United States v. Lake
530 F. App'x 831
10th Cir.
2013
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Docket

UNITED STATES of America, Plaintiff-Appellee, v. Ramon Lafayette LAKE, Defendant-Appellant.

No. 13-7017.

United States Court of Appeals, Tenth Circuit.

Aug. 8, 2013.

831

Linda A. Epperley, Ryan M. Roberts, Office of the United States Attorney, Muskogee, OK, for Plaintiff-Appellee. Stephen J. Knorr, Esq., Law Office of Stephen J. Knorr, Tulsa, OK, for Defendant-Appellant. Before PORFILIO, ANDERSON, and BRORBY, Circuit Judges.

front this evidence. See

(despite district court‘s determination that any injury was de minimis, a jury could find excessive force when plaintiff was pushed face down onto the pavement, kneed in the small of his back, pinned to the ground, handcuffed, and exposed to tear gas);
(stating that “[p]hysical injury may be the most obvious injury that flows from the use of excessive force,” but “declin[ing] to adopt a ‘bright-line’ standard dictating that force cannot be ‘excessive’ unless it leaves visible cuts, bruises, abrasions or scars“).

The district court‘s order denying Defendant‘s motion for summary judgment is affirmed.

ORDER AND JUDGMENT*

STEPHEN H. ANDERSON, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.

Defendant and appellant, Ramon Lafayette Lake, was indicted along with his son, Landry Sean Lake, on one count of conspiracy to possess with intent to distribute and to distribute controlled substances, in violation of 21 U.S.C. § 846. Mr. Lake pled guilty on October 6, 2012, and was sentenced to 135 months’ imprisonment.

Mr. Lake and his son were both addicted to opiates, including heroin. Landry Lake had been sending heroin by means of an interstate carrier from Arizona to Talihina, Oklahoma, where Mr. Lake lived and practiced dentistry. On March 22, 2013, Mr. Lake received a package containing a small amount of heroin for his own personal use. That same day, Mr. Lake had been in contact with a friend of Landry‘s (an individual known as “BW“), who was also a drug addict. BW came to Mr. Lake‘s house that evening, where Mr. Lake gave BW some of the heroin he had just received for his (BW‘s) own use. The next morning, BW was found dead in his home and the medical examiner determined that acute heroin toxicity was the cause of death.

The 135-month sentence Mr. Lake received was based, in part, on the assessment of a base offense level of thirty-eight under the advisory United States Sentencing Commission, Guidelines Manual (“USSG“), because, pursuant to USSG § 2D 1.1(a)(2), death had resulted from the use of the controlled substance.

Mr. Lake appealed his sentence, arguing that the district court had erred by denying his objection to the application of the “death enhancement” under U.S.S.G. § 2D1.1 and had further erred in refusing to grant his request for a downward variance from the advisory Guidelines range of 135-168 months. Following the filing of Mr. Lake‘s initial appellate brief, the United States Supreme Court issued its decision in

. The Court in Alleyne held that any finding of fact which increases the legally allowed range of possible punishment “constitutes an element of a separate, aggravated offense that must be found by the jury.”
at 2162.

The government has conceded that Alleyne applies to Mr. Lake‘s sentencing proceeding: “Similar to the ‘brandishing’ finding which increased the possible sentence in Alleyne, the district court here made a finding that the conspiracy to distribute heroin resulted in the death of an unindicted co-conspirator. The ‘resulted in death’ finding aggravated the range of punishment.” Appellee‘s Br. at 2. That judicial finding violates the Sixth Amendment and requires a remand for a new sentencing hearing.

Accordingly, we remand this case for new sentencing proceedings, in accordance with

.

REVERSED and REMANDED.

Notes

*
This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 32.1. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.