The government could not prove to a reasonable jury that the heroin sold by Joshua Ewing resulted in the death of another person, and the Sixth Circuit was compelled to vacate the jury's erroneous and wrongful verdict. United States v. Ewing, 749 Fed.Appx. 317 (6th Cir. 2018). So the case was sent back to the District Court, the United States District Court for the Eastern District of Kentucky, Hon. Joseph M. Hood presiding, for resentencing on Ewing's lesser conviction of distributing a controlled substance, a violation of 21 USC § 841.
Ewing’s revised total offense level under the sentencing guidelines was determined to be 12, but his criminal history category was VI, which yielded a guideline range of 30 – 37 months. Although the government had not proven that the drug sold by Ewing had resulted in a death, it requested an 18 level upward departure under USSG § 5K2.1, a provision reserved for cases in which “death resulted.” The government attempted to support this request with testimony from an agent, who said nothing at all about whether the drugs Ewing sold caused any death, and from a toxicologist, who testified that cocaine alone had not caused the death in question. Nevertheless, the district judge concluded that a “death resulted” and imposed a sentence of 15 years.
The Sixth Circuit reversed and vacated Ewing sentence. First, the court observed both that the government failed to prove a causal link beyond reasonable doubt between the drug sold and the death, and that the “District Court on remand unjustifiably assumed, without deciding, that” the drug sold by Ewing caused the death. Second, the district judge had limited consideration of the 3553 factors only to seriousness of the offense, giving no weight to “the residual uncertainty as to whether the drugs [the decedent] procured from Ewing caused his death.” Finally, “and perhaps most glaringly, the District Court failed to address Ewing’s explicit warning to [the decedent] that the drugs were unusually potent,” which the court regarded as a mitigating factor.
The latest decision in the Ewing saga, one that illustrates the federal appeals courts main job – considering application of the advisory sentencing guidelines – is United States v. Ewing.
Circuit Judge John K. Bush, who distinguished himself and earned a judicial post from Senator Mitch McConnell for racist blog posts directed at President Obama, dissented.
And so it goes.
