Submitted April 4, 2014
Appeal from United States District Court for the Southern District of Iowa - Des Moines.
For United States of America, Plaintiff - Appellee: Andrew H. Kahl, Kelly E. Mahoney, U.S. Attorney's Office, Des Moines, IA.
Marcus Andrew Burrage, Defendant - Appellant, Pro se, Atwater, CA.
For Marcus Andrew Burrage, Defendant - Appellant: Angela L. Campbell, Dickey & Campbell, Des Moines, IA.
Before BYE, BEAM, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
This case is on remand from the Supreme Court of the United States. Burrage v. United States , 134 S.Ct. 881, 187 L.Ed.2d 715 (2014). A jury convicted Marcus Andrew Burrage of distribution of heroin and distribution of heroin resulting in death, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C). The district court sentenced him to 20 years' imprisonment, consistent with § 841(b)(1)(C)'s prescribed minimum. Burrage appealed, challenging, among other things, the jury instructions for § 841(b)(1)(C). This court affirmed. United States v. Burrage , 687 F.3d 1015 (8th Cir. 2012). In light of the Supreme Court's ruling in Burrage, this court reverses the conviction on Count 2, for distribution of heroin resulting in death, and remands. This court's opinion of March 7 is vacated and this opinion substituted for it.
Burrage objected to the jury instructions for 21 U.S.C. § 841(b)(1)(C), a penalty provision increasing the minimum sentence for distribution of heroin " if death or serious injury results from the use of such substance." (emphasis added). The district court instructed the jury:
INSTRUCTION NO. 10
ELEMENTS OF THE OFFENSE--COUNT TWO--DISTRIBUTION OF HEROIN RESULTING IN DEATH
The crime of distributing heroin resulting in death, as charged in Count Two of the Indictment, has three essential elements, which are:
1. On or about April 14, 2010, the Defendant intentionally distributed heroin; and
2. At the time of the transfer, the Defendant knew that it ...