Submitted: January 12, 2018
from United States District Court for the Eastern District of
Missouri - St. Louis
COLLOTON, BENTON, and ERICKSON, Circuit Judges.
COLLOTON, Circuit Judge.
Bollinger distributed heroin to his friend Mitchell Stenger,
and Stenger died from acute heroin intoxication. After
Bollinger pleaded guilty to one count of distributing heroin,
the district court departed upward under the advisory
guidelines and sentenced him to 13 0 months'
imprisonment. Bollinger argues on appeal that the district
court abused its discretion by imposing such a long prison
term. We conclude that the sentence was within the range of
discretion available to the sentencing court, and we
early morning hours of December 4, 2014, Mitchell Stenger
died from acute heroin intoxication at his parents' home.
Based on information obtained from Stenger's telephone,
police confronted Bollinger, and he admitted to providing
Stenger with the heroin that killed him.
explained that Stenger sent him a text message the day before
asking for heroin. Bollinger initially declined, but then
changed his mind and obtained three capsules of heroin from
his supplier for Stenger. Bollinger arrived at the Stenger
residence around 10:30 p.m. on December 3.
knew that Stenger had been a heroin user, and Stenger had
informed Bollinger that Stenger was receiving monthly
injections of Vivitrol to assist with his addiction. Vivitrol
is a long-acting drug designed to block opiate absorption by
the brain and to prevent heroin users from feeling the
effects of heroin. Bollinger also knew that heroin users
taking Vivitrol are susceptible to overdose because they have
an incentive to consume more heroin than usual to overcome
the Vivitrol blockade. Bollinger explained that Stenger
himself had increased his heroin usage from one or two
capsules to as many as four or five when taking Vivitrol.
December 3, because Stenger's asthma was "acting
up," Stenger did not walk down the driveway to meet
Bollinger. Instead, Bollinger met Stenger in the garage to
give him the heroin. Before parting ways, Bollinger told
Stenger to "be careful." Stenger used heroin some
time before 4:00 a.m. on December 4. He was pronounced dead
at 4:47 a.m.
pleaded guilty to distribution of heroin, in violation of 21
U.S.C. § 841(a)(1). Based on his offense level and
criminal history category under the sentencing guidelines,
Bollinger's advisory sentencing range was six to twelve
months' imprisonment. The government, however, moved for
an upward departure under USSG § 5K2.1 on the ground
that Bollinger's conduct caused Stenger's death.
Bollinger conceded that an upward departure was warranted and
requested a prison term between 60 and 65 months.
district court held a lengthy hearing at which it considered
Bollinger's admissions and testimony from a physician and
medical toxicologist. This expert, Dr. Hail, described the
effects of asthma and the interaction between Vivitrol and
heroin. The district court found that Bollinger's conduct
caused Stenger's death, that the advisory guideline range
did not adequately reflect the seriousness of his offense,
and that an upward departure under USSG § 5K2.1 was
warranted. In determining the extent of the departure, the
court explained that Bollinger and Stenger were not
strangers, that Bollinger knew Stenger was taking Vivitrol,
and that Bollinger knew Stenger "was physically
vulnerable to the possibility of an overdose because of the
Vivitrol and possibly because of his asthmatic
condition." The court imposed a sentence of 130 months.
§ 5K2.1 permits a sentencing court to depart from the
guideline range if the defendant's conduct resulted in
death. In determining the extent of a departure a court
should consider: (1) "the defendant's state of
mind," (2) "the degree of planning or
preparation," (3) "whether multiple deaths
resulted," (4) "the means by which life was
taken," (5) "the dangerousness of the
defendant's conduct," (6) "the extent to which
death or serious bodily injury was intended or knowingly
risked," and (7) "the extent to which the offense
level for ...