IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11224

UNITED STATES OF AMERICA, 

 Plaintiff - Appellee

v.

MICHAEL DEON THOMPSON,

also known as “ICE MIKE”

 Defendant - Appellant

Appeal from the United States District Court for the

Northern District of Texas

Before HIGGINBOTHAM, DENNIS, and HO, Circuit Judges.

JAMES L. DENNIS, Circuit Judge:

Michael Deon Thompson was charged with and convicted by a jury of two 

counts: (1) distribution and possession with intent to distribute heroin 

resulting in serious bodily injury to April Myers and (2) conspiracy to distribute 

and possess with intent to distribute heroin. Because of Thompson’s prior 

felony drug convictions, and pursuant to 21 U.S.C. § 841(b)(1)(C), he was 

sentenced to a mandatory term of life imprisonment. Thompson appeals his 

conviction and the denial of his motion for a new trial. For the following

reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

FILED

December 18, 2019

Lyle W. Cayce

Clerk

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I. Background

Michael Thompson was a drug dealer who, from October 2016 to October 

2017, sold heroin to Bobby Mason multiple times per week. Mason would at 

times act as a middleman, connecting customers with Thompson in exchange 

for extra heroin. On the morning of October 6, 2017, Mason met fellow heroin 

user April Myers at her house; the two planned on picking up some heroin to 

use and some to sell. Myers had started her day by taking out cash to purchase 

the heroin. She also used some of the funds to buy Xanax and hypodermic 

needles. When she arrived home, she gave her money to Mason who began 

calling drug dealers to arrange a deal. Mason called Thompson and another 

supplier, John Carrion, also known as Rico. Myers had never previously met 

either dealer. 

At trial, Mason testified that Thompson arrived first at Myers’s 

residence, pulling up to the front of the home in his Ford SUV. Mason went 

outside, got into Thompson’s vehicle, and bought at least two grams of heroin 

with Myers’s money. Although Myers could not see Thompson, she watched 

the transaction from her porch to make sure that Mason did not steal any of 

the heroin. 

After completing the transaction, Mason went back inside Myers’s home, 

informed her that he had purchased heroin from Thompson, and proceeded to 

use a spoon to prepare the heroin for use. At this point, Carrion called Myers’s 

phone, and Mason went outside and purchased around one gram of heroin. 

Mason returned to the residence and drew the heroin Thompson supplied from 

the spoon into a syringe. Mason then injected himself with the heroin. Mason 

testified that Myers next injected herself with the heroin, while Myers testified

that Mason injected her. Mason was the only witness with firsthand

knowledge that Thompson was the source of the heroin that Myers used that 

morning. 

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Immediately after the injection, Myers “knew [she] was in trouble.” She 

“felt out of control” and afraid. Myers headed to her bathroom to throw up, but 

she collapsed on the bathroom floor, losing consciousness. 

Mason called 911 from Myers’s cell phone and reported the overdose. He 

then gathered the remaining heroin and fled from the house. Paramedics later 

arrived and administered Narcan, a medication that counteracts the effects of 

a heroin overdose. One paramedic testified that it required about twenty 

minutes to resuscitate Myers after administering the Narcan. 

The paramedics took Myers to a hospital where Dr. Jonathan Dizon, an 

emergency room physician, examined her. At trial, Dr. Dizon testified that, 

after reviewing the paramedic’s report, he believed that Myers “suffered 

serious bodily injury . . . from the ingestion of heroin” and that her ingestion 

of heroin “create[d] a substantial risk of death.” Dr. Dizon also stated that a 

toxicology report based on a sample of Myers’s urine found heroin, 

methamphetamine, cocaine, opiates, and benzodiazepine. He testified that, in 

his expert opinion, but for Myers’s use of heroin, she would not have sustained 

serious bodily injury. 

At trial, the jury was instructed that “[t]o prove that serious bodily injury 

resulted to April Myers from the use of heroin, the government must prove 

beyond a reasonable doubt that but for [Myers]’s use of heroin, [Myers] would 

not have sustained serious bodily injury.” During closing argument, 

Thompson’s counsel argued that Mason is a liar and asked the jury not to 

believe him. After deliberating, the jury found Thompson guilty of both counts. 

With respect to Count One, the jury specially found “beyond a reasonable 

doubt, that [April Myers] suffered serious bodily injury as a result of ingesting 

heroin distributed by Michael Deon Thompson.” 

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Following the verdict, Thompson moved for judgment of acquittal under 

Federal Rule of Criminal Procedure 29 and for a new trial under Rule 33. The 

district court denied both motions.

Due to Thompson’s prior felony convictions, his conviction under Count 

One for distribution and possession with intent to distribute heroin resulting 

in serious bodily injury mandated a sentence of life imprisonment. 21 U.S.C. 

§ 841(b)(1)(C);1 Thompson was also sentenced to 41 months’ imprisonment on 

the related conspiracy charge. He timely appealed.

II. Standard of Review

When a challenge to the sufficiency of the evidence is preserved by 

moving for acquittal under Federal Rule of Criminal Procedure 29, the 

challenge is reviewed de novo but with a high degree of deference to the verdict. 

See United States v. Scott, 892 F.3d 791, 796 (5th Cir. 2018). All evidence is 

viewed “in the light most favorable to the Government, with all reasonable 

inferences and credibility choices to be made in support of the jury’s verdict.” 

Id. (internal quotation marks omitted). In addition, evidence on an essential 

element of an offense is sufficient “if any rational trier of fact could have found” 

that element beyond a reasonable doubt. Id. (internal quotation marks and 

citation omitted).

“[T]he decision to grant or deny a motion for new trial based on the 

weight of the evidence is within the sound discretion of the trial court. An 

appellate court may reverse only if it finds the decision to be a clear abuse of 

 

1 The statute provides in pertinent part: 

If any person commits such a [controlled substances] violation after a prior 

conviction for a felony drug offense has become final, such person shall be 

sentenced to a term of imprisonment of not more than 30 years and if death or 

serious bodily injury results from the use of such substance shall be sentenced 

to life imprisonment . . . .

21 U.S.C. § 841(b)(1)(C) (emphasis added).

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discretion.” United States v. Robertson, 110 F.3d 1113, 1118 (5th Cir. 1997) 

(internal quotation marks omitted).

III. Discussion

Thompson contends on appeal that (1) the evidence was insufficient to 

find that the heroin he supplied was the but-for cause of Myers’s serious bodily 

injury, (2) the Government was required to prove that his distribution was the 

legal or proximate cause of Myers’s injury under § 841(b)(1)(C), and (3) the 

district court abused its discretion in denying his motion for a new trial.

A. Sufficiency of the Evidence on But-For Causation

“[A]t least where use of the drug distributed by the defendant is not an 

independently sufficient cause of the victim’s death or serious bodily injury, a 

defendant cannot be liable under the penalty enhancement provision of 21 

U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury.” 

Burrage v. United States, 571 U.S. 204, 218-19 (2014). “But-for causation 

requires the Government to show merely that the harm would not have 

occurred in the absence of—that is, but for—the defendant’s conduct.” United 

States v. Salinas, 918 F.3d 463, 466 (5th Cir. 2019) (internal quotation marks 

and citation omitted). The standard is not difficult to meet because it “asks 

simply whether the outcome would have occurred in the absence of the action.” 

Id. Thus, there may be many but-for causes of any given event. Id. 

The Supreme Court in Burrage held that the defendant’s distribution of 

heroin to a person who died of a drug overdose was not a but-for cause of the 

death because the victim had ingested so many other drugs that no expert 

could testify that, but for the heroin, the victim would have lived. 571 U.S. at 

207-08. On the other hand, a drug distributed by a defendant may be a butfor or “actual” cause of death or injury if other drugs in a victim’s system would 

not have caused the victim’s harm without the addition of the defendant’s drug. 

See id. at 210, 217-18. 

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We conclude sufficient evidence existed to support the jury’s finding of 

but-for causation here. Dr. Dizon, the emergency room physician who treated 

Myers, testified explicitly that he believed that but-for Myers’s use of heroin, 

she would not have sustained serious bodily injury.2 Also, the testimony of 

Mason, Myers, and the paramedic establish a clear timeline that points to 

heroin as a but-for cause of Myers’s injury. Myers collapsed nearly 

immediately after she injected the heroin and then regained consciousness 

shortly after being administered Narcan. This all suggests that without 

ingesting the heroin Thompson supplied, Myers would not have suffered 

serious bodily injury. 

Thompson argues that the evidence was insufficient to establish but-for 

causation because he distributed heroin to Mason, rather than Myers, and 

because Mason ultimately chose the heroin injected into Myers. However, 

there is no requirement that Thompson directly distribute the drugs to the enduser or that Thompson be the final link in the causal chain. See, e.g., United 

States v. Soler, 275 F.3d 146, 149, 152-53 (1st Cir. 2002) (finding but-for 

causation standard met even though defendant-appellant had no direct 

dealings with the victim); United States v. McIntosh, 236 F.3d 968, 973 (8th 

Cir. 2001), abrogated on other grounds by Burrage, 571 U.S. 204 (“The 

enhancement inquiry [under § 841] is not altered merely because . . . [the 

victim] obtained the drug directly from someone other than McIntosh.”). 

Because there may be “many but-for causes,” we likewise find no merit in

Thompson’s argument that the heroin had to be the “only” cause of Myers’s 

injuries. See Salinas, 918 F.3d at 466 (internal quotation marks omitted). 

 

2 Thompson asserts that Dr. Dizon’s trial testimony was improper. However, 

Thompson failed to object to Dr. Dizon’s expert testimony at trial, and we discern no plain 

error in the district court’s allowing that testimony into evidence. See United States v. Cotton, 

535 U.S. 625, 631 (2002). 

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Therefore, we cannot say that no rational juror could find the but-for causation 

standard met based on the testimony and evidence adduced at trial. Scott, 892 

F.3d at 897. 

B. Causation Standard Under Count One

On appeal, Thompson argues that, in addition to but-for causation, the 

charge under Count One for distributing heroin which resulted in serious 

bodily injury required the Government to prove that his conduct proximately 

caused Myers’s injury.3 See 21 U.S.C. § 841(b)(1)(C). At trial, the jury was 

instructed that they had to find but-for causation to convict Thompson on 

Count One. No mention was made of proximate cause, and Thompson’s counsel 

did not object. 

Because of trial counsel’s failure to object, we apply plain-error review. 

See Cotton, 535 U.S. at 631. Under this standard, we can only notice “(1) [an]

error, (2) that is plain, and (3) that affect[s] substantial rights . . . [when] (4)

the error seriously affect[s] the fairness, integrity, or public reputation of 

judicial proceedings.” Id. (internal quotation marks and citations omitted) 

(second and last alterations in original). Even assuming arguendo that the 

district court erred, Thompson cannot show—and does not argue—that the 

error was plain. “[E]very federal court of appeals to address th[e] issue” of 

whether § 841(b) demands proof of proximate causation has determined that 

the provision entails no such requirement. United States v. Harden, 893 F.3d 

434, 447-48 (7th Cir. 2018) (collecting cases), cert. denied, 139 S. Ct. 394, 202 

(2018); see also United States v. Burkholder, 816 F.3d 607, 618 (10th Cir. 2016); 

 

3 Thompson further contends that there was insufficient evidence to prove that the 

proximate cause standard was met. Of course, the jury was never instructed to find whether 

Thompson’s drug distribution proximately caused Myers’s injury, and thus there is no jury 

finding to challenge. Moreover, we need not reach this issue because we determine that 

Thompson cannot satisfy the predicate showing of plain error in the failure to instruct the 

jury on a requirement of proximate cause.

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United States v. Webb, 655 F.3d 1238, 1250 (11th Cir. 2011); United States v. 

De La Cruz, 514 F.3d 121, 137 (1st Cir. 2008); United States v. Houston, 406

F.3d 1121, 1124-25 (9th Cir. 2005); United States v. Robinson, 167 F.3d 824, 

832 (3d Cir. 1999); United States v. Patterson, 38 F.3d 139, 145 (4th Cir. 1994). 

Although we have not squarely answered this question, in United States v. 

Carbajal, we suggested in dicta that § 841(b) “does not impose any sort of 

explicit causation requirement” and held that U.S.S.G. § 2D1.1, the Sentencing 

Guidelines provision analogous to § 841(b), “is a strict liability provision that 

applies without regard for common law principles of proximate cause or 

reasonable foreseeability.” 290 F.3d 277, 284 (5th Cir. 2002); see also U.S.

SENTENCING GUIDELINES MANUAL § 2D1.1 (stating that the provision applies 

if “death or seriously bodily injury resulted from the use of the substance”).

Thompson claims that Burrage requires proximate cause be proven 

under the “death or serious bodily injury results” language in § 841(b). He 

misreads Burrage, and his own citations to the case evidence that the Court

merely observed that, in general, the criminal law imposes a requirement that 

the defendant’s conduct be the proximate cause of the result. See Burrage, 571 

U.S. at 210. Burrage does not—nor does it purport to—read a proximate cause 

requirement into § 841(b). See id. at 218-19 (“We hold that, at least where use 

of the drug distributed by the defendant is not an independently sufficient 

cause of the victim’s death or serious bodily injury, a defendant cannot be liable 

under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless 

such use is a but-for cause of the death or injury.” (emphasis added)). Indeed,

we have cited Burrage in support of the conclusion that “resulted from” 

language in a guidelines provision “imposes a requirement [only] of actual or 

but-for causation.” United States v. Ramos-Delgado, 763 F.3d 398, 401 (5th 

Cir. 2014). Given the overwhelming weight of authority, any asserted error by 

the district court in failing to instruct the jury that proximate cause is an 

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element of the offense under Count One certainly is not “clear” or “obvious,”

and Thompson, therefore, cannot meet the exacting standards of plain-error 

review. See United States v. Olano, 507 U.S. 725, 734 (1993) (“‘Plain’ is 

synonymous with ‘clear’ or, equivalently, ‘obvious.’”). 

C. Thompson’s Motion for a New Trial

Thompson next challenges the denial of his motion for a new trial, 

contending that the Government’s key witness, Mason, was unreliable and 

incredible. A district court may grant a motion for a new trial “if the interest 

of justice so requires.” FED. R. CRIM. P. 33(a). We may reverse the district 

court’s decision to deny Thompson’s motion for a new trial only if we find it “to 

be a clear abuse of discretion.” United States v. Robertson, 110 F.3d 1113, 1118 

(5th Cir. 1997) (internal quotation marks and citation omitted). “Testimony is 

incredible as a matter of law only if it relates to facts that the witness could 

not possibly have observed or to events which could not have occurred under 

the laws of nature.” Id. at 797 (internal quotation marks and citation omitted). 

“Where the defense has had an opportunity to question witnesses as to their 

biases, and the jury has concluded that the witnesses are credible, the trial 

court has broad discretion” in ruling on a motion for a new trial. United States 

v. Dula, 989 F.2d 772, 778 (5th Cir. 1993). Here, the defense vigorously crossexamined Mason, questioning his credibility and exposing his incentives to 

testify for the Government. Moreover, it was solely the jury’s province “to 

weigh conflicting evidence and evaluate the credibility of witnesses.” Id. 

(internal quotation marks omitted) (quoting United States v. Ivey, 949 F.2d 

759, 767 (5th Cir. 1991)). Thompson essentially asks us to reevaluate Mason’s 

credibility—a request we decline. See id. at 778; see also United States v. 

Arnold, 416 F.3d 349, 361 (5th Cir. 2005) (declining to review the district 

court’s assessment of the credibility of witnesses).

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IV. Conclusion

For these reasons, the judgment of the district court is AFFIRMED.

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