United States of America v. Jean C. Lawler

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15‐1496
U NITED STATES OF A MERICA ,
Plaintiff‐Appellee,
v.
J EAN C. LAWLER ,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 08‐CR‐197‐14‐JPS — J.P. Stadtmueller, Judge.
____________________
A RGUED D ECEMBER 16, 2015 — D ECIDED MARCH 16, 2016
____________________
Before MANION, KANNE , and WILLIAMS , Circuit Judges.
WILLIAMS, Circuit Judge. Jean Lawler pleaded guilty to
distributing heroin and conspiring to possess heroin with
the intent to distribute it. The district court found, by a pre‐
ponderance of the evidence, that Lawler sold the heroin that
killed one of the conspiracy’s customers. On that basis, in
determining Lawler’s Guidelines‐recommended sentence,
the court followed U.S.S.G. § 2D1.1(a)(2), which applies if
“the offense of conviction establishes that death … resulted

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2 No. 15‐1496
from the use of the [heroin].” That was erroneous. Lawler’s
“offense of conviction”—distributing heroin and conspiring
to possess heroin with the intent to distribute it—does not
“establish” that a death resulted. Therefore, we vacate Lawl‐
er’s sentence and remand.
I. BACKGROUND
The facts of this case were fully described in United States
v. Walker, 721 F.3d 828, 831–33 (7th Cir. 2013). Relevant here,
Lawler was charged along with thirty other defendants in a
single‐count indictment that described a large‐scale heroin‐
distribution conspiracy that led to the overdose deaths of
five people. “Lawler was a low‐level member of the conspir‐
acy” who “purchased relatively small quantities of heroin …
to resell to others and for personal use.” Id. at 831.
Lawler pleaded guilty to distributing heroin and conspir‐
ing to possess heroin with the intent to distribute it, in viola‐
tion of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and
846. The applicable statutory sentencing range is 10 years to
life. 21 U.S.C. § 841(b)(1)(A). The statutory minimum is in‐
creased to 20 years if death results from the use of the hero‐
in. Id. The Sentencing Guidelines also recommend a longer
sentence when death results, increasing the base offense lev‐
el if “the offense of conviction establishes” that death result‐
ed. U.S.S.G. § 2D1.1(a)(2).
Lawler’s plea agreement stated that the government
would argue that Lawler was subject to both the 20‐year
statutory minimum and the increased base offense level be‐
cause she sold the heroin that led to a particular death—that
of Jeffrey Topczewski. Lawler disagreed and reserved her
right to contest those issues. At sentencing, the district court
found, by a preponderance of the evidence, that Lawler sold
the heroin that killed Topczewski, so it applied the 20‐year

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No. 15‐1496 3
statutory minimum. We affirmed because the court’s find‐
ing—applying a preponderance‐of‐the‐evidence standard—
was supported by sufficient evidence. See Walker, 721 F.3d at
841–42. The Supreme Court vacated Lawler’s sentence in
light of Alleyne v. United States, 133 S. Ct. 2151 (2013), which
held that any fact that increases the statutory minimum sen‐
tence must be found beyond a reasonable doubt. Lawler v.
United States, 134 S. Ct. 2287 (2014) (mem.).
On remand, the government conceded that the 20‐year
statutory minimum did not apply because it had not been
proven beyond a reasonable doubt that Lawler sold the her‐
oin that killed Topczewski. But the government maintained
that Lawler’s base offense level should be 38, under U.S.S.G.
§ 2D1.1(a)(2). The district court agreed. That decision had a
significant consequence: Lawler’s Guidelines‐recommended
range soared from 15–21 months to 168–210 months. In part
due to her substantial assistance to the government, see 18
U.S.C. § 3553(e); U.S.S.G. § 5K1.1, Lawler was sentenced to
98 months in prison.
II. ANALYSIS
Lawler’s argument is simple: she was not convicted of
causing Topczewski’s death, so § 2D1.1(a)(2)—which by its
text applies only when the “offense of conviction establish‐
es” that death resulted—does not apply. We review the dis‐
trict court’s interpretation of the Guidelines de novo. United
States v. Woolsey, 535 F.3d 540, 549 (7th Cir. 2008).
The first part of Lawler’s argument—that she was not
convicted of causing Topczewski’s death—is certainly cor‐
rect. It is true that Lawler’s indictment referenced
Topczewski’s death. But that is also true of thirty other de‐
fendants who were charged in a single count describing a
large‐scale conspiracy that resulted in five deaths. We al‐

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4 No. 15‐1496
ready held that the combination of this indictment and a
plea of guilty (to distributing heroin and conspiring to pos‐
sess heroin with the intent to distribute it) did not prove that
any particular defendant was responsible for any particular
death. Walker, 721 F.3d at 836–38; see also id. at 841–42 (dis‐
cussing the evidence connecting Lawler to Topczewski’s
death, rather than drawing conclusions from the indictment
and guilty plea). The government conceded that it did not
prove beyond a reasonable doubt that Lawler caused
Topczewski’s death, and Lawler explicitly disputed that fact
in her plea agreement. 1 So the death is not part of her convic‐
tion. See Burrage v. United States, 134 S. Ct. 881, 887 (2014)
(“Because the ‘death results’ enhancement increased the
minimum and maximum sentences to which Burrage was
exposed, it is an element that must be submitted to the jury
and found beyond a reasonable doubt.”).
The next question is whether § 2D1.1(a)(2) applies when
death is not inherent in the conviction but the district court
finds, by a preponderance of the evidence, that death result‐
ed. Lawler says no, relying on the provision’s text. Im‐
portantly, numerous Guidelines provisions turn on the actu‐
1 This distinguishes Lawler from defendants who pleaded guilty to
drug crimes that resulted in death. See, e.g., United States v. Johnson, 706
F.3d 728, 729 (6th Cir. 2013) (“Johnson agreed to plead guilty to Count
One of the Indictment charging him with distribution of heroin resulting
in death.”); Vigneron v. United States, No. 03‐C‐3575, 2003 U.S. Dist. LEXIS
20852, at *8 (N.D. Ill. Nov. 19, 2003) (rejecting an argument similar to
Lawler’s because the court “did not determine by a preponderance of the
evidence that petitioner’s distribution of drugs resulted in a death—
petitioner pled to this fact”).

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No. 15‐1496 5
al consequences of the defendant’s “offense.” 2 In contrast,
§ 2D1.1(a)(2) looks only to what is “establishe[d]” by the de‐
fendant’s “offense of conviction.” 3
The Guidelines make clear that “offense of conviction”
and “offense” have different meanings. Specifically, § 1B1.1
n.1 defines “offense” to mean “offense of conviction” plus
“all relevant conduct.” And “relevant conduct” means “all
acts and omissions … that occurred during the commission
of the offense of conviction, in preparation for that offense,
or in the course of attempting to avoid detection or respon‐
sibility for that offense[.]” § 1B1.3(a). Together these provi‐
sions show that: (1) “offense of conviction” does not include
2 See, e.g., U.S.S.G. § 2A2.1 cmt. n.2 (where the “offense created a
substantial risk of death … to more than one person”); § 2B1.1(b)(15)
(where the “offense involved … the conscious or reckless risk of death”);
§ 2B5.3(b)(6) (same); § 2B3.2 cmt. n.7 (where the “offense involved the
threat of death … to numerous victims”); § 2B5.3 cmt. n.5(D) (where the
“offense resulted in death”); § 2K1.4 (a)(1)–(2) (where the “offense …
created a substantial risk of death”); § 2K1.4(c) (where “death resulted,
or the offense was intended to cause death”); § 2L1.1(b)(6) (where “the
offense involved intentionally or recklessly creating a substantial risk of
death”); § 2N1.1 cmt. n.1 (where the “offense posed a substantial risk of
death … to numerous victims”); § 2P1.3(a)(1) (where the “offense was
committed under circumstances creating a substantial risk of death”);
§ 2Q1.2(b)(2) (where the “offense resulted in a substantial likelihood of
death”); § 2Q1.3(b)(2) (same); § 2Q1.6(a)(3) (where the “offense involved
reckless disregard to the risk that another person would be placed in
danger of death”).
3 A 1989 amendment changed § 2D1.1(a)(2)’s base offense level from
“38, for an offense that results in death” to “38, if … the offense of conviction
establishes that death … resulted…” (emphasis added). Also, subsection
(a)(2)’s language is repeated in subsections (a)(1), (a)(3), and (a)(4). So the
differences between § 2D1.1(a)(2) and the numerous provisions of the
Guidelines listed in footnote 2 appear to be intentional, not inadvertent.

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6 No. 15‐1496
“relevant conduct”; and (2) “offense of conviction” is nar‐
rower than “offense.” See United States v. Rebmann, 321 F.3d
540, 543–44 (6th Cir. 2003) (reaching this conclusion after tex‐
tual analysis); United States v. Pressler, 256 F.3d 144, 157 n.7
(3d Cir. 2001) (same); see also United States v. Blackwell, 323
F.3d 1256, 1260 (10th Cir. 2003) (same, in the context of a dif‐
ferent Guideline provision). The district court appears to
have agreed, stating that the “offense of conviction includes
only what [Lawler] was convicted of, conspiracy to possess
with intent to distribute one kilogram or more of heroin”
and that “a reasonable person could say the offense of con‐
viction does not involve the death enhancement.”
The district court went on, however, to state that
§ 2D1.1(a)(2) “is an enhancement for relevant conduct and not
an element of the offense” (emphasis added). That was erro‐
neous. The text states that the “offense of conviction”—
which, as we just discussed, does not include “relevant con‐
duct”—must “establis[h]” that death occurred. That’s the
case only when death is an element of the crime that is ad‐
mitted by the defendant or proven beyond a reasonable
doubt. This conclusion, based on the text, is the one reached
by the circuit courts that have squarely addressed the issue.
See Rebmann, 321 F.3d at 543–44 (“[A] careful reading of the
express language of § 2D1.1(a), along with other provisions
and explanations contained in the Guidelines Manual, con‐
vinces us that the death‐resulting sentencing enhancement
set forth in that provision is not based on relevant offense
conduct to be determined by a preponderance of the evi‐
dence, but rather is tied expressly to the substantive offense
of conviction under the statute. As a result …, the death re‐
sulting enhancement applies only when the elemental facts
supporting the ‘offense of conviction’ establish beyond a

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No. 15‐1496 7
reasonable doubt that death resulted from the use of the con‐
trolled substance.”); Pressler, 256 F.3d at 157 n.7; United States
v. Greenough, 669 F.3d 567, 573–75 (5th Cir. 2012). 4
The government urges that even after Alleyne a district
court can consider “relevant conduct,” found by a prepon‐
derance of the evidence, when selecting a sentence within
the permissible statutory range. That’s true but irrelevant to
the issue at hand, which is simply the correct interpretation
of § 2D1.1(a)(2). Nothing we say today prevents a sentencing
court, when determining a defendant’s ultimate sentence,
from considering the fact that death resulted. See 18 U.S.C.
§ 3553(a)(1) (directing courts to consider “the nature and cir‐
cumstances of the offense”); 18 U.S.C. § 3553(a)(5) (directing
courts to consider the Sentencing Commission’s policy
statements); U.S.S.G. § 5K2.1 (policy statement advising that
“[i]f death resulted, the court may increase the sentence
above the authorized guideline range”).
4 The Greenough court wrote that some circuits had “sentenced indi‐
viduals in a manner that would imply” a different interpretation of
§ 2D1.1(a)(2). 669 F.3d at 574 (citing United States v. Shah, 453 F.3d 520
(D.C. Cir. 2006); United States v. Rodriguez, 279 F.3d 947 (11th Cir. 2002);
United States v. Deeks, 303 F. App’x 507 (9th Cir. 2008)). Even that meas‐
ured statement was too strong. Shah and Rodriguez involved defendants
who pleaded guilty to causing death. Shah, 453 F.3d at 522; Rodriguez, 279
F.3d at 951–52. (Shah unsuccessfully sought to withdraw his plea and
Rodriguez made the legal argument that § 2D1.1(a)(2) should not apply
because the death might have been avoided if bystanders had inter‐
vened.) And the unpublished Deeks opinion never discusses whether
§ 2D1.1(a)(2) requires death to be an element inherent in the crime, nor
did the defendant raise that argument—he merely challenged the factual
finding that death resulted. In short, these opinions are not on point and
we are not aware of a reasoned opinion from another circuit court that
conflicts with our holding.

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8 No. 15‐1496
Lawler’s textual arguments are strong and the govern‐
ment’s responses are not. We join the Third, Fifth, and Sixth
Circuits in holding that § 2D1.1(a)(2) applies only when a
resulting death (or serious bodily injury) was an element of
the crime of conviction, proven beyond a reasonable doubt
or admitted by the defendant. Not so in Lawler’s case.
III. CONCLUSION
We VACATE Lawler’s sentence and R EMAND for further
proceedings consistent with this opinion.

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