jamie tougher this is the exact type of situation that congress envisioned when it acted the enhanced penalty provision of twenty one dollars u s c forty one dollars b one c which applies to a drug dealer when the use of his drugs results in death at geoffrey's trial after hearing extensively from the parties the district court properly instructed the jury that this death results in hand smith is m the after the trial after the jury's verdict the district court improperly read a proximate cause requirement into that death result and handsome and and that proximate cause requirement was legally incorrect and therefore an abuse hit and abuse of the district court's discretion for three reasons st the plain language of that statute does not require st the ability of death nd congress intentionally tied the enhanced penalty to inherently risky conduct and rd circuit's agree that proximate cause is not required your honour's when we look at the plain language of that statute it applies when death results from the use of the substance this results from language when given its ordinary meaning means but for causation and does not require the impute of an additional proximate cause requirement this is informed by looking at the legislative intent the statutory purpose and the context in which congress enacted the controlled substances act itself st your honour's this was an acted as part of the anti drug abuse act of bodily harm or death to an individual there will be an enhanced penalty for the case of united states we're marking contro here it doesn't apply your honor because that is it in a different statutory scheme with different statutory language and different statutory perp yes and construct against which congress with legislating and starting with the language of martinez the health care fraud statute requires that results in death so that additional impute the violation is the distribution and the violation is over at that point is that your distinction yes your honor the violation is criminal under yes under the statute itself yes your honor the enhanced penalty does not apply until someone ingest that substance until someone uses it and it's the use that triggers the enhanced penalty and that's consistent with what congress intended in the controlled substances act congress found that the use of controlled substances poses an inherent danger to the american public and they legislated precisely to schedule controlled substances because of the high risk of abuse that they pose and because they generally lack a widely accepted medical usage so consistent with this finding where congress found that the use of a controlled substance inherently carries a danger of death or bodily harm it found to tie the enhanced penalty to that use and obviously the the defendant here and now the judge wants the foreseeability requirement but what about if the drug is distributed let's say either it's contaminated with something worse like heroin is contaminated with fenton all or it's contaminated with something that wouldn't hurt most people like shrimp and somebody has anaphylactic shock when they take the drug which is an illegal drug but it wouldn't really have been foreseeable to the distributor would they still be liable in either of those circumstances where your honor before we would even get to the enhanced penalty provision situation where as i say it's not known or wouldn't be known that it would be the what actually caused the death was something different than the drug that the substance may result in serious bodily harm or death and that's what we're looking at here we're looking at an objective standard for c ability so if there's a particular instance in which one drug distributor one individual claims that they didn't intend  particular result or couldn't precisely forsee a particular result that is not the proper inquiry what we're looking at is whether or not drug use and drug trafficking itself is inherently carries a f and the answer to that to go to hypotheticals i threw out one of them you have a dangerous drug that is contaminated with an even more dangerous drug that was kind of easier in my nd hypothetical which was a dangerous drug which dangerous but what causes the death is something that that is not illegal or not normally dangerous it's an egg shell scold the seed and would you still say that or would there be a way to parse it is not but for well i think that that and that's where the inquiry stops but because but once we get to that point once we have the but for causation congress is intended that this is already that it's already forseeable that the use of drugs is inherently dangerous and there's no need to impose an additional proximate cause requirement your honor i would also point out that the parallel penalty enhancement in age forty one the one which just which contains the exact same language but applies to a different schedule of drugs was an act in two thousand and eight and by that time five sister circuit had already addressed the language of b one c as not binding or requiring proximate caus so congress presuming to legislate knowing the background of that law could have imposed a proximate cause requirement into that provision it could have changed it forty one dollars b one feet but it did not it left the language as results from  drug distributors and it is clear which of two dealers provide it subsumes i mean let's say she might already have or she might already have some and it's unclear the traffic so here and less the government can prove that in the st instance beyond a reasonable doubt you don't even get to applying the enhanced that's the that's the classic you know two hunters who shooter to burden one of them kill somebody summers be tried so they were just good they should be acquitted that's you know depending on the evidence but that would be a good that would be a relatively good defense you can't prove beyond a reasonable doubt that it was my evidence that it was anyone else where there were no other drugs or any other co morbidities that this individual possessed they could have led to her death this is the situation that congress intended this is i take it there are about the last them whether there's any of these confound hypotheticals but as i understand it they're i mean obviously they what they want the instruction no matter what but they are equitable argument as i understand it and help me if i'm wrong is that  the defendant we have thought he was just selling to another distributor who would never use the drugs and therefore it's kind of unfair to tax them is that is that the way the argument would work you understand that as being there are human well your honor that we would disagree with the assessment of the facts the child bearing out that the deceased was a distributor but other circuit courts have grappled with even more intangible hypotheticals in finding that process proximate c is not required and i would point your honour's to the th circuit decision in mackintosh in mackintosh that individual distributed drugs to other individuals who then distributed drugs to someone's fourteen year old daughter and in that case the defendant even knew that young lady and said please don't give her drugs and the circuit said even though it wasn't directly distributed to the dissident even though that defendant didn't even want his drugs to go to that to see to it that congress intended for that type of situation to apply to congress simply said that and so what i want to ask you so what you have a statute that allows for this enhanced i'm going to rd parties use cause there be even more important no your honor because it is always forseeable to a drug dealer that someone is going to use the drugs that he or she sells and that was the basis of congress inquiry somebody is going to use it and even give them to a rd person yes your honor yes that the drug by putting these drugs out on the street putting them into the market that those drugs are going to be cannot how far does that mean the example you gave sounded like they would be foreseeability anyway because he knew that it might happen because he was warning against it but how far does that chain of distribution go that is if you're the king pin in cleveland and by the time the drugs kill somebody in  eastern kentucky it's th or th level down are there cases that hold that is there a chain of distribution ability well i think your honor that that again is soon in having to prove that it was those drugs distributed by the defendant that resulted in death so there will be problems of proof presumably because as your honor put it on the th or th or sixteen of distribution that proof becomes even more or less and so i think those trafficker puts drugs in the market there is an objective presumption that bodily harm or death can result and again we're talking about an objective standard i forsee ability whether the good morning my name is clear cahoon and on behalf of the federal public defender i represent an enhanced penalty should always involve enhanced causation and in this case judge oliver identified that by granting jeffries a new trial one proximate cause instruction is not given i'd like to start with the sort of the broadest and move to the most this issue why are all of these circuits wrong and you believe that your position is correct thank you just for three reasons really the st is that if we look at the body of circuits who have already decided this issue the vast majority of them are decisions that are that predate both burrage and paralegal that provide the courts the lot of direction about the relationship between but for causation and proximate cause ation so when we take those cases away we're really only left with two cases we're left with alvarado and harden and then burkholder which deals with a similar statute under age forty one now hardin is distinct because in that case the defendant waived to the issue of the proximate cause instruction so that impacted the court's analysis resulting in a much  less robust discussion of proximate cause in the court's opinion similarly in alvarado which is out of the th circuit there was a plain error standard of review so again we have a reduced level of review that the court is imposing what this court should be most guided by is its own decision making so st i would point this court to united states for says martinez granted it is a different statutory scheme however it does have very similar language  martina's the courts dealt with a health care fraud statute that had a similar death and handsome in the language being result in death and what the martinez court determined was back there had to be w health care fraud itself and i believe the scenario that martinez discussed they came up most frequently were physicians who were prescribing for example pain killers in a way that was inappropriate and fraudulent and led to the death of patients so although not identical it has some similar characteristics to a drug trafficker then giving a user illicit substances but point being that the martinez court determined that that results in death language because and i think this is part of what the court is concerned about and some of it's hypothetical and the supreme court has consistently directed us to employ both the rule of lenity in favor of the defendant and the traditional principles of criminal law which would require a proximate cause instruction now one of the things that the government pointed out in their briefing that i the victim's use being a triggering offense however i would note for the court that the decision that this court relied on in martinez that sort of serves as the basis of its reasoning is an unreported decision called why gans and why gant was a case that dealt  interference of housing rights based on race why gay and also included passive voice statutory language that deaf and has been with bodily injury resulted passive voice just like our drug trafficking statute and why can't this court determine that that language did require proximate cause ation again for all the principles of been discussed at great length in burrage imperiling because we have to avoid situations where the offense conduct is too attenuated from the actual result and i would like to answer this court's hypotheticals with another hypothetical it's a common one that judge oliver talks about and that's also discussed in burrage which is the drug trafficker who sells drugs to a drug user the drug user then uses those drugs and gets into their car the drug user is hit by a speeding motorists and kills now the drug user probably could have avoided that's been murder since they have not been using the illegal drugs but the relationship between that car accident and the drug dealer has become more attenuated than simply a drug overdose situation so the court has to consider the entire spectrum of possible outcomes when there are individuals trafficking drugs that could lead to death overdose is just one of those potential outcomes and by drawing such a broad rule by saying there is no proximate cause ation required simply because the express language of the statute doesn't require it leads to a lot of these hypotheticals where even though we're getting farther and farther down the causal chain there's still this sort of strict liability and that's simply not congress's intense part of the reason for that is because we know that mr trafficking in drugs under a free one which is a very serious offense that carries a statutory maximum of twenty years of incarceration so congress didn't need the death in hands meant to be applied in every drug trafficking case where jeff resulted to ensure the drug trafficking was punished rather the strong statutory scheme of a forty one itself does that already so all congress intended was to make sure that when there are situations where that causal chain can be linked up between drug trafficking an death that that enhancement can be proven and create a heightened penalty not in every case and in this case i was asking if in effect you want the instruction in every case no matter what the facts are but are there any facts that take this out of what i would call the you know the heartland drug distribution should be used to be be used as the no your honor i don't believe there is but i such a broad proximate cause rule for me to draw such a broad broad rule without proximate cause really is going to lead to these disparate unreasonable results i think some of what can guide the court here is are those common law criminal law principles that have been employed by both circuits in the supreme court over and over again one of those being that the smaller the penalties and the less serious the conviction the less need for a causal chain the supreme court explains that in morris that that we really should only be reading in should not be reading in a proximate cause instruction where it's not a very serious not uncommon for the for congress to legislate statues the don't expressly include a proximate cause component but to still require proximate cause and the court gives a number of examples in parallel so there's lots of support inside the as well as all of those sort of supporting factors the model penal code traditional criminal law principles and how we think of proximate cause generally right this desire to avoid your fortuity is the need for a causal link i would also point out that we were discussing earlier this idea of passive versus active language and i don't know that i expressly made the point but there are several other circuits that would agree with this reasoning in a different context so in the briefing appellee had pointed out though we have death in handsome and with passive language which under the government's construction would require just but for causation those circuits determined no we need to have proximate cause ation because of the severity of death and interstate domestic violence cyberstalking statute so definitively a criminal law statute one can only presume having the same sorts of congressional intent behind it the desire to protect victims of domestic violence just as a forty one  desire to protect those who might be exposed to illegal drugs and even in that situation where we have very sympathetic victims is certainly congress wants to protect the rd circuit says we have to make sure because of the severity of this apparently and in particular because berge really addresses about four causation but purely in particular goes to great lengths to explore the issue approximate causation and really flesh out its relationship to crimes and it's  different situation because we're dealing with the restitution for sex offenders but part of what makes purposefully and so powerful is that it's a real analysis of what kind of relationship do we want to have what kind of relationship does the constitution require between crimes and proximate cause and so the constitution required you have a constitutional argument here i've sorry i really should have said should the statute require to get a little excited ok but certainly apparently it identifies and highlights the included i would argue to this court that that is not controlling for two reasons one of course this court is already aware they're not bound by the pattern instructions that's committee of lawyers and judges who put that together doesn't have binding authority on this court only has arguably persuasive value however when you look at that instruction it's based on this course previous decision and bookman that's the only legal authority from which that instruction comes volkmann doesn't discuss proximate cause it's not an analysis of whether or not it forty one  proximate cause and so vocal and really doesn't give us any insight pattern instruction any different significantly from the one that was given i thought they were given a pattern jury instruction that's correct your honor and the new instruction is  consistent with that form or instruction however i wanted simply to explain to this court that even though that new instruction doesn't include the proximate cause component we would argue that instruction was is wrongful and that the need for proximate cause is consistent honour's this is a case within the heartland of drug distribution for which congress intended and enhanced penalty to apply mr jeffries reliance on berridge is not availing in this instance there are three circuit courts that have said the burj does not suggestion the language let alone any type of requirement so in those three circuits have found that burrage does not control also both mr jeffries and the district court confuse the difference between a strict liability crime and this part element this is not a strict liability crime for mr jeffries to be convicted he must have knowingly and intentionally distributed the controlled substance that's mens rea and the th circuit has found in other courts and found that a type of strict liability for the penalty is appropriate given congress's intent in this instance your honour's i would also note that the nd and rd circuit decisions upon which mr jeffries relies as well as  widened decision that the martinez court looked at it's not the passive language that's the driver here your honour's but all of those statutes in the fair housing in the civil rights discrimination in context they all have language that it's the violation resulting in death it's that act resulting in death and that is structurally different from the language that we have at issue in a forty one dollars b one c as well as the scope of those statutes where a violation could result from many types of conduct much of which would not carry a forseeable result of death whereas here the enhancement is specifically linked to conduct that does i would also point out that the judge is not entitled to discretion in this particular instance because he is with legally and correct on the law and this is borne out i think by the discussion fourteen to be jury instruction that instruction didn't exist at the time of the trial it is substantially similar to the instruction that was given to the jury so this court were to affirm the judge's decision and remain for a new trial fourteen dollars would exist essentially in a situation in which he would be forced to give the same requirement so his disagreement on the law is not something that can be entitled to discretion in this particular situation by the text and by design congress intended for eight hundred and forty one b one c to be satisfied with or causation only we asked this court to reverse and remain for sentencing thank you thank you thank you for your arguments the matter is submitted and will give you an