United States v. Jeff Harris, 44 F.4th 819

Jeff Harris sold capsules containing fentanyl-laced heroin to a confidential source in early 2019; a superseding indictment included a count alleging distribution resulting in a death (M.H.).
Harris pleaded guilty to conspiracy to distribute and possession with intent to distribute fentanyl; the government dismissed the resulting-in-death count but moved at sentencing for an upward departure under USSG §5K2.1, asserting Harris’s sale caused M.H.’s August 2019 fatal overdose.
FBI Agent Ackland testified to statements by D.W. (who survived an August 28, 2019 overdose) identifying a seller called “J.” as Harris in a photo lineup, describing a $20 purchase of four capsules shared with M.H., and consenting to testify; D.W. later died of another overdose before trial.
Corroborating non-hearsay evidence included cell-phone call logs and cell-site analysis placing Harris and D.W. together at the relevant time and the match between D.W.’s account and prior controlled buys Harris admitted in the PSR/plea.
The district court, adopting the PSR, found by a preponderance that Harris’s conduct resulted in death, granted the upward departure, and sentenced Harris to 70 months’ imprisonment (guidelines range was 15–21 months). Harris appealed, arguing the departure rested on inadmissible/unreliable hearsay and speculation.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court erred in granting an upward departure under USSG §5K2.1 based on hearsay/double-hearsay testimony	Harris: the government relied principally on Agent Ackland’s hearsay recounting D.W.’s statements; those layers of hearsay and D.W.’s potential culpability made the evidence unreliable	Gov’t: court may consider hearsay at sentencing if it has sufficient indicia of reliability; here statements were consistent, against interest, and corroborated by phone logs, cell-site data, and prior controlled buys	Affirmed: district court did not clearly err; hearsay at sentencing is permissible under USSG §6A1.3 if sufficiently reliable, and the record provided such indicia to prove death resulted by a preponderance
Whether the 70-month sentence was substantively unreasonable	Harris: departure and resulting sentence were excessive and speculative	Gov’t: sentence falls within court’s discretion and aligns with prior approved upward departures for overdose deaths	Affirmed: sentence not substantively unreasonable and consistent with circuit precedent

United States v. Nossan, 647 F.3d 822 (8th Cir. 2011) (§5K2.1 departure for death requires proof by preponderance)
United States v. Mousseau, 517 F.3d 1044 (8th Cir. 2008) (factual findings about causation reviewed for clear error)
United States v. Shackelford, 462 F.3d 794 (8th Cir. 2006) (hearsay may be considered at sentencing if reliable; statements against interest increase reliability)
United States v. Wise, 976 F.2d 393 (8th Cir. en banc 1992) (district courts determine what evidence is sufficiently reliable to meet government’s burden at sentencing)
United States v. Woods, 596 F.3d 445 (8th Cir. 2010) (officer’s hearsay testimony about victim/cooperator statements admissible if probably accurate)
United States v. Sheridan, 859 F.3d 579 (8th Cir. 2017) (factors for reliability include consistency, timing, declarant’s demeanour, and corroboration)
United States v. Reif, 920 F.3d 1197 (8th Cir. 2019) (affirming substantial upward departure where distribution resulted in overdose death)
United States v. Bollinger, 893 F.3d 1123 (8th Cir. 2018) (affirming significant upward departure in death-resulted drug distribution case)