportunity to avoid supplying heroin | No abuse — friendship increased culpability under §5K2.1 factors |
| Whether the court failed to account for sentencing disparities | Bollinger: other defendants received shorter sentences for comparable conduct | Court: sentencing practices in other districts are not binding; court considered §3553(a) and found departure warranted | No abuse — sentence within reasonable range and not substantively unreasonable |
Key Cases Cited
- United States v. Nossan, 647 F.3d 822 (8th Cir. 2011) (standard for reviewing extent of upward departure and reasonableness)
- United States v. Boss, 493 F.3d 986 (8th Cir. 2007) (abuse-of-discretion standard for weighing sentencing factors)
- United States v. Soliz, 857 F.3d 781 (8th Cir. 2017) (district sentencing practices in other districts are not controlling for disparity analysis)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive reasonableness review of sentences)