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United States v. Bollinger

United States Court of Appeals, Eighth Circuit

July 2, 2018

United States of America, Plaintiff- Appellee,
v.
David Bollinger, Defendant-Appellant.

          Submitted: January 12, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before COLLOTON, BENTON, and ERICKSON, Circuit Judges.

          COLLOTON, Circuit Judge.

         David 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[1] 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 therefore affirm.

         I.

         In the 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.

         Bollinger 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.

         Bollinger 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.

         On 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.

         Bollinger 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.

         The 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.

         II.

         USSG § 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 ...


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