FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. Nancy Torresen, U.S. District Judge]
C. Andrews, with whom Robert C. Andrews Esquire P.C. was on
brief, for appellant.
M. Lipez, Assistant United States Attorney, with whom Halsey
B. Frank, United States Attorney, was on brief, for appellee.
Lynch, Selya, and Barron, Circuit Judges.
Lucas Heindenstrom pleaded guilty to a single count charging
him with drug distribution in violation of 21 U.S.C. §
841(a)(1). The district court, relying heavily on a finding
that a death resulted from the offense of conviction, imposed
an above-the-range term of immurement, justifying the
sentence both as an upward departure and an upward variance.
Concluding that the sentence is supportable when viewed as the an
upward variance, we affirm.
start by rehearsing the relevant facts and travel of the
case. When - as in this case - an appeal trails in the wake
of a guilty plea, we normally "draw the facts from the
change-of-plea colloquy, the uncontested portions of the
presentence investigation report (PSI Report), and the
transcript of the disposition hearing." United
States v. Narváez-Soto, 773 F.3d 282, 284 (1st
Cir. 2014). Here, however, there is a wrinkle: the district
court conducted an evidentiary hearing as part of the
disposition hearing. Thus, we draw some additional facts from
the court's supportable findings following the
evidentiary hearing. See United States v. Caramadre,
807 F.3d 359, 369 (1st Cir. 2015).
March 31, 2016, local police responded to an unattended death
in York, Maine. Officers determined that the decedent, Kyle
Gavin, had been dead for some time and found a substance that
contained fentanyl, an empty needle, a metal spoon, and other
drug paraphernalia near his body. The officers then spoke
with Gavin's roommates and learned that Gavin, an Army
veteran, had met a friend named "Lucas" on the
night he died and had given Lucas money.
officers contacted the federal Drug Enforcement
Administration (DEA). The DEA discovered a series of text
messages between Gavin and the appellant, sent on the night
that Gavin died. Toward the end of this exchange, Gavin
indicated that the drugs the appellant had sold him tasted
like "sugar." The appellant responded by assuring
Gavin that the drugs were "good" and suggesting
that the sweet taste came from fentanyl.
next day, the DEA used Gavin's cellphone to set up a
heroin purchase with the appellant and arrested him when he
arrived. After waiving his Miranda rights, see
Miranda v. Arizona, 384 U.S. 436, 444-45 (1966), the
appellant admitted that he had sold a gram of heroin to Gavin
on March 30.
investigation revealed that the substance trafficked by the
appellant contained fentanyl, and the text-message exchange
indicated that the appellant was aware of the presence of
fentanyl. The appellant admitted that he had procured heroin
for Gavin on two or three earlier occasions.
toxicology report indicated that there were 121 mg/dL of
ethanol, 120 mg/dL of methanol, and 5.7 ng/mL of fentanyl in
Gavin's system. These revelations were consistent with
the report of the medical examiner, who determined that the
cause of Gavin's death was "[a]cute
intoxication" from the "combined effects of
ethanol, methanol and fentanyl."
course, a federal grand jury sitting in the District of Maine
charged the appellant with distribution of a substance or
mixture containing fentanyl. After some preliminaries, not
relevant here, the appellant pleaded guilty to the single
count of the indictment. Following receipt of the PSI Report,
the district court conducted an evidentiary hearing as a
subset of the disposition hearing.
the evidentiary hearing, Jonathan L. Arden, M.D., testified
on the appellant's behalf. Dr. Arden discussed each of
the substances found in Gavin's system and their
contributions to Gavin's death. His opinion was that
ethanol, methanol, and fentanyl "all . . . played a
meaningful role" in Gavin's death, that is, all of
them were "contributory." But Dr. Arden could not
identify any one among the three toxins as "the sole
cause" of death. He explained that the levels of both
methanol and fentanyl ...