A jury convicted Steven Waldrip of distributing heroin under the Controlled Substances Act, 21 U.S.C. § 841(a)(1). Because death resulted from the use of that heroin, Waldrip faced a twenty-year mandatory-minimum sentence. § 841(b)(1)(C). The district court sentenced him to 280 months. On appeal, Waldrip argues that the government provided insufficient evidence to prove that the heroin was a but-for cause of the victim’s death, that § 841(b)(1)(C) is unconstitutionally vague, and that his 280-month sentence violates the Eighth Amendment’s proportionality requirement. We reject those claims.
I. Background
This case concerns a drug deal between Waldrip and Kathi Sweeney and Kyle Wilson. Sweeney and Wilson’s relationship had an inauspicious beginning: they met at a rehab facility iii Rock Island, Illinois, where each was receiving treatment— Sweeney for alcoholism and Wilson for heroin addiction. Wilson’s stay was short lived. After just three days, he decided that the treatment was ineffective and left. But before he left, Sweeney agreed to take him to a different facility once she left the one in Rock Island.
After she had completed her treatment, Sweeney picked Wilson up аt a bus stop,
After reaching Waldrip, Sweeney and Wilson drove to Waldrip’s house. Waldrip got into Sweeney’s car and gave Sweeney directions to another location. There, Sweeney and Wilsоn gave Waldrip forty dollars for two bags of heroin — each containing one-tenth of a gram. Waldrip left and returned about an hour later with the heroin. Afterwards, Sweeney and Wilson took Waldrip back to his house.
Sweeney then drove Wilson to a local CVS, where she purchased the necessary supplies for injecting heroin. In the parking lot, Wilson injected himself and Sweeney.
Sweeney reacted to the heroin almost immediately, locking up and passing out. After initially panicking and leaving, Wilson returned to the car and started to take Sweenеy to a hospital. But on the way, Sweeney woke up and told him to take her home. There, Wilson put a bag of frozen peas on Sweeney’s chest while she lay on her couch — an apparent attempt at preventing Sweeney from dying. Wilson stayed at Sweeney’s house that night.
The next morning, Wilson woke up suffering from withdrawal symptoms. Wilson needed heroin but lacked money, so he stole some of Sweeney’s belongings to pawn for cash. He then left Sweeney’s house for good. Later that day, Sweeney’s sister found Sweeney dead on the couch.
Wilsоn claimed that Sweeney was alive when he left her house and that he did not know Sweeney was dead until the next day when a detective stopped him and started questioning him. Additional investigation led detectives to Waldrip. Several weeks later, in return for a reduced sentenсe, Wilson agreed to testify that Waldrip sold Sweeney and Wilson the heroin. Officers arrested Waldrip after an undercover DEA agent bought heroin from Waldrip three separate times. The government charged Waldrip with one count of distributing heroin to Sweeney and Wilson and threе counts of distributing heroin to the undercover agent. § 841(a)(1). Because Sweeney died from using the heroin that Waldrip sold, the government sought an enhanced sentence under § 841(b)(1)(C) for count one. Waldrip pled guilty to the last three counts but went to trial on the first.
At trial, Waldrip agreed to stipulate that two government experts — one a pathologist and the other a forensic toxicologist— would testify that, but for her use of heroin right before her death, Sweeney would not have died. Both stipulations were read to the jury during the government’s casein-chief.
After the government rested, Waldrip made a Rule 29 motion for judgment of acquittal. Waldrip’s counsel told the district judge that he was “not challenging that the heroin caused the death” but that it was Waldrip who delivered the heroin. (R. 61 at 160-61.) The judge denied the motion. Then, without presenting any evidence, Waldrip rested and renewed his Rule 29 motion “on the same basis” as the first. (R. 61 at 164.) Because nothing had changed in the few minutes since the first ruling, the judge again denied the motion. The jury convicted Waldrip of selling the heroin that caused Sweeney’s death.
Because § 841(b)(1)(C) imposes a twenty-year mandatory-minimum sentence on one who distributes a controlled substance,
II. Analysis
Rather than contest the district court’s rulings on his Rule 29 motions and constitutional challenges to his sentence, Wаl-drip makes new arguments on appeal. Waldrip challenges his conviction by arguing that the government provided insufficient evidence to prove that the heroin was a but-for cause of Sweeney’s death. Wal-drip also makes new constitutional arguments about his sentеnce. First, he argues that the increased penalty for distributing a controlled substance, the use of which results in death, is unconstitutionally vague because it does not require the defendant to intend or know that the controlled substance will cause death. Second, he argues that his 280-month sentence on count one violates the Eighth Amendment’s proportionality principle. We reject those arguments below.
A. Sufficiency of the Evidence
The Supreme Court has held that, at least when “the drug distributed by the defendant is not an independently sufficient cause of the victim’s death or serious bodily injury, 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 or injury.” Burrage v. United States, — U.S. -,
“Waiver is the intentional relinquishment of a known right” and precludes appellate review by extinguishing any error that occurred. United States v. Burns,
While making the first Rule 29 motion for judgment of acquittal, Waldrip’s counsel told the district judge that he was “not challenging that the heroin caused” Sweeney’s death. (R. 61 at 160.) Counsel instead argued only that the government presented insufficient evidence to prove that Wal-drip sold the heroin to Sweeney and Wilson. When renewing the motion moments later, counsel stated that he wаs renewing the motion “on the same basis” as the earlier motion. (R. 61 at 164.) And during closing argument, counsel told the jury that “we’re not contesting whether Miss Sweeney died by a heroin overdose.” (R. 77 at 32.) There is no clearer example of an intentional relinquishment of a known right than this: a defendant cannot explicitly tell the judge and jury that he is not making a particular argument and then try to make that exact argument on appeal.
And the strategic rationale for not making the but-for cause argument at the dis
Waldrip cites United States v. Rea for the proрosition that we review waived arguments for a manifest miscarriage of justice under plain-error review.
■ Despite the confusion that this court and others have created by using waiver to mean forfeiture and forfeiture to mean waiver, the Supreme Court and most cases in our circuit have been clear: we do not review waived arguments on appeal. Olano,
Because Waldrip waived the but-for causation argument at the district court, he extinguished any error that might have occurred, and we do not consider the merits of his argument here.
B. Constitutional Arguments
Waldrip also argues on appeal that § 841(b)(1)(C) is unconstitutionally vague and that his 280-month sentence violates the Eighth Amendment’s proportionality requirement. Though these are different arguments than Waldrip made at the district cоurt, the government argues only that they are forfeited. So even if Waldrip waived these arguments, the government has waived any waiver defense that it had. Costello v. Grundon,
As to Waldrip’s vagueness challenge to § 841(b)(1)(C), a criminal statutе violates the Fifth Amendment’s Due Process Clause if it is “so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.”
Without question, the statute puts defendants on notice of what the punishment is for the knowing or intentional distribution of a controlled substance. Section 841(b)(1)(C) “puts drug dealers and users on clear notice that their sentences will be enhanced if people die from using the drugs thеy distribute.” United States v. Patterson,
Finally, Waldrip argues that his sentence violates the Eighth Amendment’s proportionality requirement. “Outside the contеxt of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare.” Rummel v. Estelle,
III. Conclusion
For those reasons, Waldrip’s conviction and sentence are AFFIRMED.
Notes
. The district court also sentenced Waldrip to 240 months for the three distribution,counts that he pled guilty to, to be served concurrently-
. Waldrip did not argue in his first brief that § 841(b)(1)(C) is so standardless that it invites