OPINION AND ORDER
On Mаy 27, 2015, Defendant Ryan John Snider (“Snider”) moved to vacate, set aside, or correct his conviction and sentence under 28 U.S.C. § 2255 ■(“§ 2255”). He argues that in light of both newly discovered evidence and the standard announced in Burrage v. United States, —— U.S. ——,
STANDARDS
Section 2255 permits a federal prisoner in custody under sentence to move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:
the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral аttack ....
§ 2255(a). .
A petitioner seeking relief under § 2255 also must file his or her motion within the one-year statute of limitations. The limitations period' begins to run on the latest of" four date's:' : 1 •’
(1) the date .on which the judgment of conviction becomes final; (2) the, date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
§ 2255(f).
Under § 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section ‘[ujnless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Blaylock,
If - a court denies a habeas petition, the court may issue a certificate of appealability “if jurists of reason could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that jurists' could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell,
BACKGROUND
A. Snider’s Guilty Pleas and Sentencing
Mr. Kraig Crow, a 19-year-old recent high school graduate, died oh August 21, 2006. On the afternoon of his death, Mr. Crow purchased seven grams of powder cocaine from a friend. The friend became concerned that Mr. Crow might attempt to overdose on the cocaine and alerted Mr. Crow’s girlfriend. Mr. Crow’s girlfriend and parents contacted the police with concerns that Mr. Crow was suicidal, and the police found Mr. Crow’s body in a park later that night. At the scene of Mr. Crow’s death, police found a plastic bag containing white powder residue and an empty prescription pill bottle with the label torn off. A toxicology report showed that at the time of his death, Mr. Crow had in his blood cocaine and an opioid medication called propoxyphene.
On October 11, 2007, Snider entered a plea of guilty to the charge of distributing cocaine in violation of 21 U.S.C. §§ 841(a) and 841(b)(1)(C). He admitted that on approximately August 21, 2006, he sold a quantity of cocaine that, through a chain of subsequent sales, was sold to Mr. Crow, who died as a result of using the cocaine. The crime carried a maximum sentence of 20 years imprisonment.
The parties agree that defendant’s relevant conduct pursuant to U.S.S.G. §§ 1B1.3 and 2Dl.l(a) is between 50 and 100 grams of cocaine. The parties further agree that the offense of conviction establishes that death resulted from theuse of the controlled substance and thus defendant’s initial base offense level is 38, prior to adjustments. 3
The U.S. Probation Office initially recommended 168 to 210 months of imprisonment based on the overdose death. The U.S. Probation Office further recommended an additional sentencing enhancement of two levels based on the recovery of two firearms at Snider’s residence on April 4, 2007, for a total recommendation of 210 to 262 months’ imprisonment. Snider’s substantial assistance to the government, however, led the parties to agree to a jointly-recommended downward departure of 72 months of imprisonment..
Before sentencing, Snider was released from custody on pretrial supervision. While on pretrial supervision, but after the entry of his guilty plea, Snider was arrested for selling cocaine to a police informant on approximately January 10, 2008. Because of Snider’s new criminal conduct, the U.S. Probation Office recommended against a reduction under the advisory guidelines, for acceptance of responsibility and suggested a sentence of 240 months of imprisonment. Based on all relevant conduct, Snider’s advisory sentencing guideline range was 292 to 365 months’ imprisonment.
On April 11, 2008, Snider entered a guilty plea in the second ease against him based on his distribution of cocaine while on pretrial supervision.
Pursuant to U.S.S.G. § 5K1.1, 18 U.S.C. §§ 3553(a) and 3553(e), the legal issues involved in the case, and so long as defendant demonstrates an acceptance of responsibility as explained above by resolving all of his current criminal matters and provides substantial assistance in the prosecution of others as outlined above) the parties will recommend that the court sentence the defendant, on both of his cases, to a total sentence of 144 months imprisonment, to be followed by- three years of supervised release.5
In his guilty plea, Snider waived many of his rights both to appeal and file for рost-conviction relief, as follows:
Waiver of Appeal/Post-Conviction Belief: Defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds unless the court imposes a sentence which exceeds the parties [sic] recommended sentence. Should defendant seek an appeal, despite this waiver of that right, the USAO may take any position on any issue on appeal. Defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds of ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 336 and18 U.S.C. § 3582(c)(2). 7
On April 21, 2008, U.S. District Judge Ancer L. Haggerty sentenced Snider to 144 months of imprisonment, followed by three years of supervised release, in both cases, Judge Haggerty determined that the sentences in the two cases would run concurrently. Judge Haggerty adоpted most of the Presentence Report from the U.S. Probation Office, but he did not impose an enhancement for the firearms found at Snider’s residence.
In 2008, U.S.S.G. § 2Dl.l(a)(2) set the base offense level at 38 for any conviction under 21 U.S.C. §§ 841(a) and 841(b)(Z)(C) that establishes that death or serious bodily injury resulted from use of an unlawfully distributed substance. With a Criminal History Category of I, the offense level given to Snider in the Presentence Investigation Report, an offense level of 38 carried an advisory guideline range of 235 to 293 months of imprisonment. U.S.S.G. Ch. 5, Pt. A. Without conviction of the crime of distributing drugs resulting in death under 21 U.S.C. § 841(b)(1)(C) and the sentence enhancement under U.S.S.G. § 2Dl.l(a)(2), the base offense level for distribution of between 50 and 100 grams of cocaine—the amount for which Snider was charged—was 16. U.S.S.G. § 2Dl.l(c)(12).
But fоr his conviction for distributing drugs resulting in death, Snider would not have been subject to a potential mandatory minimum of 20 years. In addition, a much lower advisory sentencing guideline range would have applied. Snider has served more than seven years of his 144-month sentence and has a scheduled release date of June 27, 2017. After Snider filed his § 2255 motion, the case was reassigned to this Court.
B. Legal Developments after Snider’s Sentencing—Burrage
On January 27, 2014, the Supreme Court decided Burrage v. United States, —— U.S. ——,
The Supreme Court offered several examples of what could constitute a but-for cause under 21 U.S.C. § 841(b)(1)(C). If A shoots B, who gets hit and dies, A is the but-for cause of B’s death, even “if the predicate act combines with other factors to produce the result, so long as the other factors alone would not have done so—if, so to speak, it was the straw that broke the camel’s back.” Id. at 888. As another example, the Supreme Court noted that “if poison is administered to a man debilitated by multiple diseases, it is a but-for cause of death even if those diseases played a part, in his demise, so long as, without the incremental effect of the poison, he would have lived.” Id. Similarly, the Court explained that if a home team wins a baseball game 1-0 and the lióme team’s leadoff batter scores a home run, then “the victory resulted from the home run.... It is beside the point that thе victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision to put the leadoff batter in the lineup, and the league’s decision to schedule the game.” Id. These other factors “merely played a nonessential contributing role in producing the [win],” Id. With these examples in mind, the Supreme Court concluded that heroine was not the but-for cause of the decedent's death where no expert could say that the heroine would have been fatal without the cocktail of other drugs in the decedent’s system.
C. Factual Developments after Snider’s Sentencing
Propoxyphene—the second drug found in Mr. Crow’s blood at the time of his death—was prescribed for pain relief and sold either as a single ingredient (a medication commercially known as Darvon) or in combination with acetaminophen (a medication known commercially as Darvo-cet). When metabolized in the human body, propoxyphene yields norpropoxyphene. In 2010, new evidence camе to light about the potentially fatal effects of propoxyphene and norpropoxyphene. On November 19, 2010, the U.S. Food and Drug Administration (“FDA”) concluded that even standard doses of propoxyphene could cause fatal heart rhythm abnormalities. At the FDA’s request, the drug manufacturer Xanodyne Pharmaceutical withdrew propoxyphene from the U.S. market.
Snider argues that this new medical evidence about the fatal effects of propoxy-phene and norproxyphene establishes that he is “actually innocent” of distributing a drug that served as the but-for cause of Mr. Crow’s death. In support of his argument, Snider submitted an expert report, dated July 7, 2015, from Richard Stripp, Ph.D., a professional toxicologist. Dr. Stripp reviewed Mr. Crow’s autopsy and toxicology reports. According to Dr. Stripp, the evidence available to him suggests that Mr. Crow ingested cocaine through insufflation (the act of blowing something, such as a drug in powdered form, into a body cavity). Dr. Stripp opines
William J. Brady, M.D., also reviewed Mr. Crow’s autopsy and toxicology reports on behalf of Snider and authored his own report dated July 27, 2015. In his report, Dr. Brady notes that Mr. Crow’s toxicology report showed “a significantly high level of cocaine.”
In response to the reports submitted by Snider, the government submitted a memorandum dated December 9, 2015, from Larry V. Lewman, M.D., the Deputy Medical Examiner for the State of Oregon. Dr. Lewman also authored the original autopsy report regarding Mr. Crow’s death. In the memorandum of December 9, 2015, Dr. Lewman states that “it is [his] opinion that the propoxyphene ingested played no significant role in Mr. Crow’s death.”
After reviewing the statements of Dr. Stripp, Dr. Brady, and Dr. Lewman, the Court held an evidentiary hearing on March 1, 2016. The Court’s factual findings from that hearing are stated below.
DISCUSSION
Snider argues that new evidence and the decision in Burrage render his sentence unlawful. According to Snider, the discovery of propoxyphene’s dangerous effects and its removal from the U.S. market establish that cocaine was not the but-for cause of Mr. Crow’s death, as required by Burrage. Therefore, argues Snider, he entered his plea of guilty to a crime that he did not commit, or for which there is no factual basis. Snider further argues that his attenuation from the actual sale of cocaine to Mr. Crow and Mr. Crow’s suicidal intent show that Snider is actually innocent of causing Mr. Crow’s death. The government responds that: (1) Snider waived his right to make this collateral attack in his plea agreement; and (2) even if Snider did not waive his right, Burrage does not affect his sentence because Snider’s conduct was the but-for cause of Mr. Crow’s death.
A. Whether Snider Knowingly and Voluntarily Waived His Right to File a Motion Under § 2255
Generally, waivers of the right to collaterally attack a sentence under § 2255 are valid. The Ninth Circuit recognizes the contractual nature of plea agreements and measures plea agreements by “basic principles of contract interpretation.” Medina-Carrasco,
In United States v. Navarro-Botello,
B. Whether Snider’s Waiver of the Right to File a §. 2255 Motion Applies to Rights Not in Existence at the Time of the Plea Agreement
Despite his valid waiver of his right to bring a collateral attack on his sentence, Snider argues that the waiver should not apply in this case because Bur-rage altered his substantive rights. In general, сhanges in substantive law do. not invalidate plea agreements. The Ninth Circuit has held that “a change in the law does not make a plea involuntary and unknowing,” United States v. Cardenas,
In some cases, however, a defendant may use a new rulé announced by the Supreme Court to attack the constitutionality of a guilty plea in a habeas proceeding. See United States v. Benboe,
New procédural rules generally do not apply retroactively; new substantive rules generally do. Schriro,
In United States v. Johnson, the Ninth Circuit directly addressed the question whether a supervening change in the law invalidates appeal waivers, or what the Ninth Circuit called the “temporal scope” of appeal waivers.
Other circuits that have addressed this question similarly have held that broad waivers of the right to appeal or collaterally attack, a sentence “are effective even if the law changes in favor of the defendant after sentencing.” United States v. Bownes,
Apart from the fact that the government would insist on a compensating concession, and apart from the further fact that rescission would relieve the government from whatever concessions it had made to obtain the agreement, the government would be able to rescind a plea agreement favorable to the defendant if an intervening decision had brought about a ‘sea change’ in favor of the government; what is sauce for the goose is sauce for the gander.
Id. at 637-38 (citations omitted).
In the Ninth Circuit, an appeal waiver made knowingly and voluntarily and otherwise in compliance with Federal Rule of Criminal Procedure 11 will bar collateral attacks on a sentence in all but three circumstances: (1) the sentencing judge informs a defendant that he or she retains the right to appeal; (2) the defendant’s “sentence does not comport with the terms of thе plea agreement”; or (3) “the sentence violates the law.” United States v. Biller,
Thus, a mere change in the law, even if the change is a retroactive new rule, is insufficient to render Snider’s waiver of his right to file a § 2255 motion unenforceable. He waived his right to file a § 2255 collateral attack “challenging any aspect of the conviction or sentence.”
C. Whether Snider’s Sentence Was “Illegal”
1. Legal Framework
As an initial matter, the Supreme Court and the Ninth Circuit have not yet decided
Snider argues that the Eighth Circuit has found Burrage to be retroactive and that this Court should follow suit. In Rag-land v. United States, the Eighth Circuit vacated the district court’s denial of § 2255 relief and remanded the case to the district court to reconsider the defendant’s conviction in light of Burrage.
The Court notes that the Ninth Circuit appears to have always interpreted 21 U.S.C. § 841(b)(1)(C) as requiring but-for causation. In United States v. Houston, decided three years before Snider’s sentencing, the Ninth Circuit stated: “Cause-in-fact is required by the ‘results’ language [of 21 U.S.C. § 841(b)(1)(C)]
This Court need not, however, resolve the question of whether Burrage announces a new retroactive rule. The government concedes that Snider’s § 2255 motion is timely under 28 U.S.C. § 2255(f)(3) to the extent that the motion relies on the argument that Burrage announces a new substantive rule that applies retroactively. The government does not contend that the Burrage standard is inapplicable in this case. Thus, the Court considers whether the evidence was sufficient to convict him of distributing a drug that “caused” Mr. Crow’s death under the rule announced in Burrage in combination with the new evidence concerning the effects of propoxyрhene."
In Burrage, two medical experts testified regarding the multiple drugs in the decedent’s system at the time of death. The metabolites of heroin, the drug sold by the defendant, were present along with codeine, alprazolam, clonazepam metabolites, and oxycodone. Burrage,
The Burrage court expressly refrained from deciding whether a “special rule” applies “when multiple sufficient causes independently, but concurrently, produce a result.” Id. The Supreme Court held “that, at least where use of the drug distributed by the defendant is not an independently sufficient cause of the victim’s death .,, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a-but-for cause of the death — ” Id, at 892 (emphasis added). The Burrage decision strongly implies, however, that the but-for standard ordinarily applicable under 21 U.S.C. § 841(b)(1)(C) either does not apply to or may encompass a situation when use of a drug distributed by a defendant is independently sufficient to cause death despite the presence of other concurrent sufficient causes. In this unique circumstance, the Burrage decision suggests that 21 U.S.C. § 841(b)(1)(C) still imposes criminal liability; see also Price Waterhouse v. Hopkins,
2. Factual Findings
In this case, Snider offers the written opinions of two experts explaining that propoxyphene played a role in Mr. Crow’s death. In light of recent evidence regarding propoxyphene, neither of defendant’s two experts was prepared to say that Mr. Crow would have lived had he taken the dose of propoxyphene alone, without cocaine. In their written reports, the .experts similarly appeared to be unable to conclude that Mr. Crow would have died had he taken the dose of cocaine alone, without propoxyphene. On the other hand, the government offers .the written opinion of the Deputy Medical Examiner, Dr. Lewman, who opined in his written report that the propoxyphene ingested played no significant role in Mr. Crow’s deаth.
(1) Is it your opinion beyond a reasonable doubt that Mr. Crow would have lived if he had not taken cocaipa?”25
(2) Is it your opinion beyond a reasonable doubt that Mr. Crow still would have died after taking cocaine if he did not also take the other medications that produced the levels of propoxyphene or norpropoxyphene that were found in his system? In other words, is it your opinion beyond a reasonable doubt that Mr. Crow still would have died as a result of taking or ingesting only cocaine?26
The Court gave both expert’s the option of answering “yes,” “no,” or “other,” and then the Court gave counsel for both parties the opportunity to question the experts about their answers. Dr. Lewman answered “yes” to the first question and “yes” To the second question. Dr. Brady answered “other” to the first question and “yes” to the second question.
Dr. Lewman testified first. He stated that he answered “yes” to the first question because'he believed propoxyphene played no role in Mr. Crow’s death and was present in Mr. Crow’s system at a therapeutic level. Dr. Lewman emphasized the ratio of the metabolite norpropoxy-phene to the actual drug propoxyphene, which was three to one. According to Dr. Lewman, the higher level of norpropoxy-phene was consistent with Mr. Crow taking propoxyphene at only therapeutic levels over time because norpropoxyphene gradually accumulates in the body. Dr. Lewman acknowledged, however, that there was no evidence to suggest that Mr. Crow had a prescription for propoxyphene.
Dr. Lewman testified that he answered “yes” to the second question based on the extremely high level of cocaine in Mr. Crow’s system. Further, according to Dr. Lewman, the history surrounding Mr. Crow’s death informs his opinion. The evidence shows that Mr. Crow called friends to say that he had taken too much cocaine and then was found dead within two hours of those calls. Dr. Lewman found the timing of the сalls and Mr. Crow’s sudden death to be consistent with a cocaine overdose. The swift post-mortis stiffening of Mr. Crow’s body also strongly suggests that he died suddenly after ingesting a stimulant drug. Because cocaine is a stimulant, whereas propoxyphene is a depressant, Dr. Lewman believed that the state of Mr. Crow’s body was more consistent with a cocaine overdose than a combined cocaine-propoxyphene or propoxyphene overdose.
'Dr. Brady, testifying for the defense, next had an opportunity to explain his answers to the Court’s questions. Regarding the first question, Dr. Brady stated that the level of propoxyphene that Mr. Crow ingested was within levels reported
With regard to the second question, Dr. Brady explained that he agreed with Dr. Lewman. Dr. Brady believed that Mr. Crow had a fatal level of cocaine in his system that would have been independently sufficient to kill him. When questioned further, Dr. Brady acknowledged that he could not say with certainty that Mr. Crow would have died of a cocaine overdose if he had received medical treatment promptly after ingesting the cocaine alone. Dr. Brady stated, however, that it would be very unusual for someone such as Mr. Crow— who had no known history of regular cocaine use that would have led him to build up a tolerance to the drug—to survive the cocaine concentration found in his blood. Given that Mr. Crow was found dead before anyone could administer medical treatment, Dr. Brady testified that he had no doubt that Mr. Crow ingested a fatal dose of cocaine.
Based on the expert testimony admitted at the hearing, the Court finds that there is insufficient evidence to prove beyond a reasonable doubt that Mr. Crow would have lived had he not taken cocaine. Pro-poxyphene has been known to cause death at the level found in Mr. Crow’s blood. Notwithstanding the ratio of norpropoxy-phene to propoxyphene, there is no evidence that Mr. Crow had a prescription for propoxyphene and regularly took it in doses recommended by a treating physician. Without evidence that Mr. Crow could tolerate therapeutic levels of propoxyphene, the Court cannot rule out that Mr. Crow could have died if he had only taken pro-poxyphene on the night of his death.
The Court also finds, however, that the evidence proves beyond a reasonable doubt that Mr. Crow would have died from the amount of cocaine in his system even without the propoxyphene. Both experts testified that Mr. Crow ingested a fatal dose of cocaine. Although Mr. Crow could potentially have survived if he had received medical attention in time, the evidence shows that he died before anyone could reach him. The precise time and manner of Mr. Crow’s death may have resulted from the combined effects of pro-poxyphene and cocaine, but the cocaine alone would have sufficed to kill him.
3. Legal Conclusions
Unlike in Burrage, the experts in this case agree that the drug distributed by Snider was an independently sufficient cause of Mr. Crow’s death. Burrage left open the possibility that a defendant may be guilty under 21 U.S.C. § 841(b)(1)(C) when use of a drug distributed by the defendant is one of several sufficient causes of death. The Court is not aware of any Ninth Circuit case to the contrary. Because Snider distributed cocaine that was independently sufficient to kill Mr. Crow, Snider violated 21 U.S.C. § 841(b)(1)(C). Accordingly, his sentence for that crime is not illegal, rendering his waiver of the right tо file a § 2255 motion enforceable.
D. Whether Snider is Actually Innocent
Snider also argues that he is actually innocent of distributing drugs that “caused” Mr. Crow’s death under the standard articulated in Burrage and in light of
The Supreme Court has, on several occasions, assumed without expressly deciding that a “freestanding” claim of actual innocence is a cognizable claim on federal habeas review. See House v. Bell,
[Actual innocence] does not merely require a showing that a reasonable doubt exists in the light of the new evidence, but rather that no reasonable juror would have found the defendant guilty. It is not the district court’s independent judgment as to whether reasonable doubt exists that the standard addresses; rather the standard requires the district court to make a probabilistic determination about what reasonable, properly instructed jurors would do. Thus, a petitioner does not meet the threshold requirement unless he persuades the district court that, in light of the new evidence, no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt.
Schlup,
The Ninth Circuit allows defendants to bring freestanding innocence claims to collaterally attack their convictions and sentences. See United States v.
For the reasons already discussed, the Court concludes that Snider has failed to present affirmative proof that he is probably innocent of distributing drugs that resulted in death. In the evidentiary hearing, Snider’s own expert witness, Dr. Brady, stated that he believed Mr. Crow ingested a fatal amount of cocaine regardless of whether propoxyphene also contributed to Mr. Crow’s death. Burrage, at least implicitly, appears to allow an independently sufficient cause of death to satisfy the requirements of 21 U.S.C. § 841(b)(1)(C). Thus, because Snider has not shown that he is actually innocent of the crime of distributing a drüg that resulted in death, Snider’s sentence does not exceed the maximum authorized by law. Snider is not entitled to habeas relief.
CONCLUSION
The Court DENIES Snider’s Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255. Dkt. 59. The Court, however, issues a Certificate of Appealability on the basis that the Court’s decision is based on an interpretation of Burrage that has not yet been expressly endorsed or rejected by either the Supreme Court or the Ninth Circuit.
IT IS SO ORDERED.
Notes
. Metabolites of cocaine and propoxyphene were also found in Mr. Crow’s blood. Metabolites are the intermediate products produced as the body breaks down a substance. See Burrage,
. The applicable statutes, 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), provide that if a person manufactures, distributes, or possesses with the intent to distribute a controlled substance and "if death or serious bodily injury results from the use of such substance,” then the person "shall be sentenced to a term of imprisonment of not less than twenty years or more than life.” Here, Snider was not subject to the otherwise applicable 20-year mandatory minimum sentence because of the government’s motion under United States Sentencing Guidelines ("U.S.S.G.”) § 5K and 18 U.S.C. § 3553(e) (substantial assistance).
. Dkt. 28 at 13 (emphasis in original).
. The government brought the first charge of cocaine distribution in Case No. 07-124-HA, The government brought the second charge of cocaine distribution in Case No. 08-172-HA.
. Dkt. 53 at 5.
. Federal Rule of Criminal Procedure 33 states:
(a) Defendant's Motion. Upon the defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without ;a jury, the court may take additional testimony and.enter a new judgment.
(b) Time to File. (1) Newly Discovered Evidence. Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding ofguilty. (2) Other Grounds. Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.
.Dkt, 53 at 6. 18 U.S.C. § 3582(c)(2) specifies when a court may modify an imposed term of imprisonment:
[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may rеduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
. This base offense level is from the 2008 advisory sentencing guidelines. Under the 2015 advisory sentencing guidelines, the base offense level for distribution of between 50 and 100 grams of cocaine is 14. U.S.S.G. § 2Dl.l(c)(13).
. Senior U.S. District Judge Haggerty retired from federal judicial service on December 31, 2014.
. Dkt. 72-1 at 3.
. Dkt. 72-1 at 3.
. Dkt. 72-1 at 3.
. Dkt. 72-1 at 4.
. Dkt. 72-3 at 1.
. Dkt. 72-3 at 1.
. Dkt. 79 at 2.
. The government stipulates that, to the extent Snider's motion relies on the Supreme Court’s opinion in Burrage, the motion is timely under § 2255(f)(3).
. Dkt. 53 at 6,
. Dkt. 53 at 8.
. The plea agreement specifies that Snider waives his right to file a § 2255 motion except under three circumstances, none of which apply in this case. Snider does not argue that he received ineffective assistance of counsel; lie did not move for a new trial or judgment under Federal Rule of Criminal Procedure- 33 based on newly-discovered evidence within three-years of the entry of his guilty plea; and he does not move to reduce his sentence under 18 U.S.C. § 3582(c)(2) based on changes in the sentencing guidelines made by the Sentencing Commission.
. Some circuits will enforce a valid appeal waiver unless doing so would constitute a "miscarriage of justice.” See United States v. Guillen,
. Dkt. 53 at 6.
. Federal courts have infrequently addressed the problem of concurrent sufficient causes. State courts, however, have more often had occasion to address the issue. Most courts hold that an act that is sufficient to bring about a harm is a cause-in-fact even if the harm would still have occurred in the absence of thе act See, e.g., People v. Lewis,
.The Court did not ask the experts whether they held their opinions to "a reasonable degree of medical certainty” because this question is usually used in civil cases to refer to a preponderance standard. In criminal cases, asking experts to express their opinions to "a reasonable degree of medical certainty” can therefore creаte confusion about the burden of proof. See Jeff L. Lewin, The Genesis and Evolution of Legal Uncertainty About "Reasonable Medical Certainty," 57 Md. L. Rev. 380 (1998), available at, http://digitalcommons. law.umaiyland.edu/mlr/vol57/iss2/4 (last visited on April 7, 2016).
. This is the question that the holding in Burrage appears to require.
. This question relates to the theory of an independently sufficient concurrent cause that Burrage appears to leave open as a possible alternative form of ‘.‘but for” causation.
. Snider also argues that he is actually innocent because his conduct was too attenuated from Mr. Crow’s death—particularly in light of reports that Mr. Crow intended to commit suicide—to serve as a but-for cause. This argument is unavailing because 21 U.S.C. § 841(b)(1)(C) does not require foreseeability or proximate cause. United States v. Houston,