1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-12-1999

USA v. Robinson

Precedential or Non-Precedential:

Docket 98-3304

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Recommended Citation

"USA v. Robinson" (1999). 1999 Decisions. Paper 39.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/39
Filed February 12, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-3304 

UNITED STATES OF AMERICA 

v. 

MELVIN ROBINSON, a/k/a Sweets 

Melvin Robinson, 

 Appellant 

On Appeal from the United States District Court 

for the Western District of Pennsylvania 

(D.C. Crim. No. 97-64) 

District Judge: Hon. Alan N. Bloch 

Argued January 12, 1999 

BEFORE: GREENBERG and SCIRICA, Circuit Judges, 

and CARMAN,* Chief Judge, Court of International Trade 

(Filed: February 12, 1999) 

 Thomas Livingston (argued) 

 The Colonial Building 

 205 Ross Street 

 Pittsburgh, PA 15219 

 Attorney for Appellant 

_________________________________________________________________ 

*Honorable Gregory Carman, Chief Judge of the United States Court of 

International Trade, sitting by designation. 
 Harry Litman 

 United States Attorney 

 Bonnie R. Schlueter (argued) 

 Assistant United States Attorney 

 633 United States Post Office & 

 Courthouse 

 Pittsburgh, PA 15219 

 Attorneys for Appellees 

OPINION OF THE COURT 

GREENBERG, Circuit Judge. 

I. INTRODUCTION 

On July 24, 1997, a jury in the Western District of

Pennsylvania found the defendant, Melvin Robinson, guilty 

of conspiring to distribute heroin in violation of 21 U.S.C. 

S 846 contrary to 21 U.S.C. SS 841(a)(1) and 841(b)(1)(C). 

After conducting a hearing, the district court sentenced 

Robinson to the mandatory 20-year minimum term 

required by 21 U.S.C. S 841(b)(1)(C) ("section 841(b)(1)(C)") 

when "death or serious bodily injury results from the use 

of" the substance the defendant was convicted of 

distributing. 

On appeal, Robinson does not challenge the jury'sfinding 

of guilt. Thus, he does not argue that the evidence did not 

support a finding that he conspired to distribute heroin. 

Instead, he argues that venue was improper, and he 

disputes the district court's imposition of the 20-year 

mandatory minimum sentence. Robinson contends in 

particular that the Western District of Pennsylvania was an 

improper venue because the jury may have convicted him 

for his participation in a conspiracy in Ohio without finding 

that he or any co-conspirator committed an overt act in 

furtherance of the conspiracy in the Western District of 

Pennsylvania. He also argues that section 841(b)(1)(C) 

requires a 20-year mandatory minimum only if a court 

finds that the distribution of the substance was in the 

common law sense the proximate cause of death or serious 

 2 
bodily injury. Accordingly, even though Robinson 

acknowledges that a user of the heroin he supplied died 

from its use, he challenges the sentence because the 

district court did not make a finding that his conduct was 

a proximate cause of the user's death. 

The district court rejected Robinson's challenge to venue 

in a motion for judgment of acquittal after discharge of 

jury. At the conclusion of the sentencing hearing, the 

district court found that Bettina Allison died of a heroin 

overdose from heroin that Robinson delivered to Ronald 

Bungar, who in turn delivered it to Allison and her boyfriend, Michael Minchoff. Thus, the court found that the 

20-year mandatory minimum sentence was required. 

We conclude that Robinson waived his objection to venue 

by failing to raise the issue before the jury reached a verdict 

and that in any event venue was proper. We further 

conclude that Congress did not intend the phrase "if death 

or serious bodily harm results from the use of such

substance" in section 841(b)(1)(C) to require a showing that 

the defendant's distribution of the substance in a commonlaw sense proximately caused a death. Moreover, we hold 

that the court's well-supported findings show that there 

was a sufficient nexus between the substance and the 

death to require the imposition of the mandatory minimum 

sentence. In the circumstances, we will affirm.1 

II. FACTUAL AND PROCEDURAL HISTORY 

A. Factual History 

On November 29, 1995, Melvin Robinson sold threeeighths of a gram of heroin to Ronald Bungar in 

Youngstown, Ohio. Robinson was a long-time heroin addict, 

_________________________________________________________________ 

1. We have jurisdiction under 28 U.S.C. S 1291 and 18 U.S.C. S 3742, 

and the district court had original jurisdiction based on 28 U.S.C. 

S 3231. Although Robinson also challenges the district court's finding of 

"relevant conduct," and argues that a failure to read a proximate cause 

requirement into the text of section 841(b)(1)(C) would violate various 

constitutional provisions, we only will discuss his venue and proximate 

cause arguments since we find that these other contentions clearly lack 

merit. 

 3 
who over the years had cultivated a relationship with a 

group of addicts from Greenville, Pennsylvania, including 

Bungar and Michael Minchoff. Often one addict would

make the 45-minute trip from Greenville to Youngstown for 

a small amount of heroin to share with or sell to another 

user in Greenville. 

On November 29, Bungar made the trip to Robinson's 

Youngstown home with his girlfriend, Dolores Tofani. 

Bungar earlier had agreed to purchase three $20 (oneeighth ounce) packets of heroin for Minchoff and his 

girlfriend, Bettina Allison. Once his guests arrived, 

Robinson left the house to purchase a small amount of 

heroin for Bungar that Bungar then shared with Tofani and 

Robinson. Later, Bungar purchased three packets of heroin 

for Minchoff from Robinson. Bungar delivered these three 

packets to Minchoff and Allison when he returned to

Greenville. 

While Bungar and Tofani were at Allison's apartment, 

Allison began preparing for injection the heroin Bungar had 

bought from Robinson. Meanwhile, Minchoff injected a 

"speed-ball"2 from Robinson's heroin and some cocaine 

Bungar had obtained earlier. After about 15 minutes, 

Bungar and Tofani left Allison's apartment and they never 

saw Allison or Minchoff alive again. Bettina Allison died of 

a heroin overdose sometime between 1:00 a.m. and 5:00 

a.m. on November 30, 1995, and Minchoff died of a heroin 

overdose sometime later that day or within the next few 

days. 

B. Procedural history 

On April 16, 1997, a grand jury in the Western District 

of Pennsylvania indicted Robinson for conspiring to

distribute heroin in violation of 21 U.S.C. S 846 and 21 

U.S.C. S 841. Robinson was arrested in Ohio and was

transported to the Western District of Pennsylvania where 

he was arraigned and counsel was appointed to represent 

him. A jury trial began on July 21, 1997, and at the close 

of the government's case, Robinson unsuccessfully orally 

_________________________________________________________________ 

2. A "speed-ball" is the street term for the often dangerous mixture of 

equal parts cocaine and heroin. 

 4 
moved for judgment of acquittal in a motion which did not 

challenge venue. On July 24, 1997, the jury returned a 

verdict of guilty. On July 29, 1997, Robinson moved for a 

judgment of acquittal on the grounds, insofar as germane 

here, that the court lacked jurisdiction over the case 

because of the alleged venue defect. The district court 

denied the motion on July 31, 1997. 

The court held sentencing hearings on April 16, 1998, 

and May 7, 1998. It concluded that Robinson distributed 

heroin that resulted in Allison's, but not Minchoff 's, death. 

Thus, section 841(b)(1)(C) required a mandatory minimum 

20-year sentence which the court accordingly imposed by 

reason of Allison's death. While the court determined that 

the applicable sentencing range was 235-293 months under 

the Federal Sentencing Guidelines, in view of its imposition 

of the 20-year sentence the range was not material.

Inasmuch as the court's findings and conclusions at the 

sentencing hearing are important we quote them at length: 

 One: Defendant engaged in a conspiracy with other 

 persons, including Ronald Bungar, from on or about 

 November 29th, 1995, to on or about November 30, 

 1995, to distribute and possess with the intent to 

 distribute less than 100 grams of a mixture and 

 substance containing a detectable amount of heroin. 

 Two: Defendant on multiple occasions prior to 

 November 29, 1995, had delivered drugs to Bungar, 

 which drugs were delivered to others in Defendant's 

 presence. 

 Three: During the operation of the conspiracy, 

 Defendant obtained heroin from an unknown source 

 and co-conspirator in Ohio which Defendant delivered 

 to Bungar. 

 Four: The heroin obtained by Bungar from Defendant 

 was of high purity. 

 Five: During the operation of the conspiracy, 

 Defendant and Bungar and Dolores Tofani used a 

 portion of the drugs delivered while at the Defendant's 

 residence and in Defendant's presence. 

 5 
 Six: During the operation of the conspiracy, Bungar 

 and Tofani, with the Defendant's knowledge, left the 

 Defendant's residence with some of the heroin that 

 Bungar had obtained from Defendant. And Bungar 

 delivered part of that heroin to Bettina Allison and 

 Michael Minchoff at Allison's apartment in Greenville, 

 Pennsylvania. 

 Seven: Bungar and Tofani remained at Allison's 

 apartment for approximately 10 to 15 minutes. 

 Eight: During that 10- to 15-minute period, Minchoff 

 injected some of the heroin in, quote, speed ball, 

 unquote, form. That is, combined with cocaine while in 

 the presence of Bungar and Tofani. 

 Nine: During the aforementioned 10- to 15-minute 

 period, Bungar and Tofani observed Allison preparing 

 some of the heroin in question for injection. 

 Ten: Based upon their previous drug dealings, it was 

 reasonably foreseeable to Defendant that Bungar would 

 deliver these drugs to others. 

 Eleven: The delivery of the heroin by Bungar to 

 Minchoff and Allison was in furtherance of the 

 conspiracy of which Defendant was a member, within 

 the scope of the Defendant's agreement and reasonably 

 foreseeable in connection with the criminal activity the 

 Defendant agreed to undertake. 

 Twelve: Allison was never seen alive again after 

 Bungar and Tofani left her apartment in the early 

 morning hours of November 30, 1995. 

 Thirteen: Various persons spoke with Minchoff over 

 the telephone on November 30, 1995. 

 Fourteen: Michael Minchoff was seen alive 

 throughout the day and early evening of November 30, 

 1995, in Greenville, Pennsylvania. 

 Fifteen: On December 2nd, 1995, officers with the 

 Greenville-West Salem police department, responding to 

 reports that Allison had missed two consecutive 

 workdays without reporting, found the bodies of Allison 

 and Minchoff in Allison's apartment. 

 6 
 Sixteen: The approximate time of the death of Allison 

 was between 1 a.m. and 5:15 a.m. on November 30th, 

 1995; and the approximate time of death of Minchoff 

 was between 9 p.m. on November 30th, 1995, and 9:45 

 a.m. on December 2nd, 1995. 

 Seventeen: The December 2nd, 1995, autopsy 

 performed on the body of Allison confirmed that she 

 died from a heroin overdose and that she also had 

 cocaine, codeine, ethanol, and cannobinoids present in 

 her blood. 

 Eighteen: An autopsy performed on the body of 

 Minchoff on December 2nd, 1995, confirmed that he 

 also had died of a heroin overdose. 

 Nineteen: The death of Allison was caused by a 

 heroin overdose as a result of the heroin delivered to 

 her by Bungar during the operation of the conspiracy. 

 Twenty: The death of Minchoff was caused by a 

 heroin overdose resulting in whole or in part from the 

 heroin delivered to him by Bungar during the operation 

 of the conspiracy. 

 The Court finds that in accordance with the above 

 findings of fact, the Government has proved by clear 

 and convincing evidence that the death of Bettina 

 Allison resulted from the heroin which Defendant 

 delivered to Ronald Bungar. 

 With regard to the death of Michael Minchoff, 

 however, the Court finds that the Government has 

 failed to prove by clear and convincing evidence that 

 Minchoff 's death resulted in whole or in part from the 

 heroin which Defendant delivered to Ronald Bungar. 

 Accordingly, the Court finds that application of the 

 death enhancement set forth in Section 2D1.1(a)(2) of 

 the United States sentencing guidelines imposing a 

 base offense level of 38 is appropriate. 

 Furthermore, the Court finds that Defendant is 

 subject to a minimum term of imprisonment of 20 

 years in accordance with Title 21 of the United States 

 Code, Section 841(b)(1)(C). 

 7 
Robinson filed a motion to correct the sentence on May 

8, 1998, that the court denied on May 11, 1998. This 

appeal followed. 

III. DISCUSSION 

A. Venue 

We address Robinson's venue argument first.3 On this 

point we are exercising plenary review, as we are deciding 

the point through the application of legal principles. Article 

III, Section 2, Clause 3 of the Constitution, provides that 

"[t]he Trial of all Crimes . . . shall be held in the State 

where the said Crimes shall have been committed." The 

Sixth Amendment repeats this requirement: "In all criminal 

prosecutions, the accused shall enjoy the right to .. . trial, 

by an impartial jury of the State and district wherein the 

crime shall have been committed. . . ." Following these 

requirements, the Federal Rules of Criminal Procedure 

mandate that "the prosecution shall be had in a district in 

which the offense was committed." Fed. R. Crim. P. 18. 

Finally, Congress has provided that "any offense . . . begun 

in one district and completed in another, or committed in 

more than one district, may be inquired of and prosecuted 

in any district in which such offense was begun, continued, 

or completed." 18 U.S.C. S 3237. 

Notwithstanding the foregoing provisions, we have 

recognized that a defendant can waive the provision for an 

appropriate venue by not raising a timely contention that 

venue was mislaid. See United States v. Polin, 323 F.2d 

549, 556-57 (3d Cir. 1963); United States v. Gallagher, 183 

F.2d 342, 346-47 (3d Cir. 1950). The government argues 

that Robinson waived any objection to venue by not raising 

it before the completion of the government's case in chief. 

However, we have held that a defendant's failure to object 

before the government rests only constitutes a waiver if the 

defect in venue is clear on the face of the indictment. See 

United States v. Turley, 891 F.2d 57, 61 (3d Cir. 1989). 

_________________________________________________________________ 

3. While Robinson speaks in terms of a challenge to jurisdiction, clearly 

venue and not jurisdictional questions are involved here. See e.g., United 

States v. Polin, 323 F.2d 549, 556 (3d Cir. 1963). 

 8 
Where, as here, the offense described in the indictment is 

a conspiracy that allegedly was completed in the district in 

which the government is prosecuting the defendant, a 

defect in venue may not be clear on the indictment's face, 

and would become clear only once the government rests its 

case. Therefore, we have held that "where there is a proper 

allegation of venue in the indictment, but the government 

fails to prove that allegation at trial, a challenge to venue in 

a motion for acquittal is timely." United States v. Sandini, 

803 F.2d 123, 127 (3d Cir. 1986). Thus, Robinson could 

have timely objected to venue at the close of the 

government's case, and was not required to object before 

the close of the government's case. Id. 

Robinson contends that under Sandini he sufficiently 

preserved his objection to venue in his motion for judgment 

of acquittal five days after the jury announced its verdict. 

We, however, agree with the Courts of Appeals for the First 

and Fifth Circuits that a defendant must raise the issue of 

improper venue before the jury returns a verdict. See 

United States v. Parrish, 736 F.2d 152, 158 (5th Cir. 1984) 

(per curiam) ("Thus, the courts have consistently ruled that 

a claim of venue must be raised at least prior to a verdict."); 

United States v. Cordero, 668 F.2d 32, 44 (1st Cir. 1981) 

(same). Therefore, by raising the issue for thefirst time 

after the jury reached a verdict, Robinson waived any 

objection to venue. 

However, even if we were to find that Robinson timely 

challenged venue, we would reject his argument. The

United States can bring a prosecution in any district where 

a conspiracy was begun, continued, or completed. See 18 

U.S.C. S 3237(a). It is undisputed that Bungar delivered the 

heroin he acquired from Robinson to Minchoff and Allison 

in the Western District of Pennsylvania. 

To establish a conspiracy, the evidence must show that 

the alleged conspirators shared a unity of purpose, an 

intent to achieve a common goal, and had an agreement to 

work together to achieve that goal. See United States v. 

Powell, 113 F.3d 464, 467 (3d Cir.), cert. denied, 118 S.Ct. 

454 (1997). Here, the evidence established that Robinson 

and Bungar had a relationship based upon the use and 

distribution of heroin. Bungar estimated at trial that 

 9 
Robinson had sold him heroin approximately 80 or 90

times during this relationship. After purchasing heroin from 

Robinson, Bungar sometimes finished it at Robinson's 

house but at other times he left with heroin to share with 

or sell to others in Greenville, Pennsylvania. 

The events of November 29, 1995, were consistent with 

Bungar's and Robinson's earlier dealings. Bungarfirst 

shared a small amount of heroin with Robinson and Tofani. 

He then purchased three more packets of heroin. Robinson 

recognized that the heroin was strong, and that Bungar's 

purchase of three more packets was consistent with an 

intent to distribute it, as Bungar had often done. Together, 

Robinson and Bungar were connected in the purpose of 

distributing heroin to others in Greenville, so that they 

could continue to supply their own needs. 

Finally, it is clear that the court and both parties focused 

the jury on the distinction between a conspiracy and a 

buyer/seller agreement. Both the government and Robinson 

spent considerable time explaining the difference between 

the two types of agreements, and the district court correctly 

charged the jury on the matter. In fact, the jury asked for 

and received clarification of the court's instruction 

regarding a buyer/seller agreement. In view of all the 

circumstances, it is clear that the government established 

that there were overt acts in furtherance of the conspiracy 

in the Western District of Pennsylvania so venue properly 

was laid there. 

B. The "results from" language of sectio n 841(b)(1)(C) 

Our review of a district court's rulings on sentencing 

matters concerning the interpretation of a statute requiring 

a mandatory minimum sentence is plenary. See United

States v. Collado, 975 F.2d 985, 990 (3d Cir. 1992). Here, 

we exercise plenary review because, notwithstanding

Robinson's challenge to the sentence, he concedes "that 

clear and convincing evidence proves that but for the use of 

heroin that Robinson delivered to Bungar, Allison would 

not have died." Br. at 15. Robinson argues that for section 

841(b)(1)(C) and what he contends are the relevant 

sentencing guideline provisions to apply, the government 

needs to show that his conduct was the proximate cause of 

 10 
Allison's death. Robinson asks us to remand to the district 

court for resentencing using this standard. 

We have two preliminary observations on the sentencing 

issue. First, it is not clear to us why the district court's 

findings with respect to Minchoff led it to conclude that the 

mandatory minimum sentence was not applicable by 

reason of his death. Second, even though the government 

does not contend that the district court made a proximate 

cause finding with respect to Allison's death, it seems to us 

that its findings certainly came quite close to satisfying that 

standard. Nevertheless, we take the case on the basis the 

parties present it, that only Allison's death is involved and 

proximate cause was not established. 

Although we have not decided the sentencing issue, the 

Court of Appeals for the Fourth Circuit in United States v. 

Patterson, 38 F.3d 139 (4th Cir. 1994), held that section 

841(b)(1)(C) imposes no "reasonable foreseeability of death" 

requirement. 38 F.3d at 145.4 In the circumstances, there 

can be no question but that if we adopt Robinson's position 

we must reject Patterson. 

Patterson held that the "plain language" of section

841(b)(1)(C) neither requires nor indicates that a district 

court must find that death resulting from the use of a drug 

distributed by a defendant was a reasonably foreseeable 

event. Id. The court explained that the"statute puts drug 

dealers and users on clear notice that their sentences will 

be enhanced if people die from using the drugs they

distribute. . . . Where serious bodily injury or death results 

from the distribution of certain drugs, Congress has elected 

to enhance a defendant's sentence regardless of whether 

the defendant knew or should have known that death 

would result." Patterson, 38 F.3d at 145. The Patterson 

court then explained that it would "not second-guess this 

unequivocal choice." Id. 

_________________________________________________________________ 

4. The court declined to decide whether section 841(b)(1)(C) includes an 

intervening or superseding cause exception to the application of its 

enhancement since it upheld the district court'sfinding that there was 

no intervening or superseding cause of death. Id. at 146. There was no 

intervening or superseding cause here either. 

 11 
We will not either. After all, our role is to "give effect to 

Congress's intent." Idahoan Fresh v. Advantage Produce, 

Inc., 157 F.3d 197, 202 (3d Cir. 1998). Where, as here, 

Congress' language is "plain and unambiguous," we simply 

apply the language of the statute as written. Here, the 

conspiracy was to distribute heroin. Thus, Robinson was 

subject "to the same penalties as those prescribed for the 

offense, the commission of which was the object of the . . . 

conspiracy." 21 U.S.C. S 846. Under section 841(b)(1)(C), in 

a distribution of heroin case "if death or serious bodily 

injury results from the use of such substance" a minimum 

20-year sentence was required. 

It is absolutely clear under the district court's 

unassailable findings that, in the course of the conspiracy 

Robinson delivered the drugs to Bungar, and that in

furtherance of the conspiracy Bungar delivered the drugs to 

Allison. It was reasonably foreseeable to Robinson that 

Bungar would deliver the drugs to someone else, and it is 

indisputable that Allison's death was, in the words of the 

district court, "caused by a heroin overdose as a result of 

the heroin delivered to her by Bungar during the operation 

of the conspiracy." In the circumstances, it would be 

sophistry to say that Allison's death did not result from the 

use of the heroin delivered pursuant to the conspiracy. 

Robinson relies on Chief Judge Becker's concurring and 

dissenting opinion in United States v. Neadle, 72 F.3d 

1104, amended, 79 F.3d 14 (3d Cir. 1995), to argue that 

the statutory language is ambiguous. In interpreting the 

sentencing guidelines, Judge Becker stated that"the plain 

meaning of `resulted from' connotes causation" and that 

"[t]he notion of causation runs throughout the law -- 

including the criminal law -- and it is generally understood 

to encompass two concepts. A defendant's conduct 

generally must be both the `cause in fact' and the 

`proximate cause' of some harm before liability is imposed." 

Id. at 1115, 1119. In this case, however, unlike in Neadle, 

we are not dealing with the application of intricate 

provisions of the sentencing guidelines to calculate a 

financial loss. Rather, we are applying a statute dealing 

with a discrete problem, the distribution of controlled 

substances, products which Congress recognized will in 

 12 
some cases cause death or serious bodily injury. In short, 

Congress recognized that the risk is inherent in the product 

and thus it provided that persons who distribute it do so at 

their peril. It is obvious Congress intended in such a case 

that the 20-year mandatory minimum would apply if death 

or serious bodily injury resulted from the use of the 

substance without regard for common law proximate cause 

concepts.5 

In reaching our result, we point out that the sentencing 

guidelines have limited relevancy here. While it is true that 

the court established a guidelines range and imposed a 

sentence within that range, in fact the court fixed the 

sentence without regard for that range as it imposed the 

statutory mandatory minimum sentence. 

We also observe that U.S.S.G. S 1B1.3(a)(3), which 

Robinson cites, is completely consistent with our result. 

Under that section, relevant conduct with respect to factors 

determining sentencing range include all "harm that

resulted from the acts and omissions specified" in U.S.S.G. 

S 1B1.3(a)(1)(B). Section 1B1.3(a)(1)(B) includes as relevant 

conduct in a "jointly undertaken criminal activity . . . 

whether or not charged as a conspiracy[ ] all reasonably 

foreseeable acts and omissions of others in furtherance of 

the jointly undertaken criminal activity." Here, of course, 

Bungar's distribution of the heroin to a third party was not 

merely reasonably foreseeable by Robinson. After all, the 

evidence we describe above shows that Robinson intended 

that it be distributed for its distribution was the very 

purpose of the conspiracy. To the extent, therefore, that 

section 1B1.3(a)(3) is implicated here, there can be no 

doubt that it is satisfied. 

We recognize that in some cases it is possible that the 

death or serious bodily injury which "results from the use 

of a [controlled] substance" may be so remote a 

consequence from the criminal conduct of the defendant 

with respect to the substance that a court might conclude 

_________________________________________________________________ 

5. We are not concerned here with cases calculating the total quantity of 

drugs in a conspiracy attributable to a particular defendant. See e.g., 

United States v. Collado, 975 F.2d 985 (3d Cir. 1992). There is no 

question but that Robinson was the source of the heroin involved here. 

 13 
that it would not be consistent with congressional intent to 

apply the mandatory 20-year minimum sentence. Wherever, 

if anywhere, that line might be is of no concern to us now. 

In this case, Robinson conspired to distribute the heroin 

and a person to whom it almost immediately was 

distributed consumed it and died as a result. Surely, here 

the mandatory minimum sentence is applicable. 

Accordingly, this case does not require us to consider 

whether there is or should be a principled way to limit the 

application of section 841(b)(1)(C) when cause in fact is 

established. 

In this regard, we reiterate that the district court's 

findings in this case came close to satisfying a proximate 

cause standard. Indeed, if they did not, it was only because 

the court did not make a finding that it was foreseeable 

that Allison or another consumer of the heroin might suffer 

death or serious bodily injury from it. Yet, it cannot have 

been the intent of Congress to require such a finding as a 

condition of a mandatory minimum sentence being 

applicable under sections 841(b)(1)(C), for surely what 

concerned Congress was the inherent risk from the use of 

controlled substances. Plainly, if we read a particularized 

foreseeability requirement into that section, we would limit 

the applicability of the section significantly and frustrate 

Congress' intent. If section 841(b)(1)(C) is not to be applied 

as presently written, Congress and not this court should 

narrow its application. 

IV. CONCLUSION 

For the foregoing reasons, the judgment of conviction and 

sentence will be affirmed. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 14