United States v. MacKay
20 F. Supp. 3d 1287
D. Utah
2014

Background

  • Dr. Dewey C. MacKay III was convicted after trial on 40 counts for unlawful distribution of controlled substances, including two counts (Counts 1 and 2) that carried enhanced penalties because the government alleged the prescribed oxycodone and hydrocodone "resulted from" the victim David Wiriek’s death.
  • At trial the jury received only a bare statutory "resulted from" instruction (stating the government must prove death resulted from the controlled substances and that death was a reasonably foreseeable consequence), with no explanation that "resulted from" required but‑for causation.
  • Medical testimony conflicted: the medical examiner listed combined drug poisoning and pneumonia; government experts said multiple drugs (including oxycodone and hydrocodone) contributed to death but none testified that either opioid alone was a but‑for cause; defense expert attributed death to pneumonia alone.
  • The Tenth Circuit affirmed convictions but remanded for resentencing because the district court’s sentence (240 months) was unclear as to individual counts and directed the court to explain why the sentence was sufficient but not greater than necessary.
  • After remand the Supreme Court decided Burrage v. United States (holding enhanced penalty requires, at least when the distributed drug is not independently sufficient to cause death, that the drug be a but‑for cause of the death), and the district court applied Burrage to vacate MacKay’s § 841(b) enhancements on Counts 1 and 2.
  • The court recalculated the Guidelines (base offense level 28; adjusted to 30 for § 3B1.3; CHC I) producing an advisory range of 97–121 months, but found that range greater than necessary under 18 U.S.C. § 3553(a) and imposed a 36‑month prison term (no supervised release) and $4,000 special assessment.

Issues

Issue Government's Argument MacKay's Argument Held
Scope of resentencing / mandate Remand limited: court should only clarify sentences for other counts and explain downward variance for Count 1 Remand should permit de novo resentencing; Burrage is a change in controlling law allowing more than limit Court recognized Tenth Circuit mandate but found Burrage a dramatic change in controlling law permitting reconsideration beyond narrow remand limits
Effect of Burrage on Counts 1 & 2 Burrage does not undo convictions because the jury could have applied a but‑for meaning or the law‑of‑the‑case forecloses reconsideration Burrage requires vacatur because jury was not instructed that "resulted from" requires but‑for causation and evidence did not show either opioid alone was a but‑for cause Court applied Burrage, concluded jury instruction was insufficient and evidence did not establish but‑for causation, and vacated the enhanced penalties on Counts 1 and 2
Adequacy of jury instruction on "resulted from" Jury’s plain reading sufficed; no contributing‑cause instruction was given so Burrage is inapplicable Instruction was insufficient without a but‑for explanation; lay jurors could not be relied upon to infer but‑for causation Court held bare statutory language was inadequate post‑Burrage and vacated the enhancement convictions
Appropriate sentence after vacatur (Implicit) Court should only clarify previously imposed sentence and/or reimpose similar punishment within mandate Court should consider full resentencing factors; Burrage affects sentencing and may reduce exposure Court recalculated Guidelines, found 97–121 months advisory but imposed a non‑Guidelines 36‑month sentence after 18 U.S.C. § 3553(a) analysis (deterrence, defendant’s health, low recidivism risk)

Key Cases Cited

  • United States v. MacKay, 715 F.3d 807 (10th Cir. 2013) (appellate decision affirming convictions and remanding for resentencing due to unclear aggregate sentence)
  • Burrage v. United States, 134 S. Ct. 881 (U.S. 2014) (holding § 841(b) enhancement requires but‑for causation when the distributed drug is not independently sufficient to cause death)
  • United States v. Webb, 98 F.3d 585 (10th Cir. 1996) (mandate‑rule limits de novo resentencing; exceptions exist)
  • United States v. Moore, 83 F.3d 1231 (10th Cir. 1996) (identifying narrow exceptions that permit departure from an appellate mandate)
  • Gall v. United States, 552 U.S. 38 (2007) (sentencing courts must calculate Guidelines, consider departures, and explain reasonableness under 18 U.S.C. § 3553(a))
  • Rita v. United States, 551 U.S. 338 (2007) (courts must adequately explain sentencing decisions)
  • Alleyne v. United States, 133 S. Ct. 2151 (2013) (fact increasing mandatory minimum is an element of the offense that the government must prove beyond a reasonable doubt)
  • Arizona v. California, 460 U.S. 605 (1983) (law‑of‑the‑case doctrine summary)
  • Rohrbaugh v. Celotex Corp., 53 F.3d 1181 (10th Cir. 1995) (appellate decision establishes law of the case on remand)
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