(Slip Opinion) OCTOBER TERM, 2013 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

BURRAGE v. UNITED STATES 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE EIGHTH CIRCUIT 

No. 12–7515. Argued November 12, 2013—Decided January 27, 2014 

Long-time drug user Banka died following an extended binge that included using heroin purchased from petitioner Burrage. Burrage 

pleaded not guilty to a superseding indictment alleging, inter alia, 

that he had unlawfully distributed heroin and that “death . . . resulted from the use of th[at] substance”—thus subjecting Burrage to a 

20-year mandatory minimum sentence under the penalty enhancement provision of the Controlled Substances Act, 21 U. S. C. 

§841(b)(1)(C). After medical experts testified at trial that Banka

might have died even if he had not taken the heroin, Burrage moved 

for a judgment of acquittal, arguing that Banka’s death could only 

“result from” heroin use if there was evidence that heroin was a butfor cause of death. The court denied the motion and, as relevant 

here, instructed the jury that the Government only had to prove that 

heroin was a contributing cause of death. The jury convicted Burrage, and the court sentenced him to 20 years. In affirming, the 

Eighth Circuit upheld the District Court’s jury instruction. 

Held: 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 for penalty enhancement under §841(b)(1)(C) unless such use is a but-for cause of the death or injury. Pp. 4–15.

(a) Section 841(b)(1)(C)’s “death results” enhancement, which increased the minimum and maximum sentences to which Burrage was 

exposed, is an element that must be submitted to the jury and found 

beyond a reasonable doubt. See, e.g., Alleyne v. United States, 570 

U. S. ___, ___. Pp. 4–5.

(b) Because the Controlled Substances Act does not define “results 

from,” the phrase should be given its ordinary meaning. See Asgrow 
 

 

 

 

2 BURRAGE v. UNITED STATES 

Syllabus 

Seed Co. v. Winterboer, 513 U. S. 179, 187. Ordinarily, that phrase 

imposes a requirement of actual causality, i.e., proof “ ‘that the harm 

would not have occurred’ in the absence of—that is, but for—the defendant’s conduct.” University of Tex. Southwestern Medical Center 

v. Nassar, 570 U. S. ___, ___. Similar statutory phrases—“because 

of,” see id., at ___, “ ‘based on,’ ” Safeco Ins. Co. of America v. Burr, 

551 U. S. 47, 63, and “ ‘by reason of,’ ” Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176—have been read to impose a but-for

causation requirement. This Court declines to adopt the Government’s permissive interpretation of “results from” to mean that use of

a drug distributed by the defendant need only contribute to an aggregate force, e.g., mixed-drug intoxication, that is itself a but-for cause 

of death. There is no need to address a special rule developed for

cases in which multiple sufficient causes independently, but concurrently, produce death, since there was no evidence that Banka’s heroin use was an independently sufficient cause of his death. And 

though Congress could have written §841(b)(1)(C) to make an act or

omission a cause-in-fact if it was a “substantial” or “contributing” factor in producing death, Congress chose instead to use language that 

imports but-for causality. Pp. 6–12.

(c) Whether adopting the but-for causation requirement or the 

Government’s interpretation raises policy concerns is beside the 

point, for the Court’s role is to apply the statute as written. Pp. 12– 

14. 

687 F. 3d 1015, reversed and remanded. 

SCALIA, J., delivered the opinion of the Court, in which the ROBERTS, 

C. J., and KENNEDY, THOMAS, BREYER, and KAGAN, JJ., joined, and in 

which ALITO, J., joined as to all but Part III–B. GINSBURG, J., filed an 

opinion concurring in the judgment, in which SOTOMAYOR, J., joined. 
 

 

_________________ 

_________________ 

Cite as: 571 U. S. ____ (2014) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 12–7515 

MARCUS ANDREW BURRAGE, PETITIONER v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT
 

[January 27, 2014]

 JUSTICE SCALIA delivered the opinion of the Court.* 

The Controlled Substances Act imposes a 20-year mandatory minimum sentence on a defendant who unlawfully 

distributes a Schedule I or II drug, when “death or serious

bodily injury results from the use of such substance.” 21 

U. S. C. §841(a)(1), (b)(1)(A)–(C) (2012 ed.). We consider 

whether the mandatory-minimum provision applies when 

use of a covered drug supplied by the defendant contributes to, but is not a but-for cause of, the victim’s death or 

injury. 

I 

Joshua Banka, a long-time drug user, died on April 15,

2010, following an extended drug binge. The episode

began on the morning of April 14, when Banka smoked 

marijuana at a former roommate’s home. Banka stole 

oxycodone pills from the roommate before departing and 

later crushed, cooked, and injected the oxycodone. Banka 

and his wife, Tammy Noragon Banka (Noragon), then met 

with petitioner Marcus Burrage and purchased one gram 

—————— 

*JUSTICE ALITO joins all but Part III–B of this opinion. 
 

2 BURRAGE v. UNITED STATES 

Opinion of the Court 

of heroin from him. Banka immediately cooked and injected some of the heroin and, after returning home, injected more heroin between midnight and 1 a.m. on April 

15. Noragon went to sleep at around 5 a.m., shortly after 

witnessing Banka prepare another batch of heroin. When 

Noragon woke up a few hours later, she found Banka dead 

in the bathroom and called 911. A search of the couple’s

home and car turned up syringes, 0.59 grams of heroin,

alprazolam and clonazepam tablets, oxycodone pills, a 

bottle of hydrocodone, and other drugs.

Burrage pleaded not guilty to a superseding indictment

alleging two counts of distributing heroin in violation of 

§841(a)(1). Only one of those offenses, count 2, is at 

issue here. (Count 1 related to an alleged distribution of

heroin five months earlier than the sale to Banka.) Count 2 

alleged that Burrage unlawfully distributed heroin on

April 14, 2010, and that “death . . . resulted from the use

of th[at] substance”—thus subjecting Burrage to the 20­

year mandatory minimum of §841(b)(1)(C). 

Two medical experts testified at trial regarding the

cause of Banka’s death. Dr. Eugene Schwilke, a forensic 

toxicologist, determined that multiple drugs were present 

in Banka’s system at the time of his death, including 

heroin metabolites, codeine, alprazolam, clonazepam metabolites, and oxycodone. (A metabolite is a “product of 

metabolism,” Webster’s New International Dictionary

1544 (2d ed. 1950), or, as the Court of Appeals put it, 

“what a drug breaks down into in the body,” 687 F. 3d 

1015, 1018, n. 2 (CA8 2012).) Although morphine, a heroin

metabolite, was the only drug present at a level above

the therapeutic range—i.e., the concentration normally

present when a person takes a drug as prescribed—Dr.

Schwilke could not say whether Banka would have lived 

had he not taken the heroin. Dr. Schwilke nonetheless 

concluded that heroin “was a contributing factor” in

Banka’s death, since it interacted with the other drugs to 
 

Cite as: 571 U. S. ____ (2014) 3 

Opinion of the Court 

cause “respiratory and/or central nervous system depression.” App. 196. The heroin, in other words, contributed 

to an overall effect that caused Banka to stop breathing.

Dr. Jerri McLemore, an Iowa state medical examiner, 

came to similar conclusions. She described the cause of 

death as “mixed drug intoxication” with heroin, oxycodone, 

alprazolam, and clonazepam all playing a “contributing” 

role. Id., at 157. Dr. McLemore could not say whether 

Banka would have lived had he not taken the heroin, but 

observed that Banka’s death would have been “[v]ery less 

likely.” Id., at 171. 

The District Court denied Burrage’s motion for a judgment of acquittal, which argued that Banka’s death did 

not “result from” heroin use because there was no evidence 

that heroin was a but-for cause of death. Id., at 30. The 

court also declined to give Burrage’s proposed jury instructions regarding causation. One of those instructions 

would have required the Government to prove that heroin

use “was the proximate cause of [Banka’s] death.” Id., at 

236. Another would have defined proximate cause as

“a cause of death that played a substantial part in bringing about the death,” meaning that “[t]he death must 

have been either a direct result of or a reasonably probable

consequence of the cause and except for the cause the

death would not have occurred.” Id., at 238. The court 

instead gave an instruction requiring the Government to

prove “that the heroin distributed by the Defendant was a 

contributing cause of Joshua Banka’s death.” Id., at 241– 

242. The jury convicted Burrage on both counts, and the 

court sentenced him to 20 years’ imprisonment, consistent 

with §841(b)(1)(C)’s prescribed minimum. 

The Court of Appeals for the Eighth Circuit affirmed 

Burrage’s convictions. 687 F. 3d 1015. As to the causationin-fact element of count 2, the court held that the 

District Court’s contributing-cause instruction was consistent with its earlier decision in United States v. Mon-
 

 

4 BURRAGE v. UNITED STATES 

Opinion of the Court 

nier, 412 F. 3d 859, 862 (CA8 2005). See 687 F. 3d, at 

1021. As to proximate cause, the court held that Burrage’s

proposed instructions “d[id] not correctly state the law”

because “a showing of ‘proximate cause’ is not required.” 

Id., at 1020 (quoting United States v. McIntosh, 236 F. 3d 

968, 972–973 (CA8 2001)). 

We granted certiorari on two questions: Whether the

defendant may be convicted under the “death results” provision (1) when the use of the controlled substance was a 

“contributing cause” of the death, and (2) without separately instructing the jury that it must decide whether the

victim’s death by drug overdose was a foreseeable result of 

the defendant’s drug-trafficking offense. 569 U. S. ___ 

(2013). 

II 

As originally enacted, the Controlled Substances Act, 84

Stat. 1242, 21 U. S. C. §801 et seq., “tied the penalties for

drug offenses to both the type of drug and the quantity 

involved, with no provision for mandatory minimum sentences.” DePierre v. United States, 564 U. S. ___, ___ 

(2011) (slip op., at 3–4). That changed in 1986 when

Congress enacted the Anti-Drug Abuse Act, 100 Stat.

3207, which redefined the offense categories, increased the 

maximum penalties and set minimum penalties for many 

offenders, including the “death results” enhancement at 

issue here. See id., at 3207–4. With respect to violations 

involving distribution of a Schedule I or II substance (the

types of drugs defined as the most dangerous and addictive1) the Act imposes sentences ranging from 10 years to 

—————— 

1Schedule I drugs, such as heroin, have “a high potential for abuse,” 

“no currently accepted medical use in treatment in the United

States,” and “a lack of accepted safety” even “under medical supervision.” 

§812(b)(1). Schedule II drugs, such as methamphetamine, likewise 

have “a high potential for abuse” and a propensity to cause “severe

psychological or physical dependence” if misused. 21 U. S. C. §812(b)(2). 
 

Cite as: 571 U. S. ____ (2014) 5 

Opinion of the Court 

life imprisonment for large-scale distributions, §841(b) 

(1)(A), from 5 to 40 years for medium-scale distributions, §841(b)(1)(B), and not more than 20 years for 

smaller distributions, §841(b)(1)(C), the type of offense at

issue here. These default sentencing rules do not apply,

however, when “death or serious bodily injury results from

the use of [the distributed] substance.” §841(b)(1)(A)–(C). 

In those instances, the defendant “shall be sentenced to a 

term of imprisonment which . . . shall be not less than 

twenty years or more than life,” a substantial fine, “or 

both.”2 Ibid. 

Because the “death results” enhancement increased the 

minimum and maximum sentences to which Burrage was

exposed, it is an element that must be submitted to the 

jury and found beyond a reasonable doubt. See Alleyne v. 

United States, 570 U. S. ___, ___ (2013) (slip op., at 14–15); 

Apprendi v. New Jersey, 530 U. S. 466, 490 (2000). Thus, 

the crime charged in count 2 of Burrage’s superseding

indictment has two principal elements: (i) knowing or 

intentional distribution of heroin, §841(a)(1),3 and (ii)

death caused by (“resulting from”) the use of that drug,

§841(b)(1)(C). 

—————— 

2Although this language, read literally, suggests that courts may 

impose a fine or a prison term, it is undisputed here that the “death

results” provision mandates a prison sentence. Courts of Appeals have 

concluded, in effect, that the “or” is a scrivener’s error, see, e.g., United 

States v. Musser, 856 F. 2d 1484, 1486 (CA11 1988) (per curiam). The 

best evidence of that is the concluding sentence of §841(b)(1)(C), which 

states that a court “shall not place on probation or suspend the sentence of any person sentenced under the provisions of this subparagraph which provide for a mandatory term of imprisonment if death or 

serious bodily injury results.” (Emphasis added.) 3Violation of §841(a)(1) is thus a lesser included offense of the crime 

charged in count 2. It is undisputed that Burrage is guilty of that

lesser included offense. 
 

 

6 BURRAGE v. UNITED STATES 

Opinion of the Court 

III
 

A 

The law has long considered causation a hybrid concept,

consisting of two constituent parts: actual cause and legal 

cause. H. Hart & A. Honoré, Causation in the Law 104 

(1959). When a crime requires “not merely conduct but 

also a specified result of conduct,” a defendant generally 

may not be convicted unless his conduct is “both (1) the 

actual cause, and (2) the ‘legal’ cause (often called the 

‘proximate cause’) of the result.” 1 W. LaFave, Substantive Criminal Law §6.4(a), pp. 464–466 (2d ed. 2003) (hereinafter LaFave); see also ALI, Model Penal Code §2.03, 

p. 25 (1985). Those two categories roughly coincide with

the two questions on which we granted certiorari. We find 

it necessary to decide only the first: whether the use of

heroin was the actual cause of Banka’s death in the sense 

that §841(b)(1)(C) requires. 

The Controlled Substances Act does not define the 

phrase “results from,” so we give it its ordinary meaning. 

See Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 

(1995). A thing “results” when it “[a]rise[s] as an effect, 

issue, or outcome from some action, process or design.” 

2 The New Shorter Oxford English Dictionary 2570 (1993). 

“Results from” imposes, in other words, a requirement of 

actual causality. “In the usual course,” this requires proof

“‘that the harm would not have occurred’ in the absence 

of—that is, but for—the defendant’s conduct.” University 

of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 

___, ___ (2013) (slip op., at 5–6) (quoting Restatement of 

Torts §431, Comment a (1934)). The Model Penal Code 

reflects this traditional understanding; it states that

“[c]onduct is the cause of a result” if “it is an antecedent

but for which the result in question would not have occurred.” §2.03(1)(a). That formulation represents “the 

minimum requirement for a finding of causation when a

crime is defined in terms of conduct causing a particular 
 

 

Cite as: 571 U. S. ____ (2014) 7 

Opinion of the Court 

result.” Id., Explanatory Note (emphasis added); see also 

United States v. Hatfield, 591 F. 3d 945, 948 (CA7 2010) 

(but for “is the minimum concept of cause”); Callahan v. 

Cardinal Glennon Hospital, 863 S. W. 2d 852, 862 (Mo. 

1993) (same).

Thus, “where A shoots B, who is hit and dies, we can say 

that A [actually] caused B’s death, since but for A’s conduct B would not have died.” LaFave 467–468 (italics 

omitted). The same conclusion follows if the predicate act 

combines with other factors to produce the result, so long

as the other factors alone would not have done so—if, so to 

speak, it was the straw that broke the camel’s back. Thus, 

if poison is administered to a man debilitated by multiple 

diseases, it is a but-for cause of his death even if those 

diseases played a part in his demise, so long as, without 

the incremental effect of the poison, he would have lived.

See, e.g., State v. Frazier, 339 Mo. 966, 974–975, 98 S. W. 

2d 707, 712–713 (1936).

This but-for requirement is part of the common understanding of cause. Consider a baseball game in which the

visiting team’s leadoff batter hits a home run in the top of 

the first inning. If the visiting team goes on to win by a

score of 1 to 0, every person competent in the English 

language and familiar with the American pastime would 

agree that the victory resulted from the home run. This is 

so because it is natural to say that one event is the outcome or consequence of another when the former would 

not have occurred but for the latter. It is beside the point

that the victory also resulted from a host of other necessary causes, such as skillful pitching, the coach’s decision 

to put the leadoff batter in the lineup, and the league’s

decision to schedule the game. By contrast, it makes little 

sense to say that an event resulted from or was the outcome of some earlier action if the action merely played a

nonessential contributing role in producing the event. If 

the visiting team wound up winning 5 to 2 rather than 
 

 

8 BURRAGE v. UNITED STATES 

Opinion of the Court 

1 to 0, one would be surprised to read in the sports page 

that the victory resulted from the leadoff batter’s early,

non-dispositive home run.

Where there is no textual or contextual indication to the 

contrary, courts regularly read phrases like “results from”

to require but-for causality. Our interpretation of statutes

that prohibit adverse employment action “because of ” an 

employee’s age or complaints about unlawful workplace

discrimination is instructive. Last Term, we addressed 

Title VII’s antiretaliation provision, which states in part: 

“It shall be an unlawful employment practice for an 

employer . . . to discriminate against any individual 

. . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or 

participated in any manner in an investigation, 

proceeding, or hearing under this subchapter.” 42 

U. S. C. §2000e–3(a) (2006 ed.) (emphasis added). 

Given the ordinary meaning of the word “because,” we 

held that §2000e–3(a) “require[s] proof that the desire to

retaliate was [a] but-for cause of the challenged employment action.” Nassar, supra, at ___ (slip op., at 11–12). 

The same result obtained in an earlier case interpreting a

provision in the Age Discrimination in Employment Act

that makes it “unlawful for an employer . . . to discharge

any individual or otherwise discriminate against any 

individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” 29 U. S. C. §623(a)(1) (emphasis added).

Relying on dictionary definitions of “[t]he words ‘because 

of ’”—which resemble the definition of “results from” 

recited above—we held that “[t]o establish a disparatetreatment claim under the plain language of [§623(a)(1)]

. . . a plaintiff must prove that age was [a] ‘but for’ cause of 

the employer’s adverse decision.” Gross v. FBL Financial 
Cite as: 571 U. S. ____ (2014) 9 

Opinion of the Court 

Services, Inc., 557 U. S. 167, 176 (2009).4 

Our insistence on but-for causality has not been restricted to statutes using the term “because of.” We have, 

for instance, observed that “[i]n common talk, the phrase

‘based on’ indicates a but-for causal relationship,” Safeco 

Ins. Co. of America v. Burr, 551 U. S. 47, 63 (2007), and 

that “the phrase, ‘by reason of,’ requires at least a showing 

of ‘but for’ causation,” Gross, supra, at 176 (citing Bridge 

v. Phoenix Bond & Indemnity Co., 553 U. S. 639, 653–654 

(2008)). See also Holmes v. Securities Investor Protection 

Corporation, 503 U. S. 258, 265–268 (1992) (explaining 

that a statute permitting recovery for injuries suffered 

“‘by reason of ’” the defendant’s unlawful conduct “require[s] a showing that the defendant’s violation . . . was,” 

among other things, “a ‘but for’ cause of his injury”). State 

courts, which hear and decide the bulk of the Nation’s 

criminal matters, usually interpret similarly worded criminal statutes in the same manner. See, e.g., People v. 

Wood, 276 Mich. App. 669, 671, 741 N. W. 2d 574, 575–578 

(2007) (construing the phrase “[i]f the violation results in

the death of another individual” to require proof of but-for 

causation (emphasis deleted)); State v. Hennings, 791 

N. W. 2d 828, 833–835 (Iowa 2010) (statute prohibiting 

“‘offenses . . . committed against a person or a person’s 

property because of the person’s race’” or other protected

trait requires discriminatory animus to be a but-for cause

of the offense); State v. Richardson, 295 N. C. 309, 322– 

—————— 

4 Price Waterhouse v. Hopkins, 490 U. S. 228 (1989), is not to the contrary. The three opinions of six Justices in that case did not eliminate

the but-for-cause requirement imposed by the “because of ” provision of 

42 U. S. C. §2000e–2(a), but allowed a showing that discrimination was

a “motivating” or “substantial” factor to shift the burden of persuasion

to the employer to establish the absence of but-for cause. See University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. ___, ___ 

(2013) (slip op., at 7–10). Congress later amended the statute to 

dispense with but-for causality. Civil Rights Act of 1991, Tit. I, §107(a), 

105 Stat. 1075 (codified at 42 U. S. C. §2000e–2(m)). 
 

10 BURRAGE v. UNITED STATES 

Opinion of the Court 

323, 245 S. E. 2d 754, 763 (1978) (statute requiring suppression of evidence “‘obtained as a result of ’” police

misconduct “requires, at a minimum,” a but-for causal 

relationship between the misconduct and collection of the

evidence).

In sum, it is one of the traditional background principles 

“against which Congress legislate[s],” Nassar, 570 U. S., at 

___ (slip op., at 6–7), that a phrase such as “results from” 

imposes a requirement of but-for causation. The Government argues, however, that distinctive problems associated

with drug overdoses counsel in favor of dispensing with 

the usual but-for causation requirement. Addicts often 

take drugs in combination, as Banka did in this case, and 

according to the National Center for Injury Prevention

and Control, at least 46 percent of overdose deaths in 2010

involved more than one drug. See Brief for United States 

28–29. This consideration leads the Government to urge

an interpretation of “results from” under which use of a

drug distributed by the defendant need not be a but-for

cause of death, nor even independently sufficient to cause

death, so long as it contributes to an aggregate force (such

as mixed-drug intoxication) that is itself a but-for cause of 

death. 

In support of its argument, the Government can point to

the undoubted reality that courts have not always required strict but-for causality, even where criminal liability is at issue. The most common (though still rare) instance of this occurs when multiple sufficient causes 

independently, but concurrently, produce a result. See 

Nassar, supra, at ___ (slip op., at 6); see also LaFave 467

(describing these cases as “unusual” and “numerically in

the minority”). To illustrate, if “A stabs B, inflicting a 

fatal wound; while at the same moment X, acting independently, shoots B in the head . . . also inflicting [a fatal] 

wound; and B dies from the combined effects of the two 

wounds,” A will generally be liable for homicide even 
 

 

Cite as: 571 U. S. ____ (2014) 11 

Opinion of the Court 

though his conduct was not a but-for cause of B’s death

(since B would have died from X’s actions in any event). 

Id., at 468 (italics omitted). We need not accept or reject 

the special rule developed for these cases, since there was 

no evidence here that Banka’s heroin use was an independently sufficient cause of his death. No expert was

prepared to say that Banka would have died from the 

heroin use alone. 

Thus, the Government must appeal to a second, less 

demanding (but also less well established) line of authority, under which an act or omission is considered a causein-fact if it was a “substantial” or “contributing” factor in

producing a given result. Several state courts have adopted 

such a rule, see State v. Christman, 160 Wash. App. 

741, 745, 249 P. 3d 680, 687 (2011); People v. Jennings, 50 

Cal. 4th 616, 643, 237 P. 3d 474, 496 (2010); People v. 

Bailey, 451 Mich. 657, 676–678, 549 N. W. 2d 325, 334– 

336 (1996); Commonwealth v. Osachuk, 43 Mass. App. 71, 

72–73, 681 N. E. 2d 292, 294 (1997), but the American

Law Institute declined to do so in its Model Penal Code, 

see ALI, 39th Annual Meeting Proceedings 135–141 

(1962); see also Model Penal Code §2.03(1)(a). One prominent authority on tort law asserts that “a broader rule . . .

has found general acceptance: The defendant’s conduct is

a cause of the event if it was a material element and a 

substantial factor in bringing it about.” W. Keeton, D. 

Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law 

of Torts §41, p. 267 (5th ed. 1984) (footnote omitted). But 

the authors of that treatise acknowledge that, even in the 

tort context, “[e]xcept in the classes of cases indicated” (an

apparent reference to the situation where each of two

causes is independently effective) “no case has been found 

where the defendant’s act could be called a substantial 

factor when the event would have occurred without it.” 

Id., at 268. The authors go on to offer an alternative

rule—functionally identical to the one the Government 
 

12 BURRAGE v. UNITED STATES 

Opinion of the Court 

argues here—that “[w]hen the conduct of two or more

actors is so related to an event that their combined conduct, viewed as a whole, is a but-for cause of the event, 

and application of the but-for rule to them individually

would absolve all of them, the conduct of each is a cause in 

fact of the event.” Ibid. Yet, as of 1984, “no judicial opinion ha[d] approved th[at] formulation.” Ibid., n. 40. The 

“death results” enhancement became law just two years

later. 

We decline to adopt the Government’s permissive interpretation of §841(b)(1). The language Congress enacted

requires death to “result from” use of the unlawfully distributed drug, not from a combination of factors to which 

drug use merely contributed. Congress could have written 

§841(b)(1)(C) to impose a mandatory minimum when the 

underlying crime “contributes to” death or serious bodily 

injury, or adopted a modified causation test tailored to

cases involving concurrent causes, as five States have 

done, see Ala. Code §13A–2–5(a) (2005); Ark. Code Ann.

§5–2–205 (2006); Me. Rev. Stat. Ann., Tit. 17–A, §33

(2006); N. D. Cent. Code Ann. §12.1–02–05 (Lexis 2012); 

Tex. Penal Code Ann. §6.04 (West 2011). It chose instead 

to use language that imports but-for causality. Especially

in the interpretation of a criminal statute subject to the

rule of lenity, see Moskal v. United States, 498 U. S. 103, 

107–108 (1990), we cannot give the text a meaning that is

different from its ordinary, accepted meaning, and that

disfavors the defendant. 

B 

The Government objects that the ordinary meaning of 

“results from” will “unduly limi[t] criminal responsibility” 

and “cannot be reconciled with sound policy.” Brief for 

United States 24. We doubt that the requirement of butfor causation for this incremental punishment will prove a 

policy disaster. A cursory search of the Federal Reporter 
Cite as: 571 U. S. ____ (2014) 13 

Opinion of the Court 

reveals that but-for causation is not nearly the insuperable barrier the Government makes it out to be. See, e.g., 

United States v. Krieger, 628 F. 3d 857, 870–871 (CA7 

2010) (affirming “death results” conviction based on expert

testimony that, although the victim had several drugs in

her system, the drug distributed by the defendant was a

but-for cause of death); United States v. Webb, 655 F. 3d 

1238, 1254–1255 (CA11 2011) (per curiam) (same). Moreover, even when the prosecution is unable to prove but-for 

causation, the defendant will still be liable for violating 

§841(a)(1) and subject to a substantial default sentence

under §841(b)(1).

Indeed, it is more likely the Government’s proposal that 

“cannot be reconciled with sound policy,” given the need 

for clarity and certainty in the criminal law. The judicial

authorities invoking a “substantial” or “contributing” 

factor test in criminal cases differ widely in their application of it. Compare Wilson v. State, 24 S. W. 409, 410 

(Tex. Crim. App. 1893) (an act is an actual cause if it

“contributed materially” to a result, even if other concurrent acts would have produced that result on their own),

with Cox v. State, 305 Ark. 244, 248, 808 S. W. 2d 306, 309 

(1991) (causation cannot be found where other concurrent

causes were clearly sufficient to produce the result and the

defendant’s act was clearly insufficient to produce it (applying Ark. Code Ann. §5–2–205 (1987)).5 Here the Government is uncertain about the precise application of the

test that it proposes. Taken literally, its “contributingcause” test would treat as a cause-in-fact every act or

omission that makes a positive incremental contribution, 

—————— 

5Some cases apply what they call a “substantial factor” test only

when multiple independently sufficient causes “operat[e] together to 

cause the result.” Eversley v. Florida, 748 So. 2d 963, 967 (Fla. 1999); 

see also Callahan v. Cardinal Glennon Hospital, 863 S. W. 2d 852, 862– 

863 (Mo. 1993). We will not exaggerate the confusion by counting these

as genuine “substantial factor” cases. 
 

 

 

 

14 BURRAGE v. UNITED STATES 

Opinion of the Court 

however small, to a particular result. See Brief for State 

of Alaska et al. as Amici Curiae 20; see also Black’s Law 

Dictionary 250 (9th ed. 2009) (defining “contributing 

cause” as “[a] factor that—though not the primary cause—

plays a part in producing a result”). But at oral argument

the Government insisted that its test excludes causes that 

are “not important enough” or “too insubstantial.” Tr. of 

Oral Arg. 28. Unsurprisingly, it could not specify how 

important or how substantial a cause must be to qualify.

See id., at 41–42. Presumably the lower courts would be 

left to guess. That task would be particularly vexing since 

the evidence in §841(b)(1) cases is often expressed in terms

of probabilities and percentages. One of the experts in

this case, for example, testified that Banka’s death would 

have been “[v]ery less likely” had he not used the heroin 

that Burrage provided. App. 171. Is it sufficient that use 

of a drug made the victim’s death 50 percent more likely? 

Fifteen percent? Five? Who knows. Uncertainty of that

kind cannot be squared with the beyond-a-reasonabledoubt standard applicable in criminal trials or with the 

need to express criminal laws in terms ordinary persons 

can comprehend. See United States v. L. Cohen Grocery 

Co., 255 U. S. 81, 89–90 (1921).

But in the last analysis, these always-fascinating policy

discussions are beside the point. The role of this Court is 

to apply the statute as it is written—even if we think some 

other approach might “ ‘accor[d] with good policy.’” Commissioner v. Lundy, 516 U. S. 235, 252 (1996) (quoting 

Badaracco v. Commissioner, 464 U. S. 386, 398 (1984)). 

As we have discussed, it is written to require but-for 

cause. 

* * * 

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 
Cite as: 571 U. S. ____ (2014) 15 

Opinion of the Court 

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. The Eighth Circuit affirmed

Burrage’s conviction based on a markedly different understanding of the statute, see 687 F. 3d, at 1020–1024, and 

the Government concedes that there is no “evidence that 

Banka would have lived but for his heroin use,” Brief for 

United States 33. Burrage’s conviction with respect to

count 2 of the superseding indictment is therefore reversed, and the case is remanded for further proceedings

consistent with this opinion. 

It is so ordered. 
_________________ 

_________________ 

Cite as: 571 U. S. ____ (2014) 1 

GINSBURG, J., concurring in judgment 

SUPREME COURT OF THE UNITED STATES 

No. 12–7515 

MARCUS ANDREW BURRAGE, PETITIONER v.
 

UNITED STATES
 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE EIGHTH CIRCUIT
 

[January 27, 2014]

 JUSTICE GINSBURG, with whom JUSTICE SOTOMAYOR 

joins, concurring in the judgment. 

For reasons explained in my dissenting opinion in University of Tex. Southwestern Medical Center v. Nassar, 570 

U. S. ___, ___ (2013), I do not read “because of ” in the 

context of antidiscrimination laws to mean “solely because 

of.” See id., at ___–___, ___–___ (slip op., at 20–21, 23–24). 

And I do not agree that words “appear[ing] in two or more

legal rules, and so in connection with more than one purpose, ha[ve] and should have precisely the same scope in

all of them.” Cook, “Substance” and “Procedure” in the 

Conflict of Laws, 42 Yale L. J. 333, 337 (1933). But I do 

agree that “in the interpretation of a criminal statute 

subject to the rule of lenity,” where there is room for debate, one should not choose the construction “that disfavors the defendant.” Ante, at 12. Accordingly, I join the 

Court’s judgment.