United States v. Louis Zayas ( 2022 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-1265
_____________
UNITED STATES OF AMERICA
v.
LOUIS ANTONIO ZAYAS,
Appellant
_______________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Criminal No. 3-16-cr-00222-001)
District Judge: Honorable Malachy E. Mannion
_______________
Argued September 22, 2021
Before: SMITH, Chief Judge,* McKEE, and RESTREPO,
Circuit Judges.
(Filed: April 21, 2022)
_______________
Joseph A. O’Brien, Esq. [ARGUED]
Oliver Price & Rhodes
1212 South Abington Road
P.O. Box 240
Clarks Summit, PA 18411
Counsel for Appellant
*
Judge Smith was Chief Judge when this appeal was argued.
Judge Smith completed his term as Chief Judge and assumed
senior status on December 4, 2021.
Michelle L. Olshefski, Esq [ARGUED]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503
Counsel for Appellee
_______________
OPINION OF THE COURT
_______________
McKEE, Circuit Judge.
During the early morning hours on July 7, 2016,
Kathryn Ann Price was found dead in her bedroom from an
overdose of fentanyl. The investigation that followed led to the
arrest and prosecution of Louis Zayas. A jury subsequently
convicted Zayas of distributing and conspiring to distribute the
fentanyl that killed Price. He was also convicted of distributing
fentanyl to someone who was pregnant as well as distributing
it within 1,000 feet of a playground. The District Court
sentenced Zayas to life imprisonment.
Zayas appeals arguing that the evidence was insufficient
to establish guilt beyond a reasonable doubt, that he was
prejudiced by the government’s failure to timely disclose
potentially exculpatory evidence, and that the Court erred by
imposing two terms of life imprisonment. For the reasons
below, we agree that the evidence is insufficient to support his
conviction for distributing fentanyl within 1,000 feet of a
playground as defined by the statute. However, we reject his
other arguments and will therefore affirm in part, vacate in part,
and remand for possible resentencing.
I. BACKGROUND
Around midnight on July 7, 2016, a family member
found Kathryn Ann Price dead in her bed. She was eight
months pregnant. Investigators who responded to the
emergency call observed evidence in Price’s bedroom
consistent with an apparent drug overdose. This included drug
paraphernalia such as a spoon, syringes, and many white and
2
blue glassine baggies. Testing of the residue in a blue baggie
established that it contained fentanyl, the same substance that
an autopsy would subsequently confirm as the cause of her
death.
Text messages between Price and Louis Zayas shortly
before her death and video from surveillance cameras outside
of Price’s house soon caused investigators to focus on Zayas.
The text messages, which are discussed in detail infra Section
II.A.1., revealed that Zayas had delivered drugs to Price the
same evening that she died and that she had ingested those
drugs just before her death. Additionally, a security camera
captured Price engaging in transactions with the occupant of a
car later confirmed to be owned by Zayas. The video also
confirmed that after Price obtained drugs from Zayas, she
returned to her house and subsequently left only once to walk
her dog.
Based on this evidence, investigators arrested Zayas at
his home about a month after Price’s death. During a
Mirandized interview immediately following his arrest, Zayas
admitted to selling what he believed to be heroin to Price on
the day she overdosed. Thereafter, Zayas entered into a plea
agreement, which he subsequently withdrew. After he
withdrew from the plea agreement, a federal grand jury
returned a four-count superseding indictment charging him
with (1) conspiracy to distribute and possess with the intent to
distribute a controlled substance in violation of 21 U.S.C.
§§ 846, 841(a)(1) and (b)(1)(C);1 (2) distribution and
possession with the intent to distribute a controlled substance
in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C) and 18
U.S.C. § 2;2 (3) distribution and possession with the intent to
distribute a controlled substance within 1,000 feet of a daycare
center with an attached outdoor playground in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(C), 860, and 18 U.S.C. § 2;3 and
(4) distribution and possession with the intent to distribute a
1
(Count 1).
2
(Count 2).
3
(Count 3).
3
controlled substance to a pregnant individual in violation of 21
U.S.C. §§ 861(f), 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2.
4
Following the close of all the evidence at the ensuing
jury trial, Zayas moved for judgment of acquittal under Rule
29(a) of the Federal Rules of Criminal Procedure. Zayas
claimed that the evidence was insufficient to prove that he
delivered fentanyl to Price and that the nearby playground was
not open to the public as required for a conviction on Count 3.5
He also argued that the government had to prove that he knew
that Price was pregnant when he sold her drugs and that the
evidence was insufficient to establish that element of Count 4.6
Finally, Zayas moved to dismiss the superseding indictment
based on the government’s delayed disclosure of a potentially
exculpatory statement he made during a proffer interview held
pursuant to his initial plea discussions with the government.
The District Court denied both motions and Zayas was
convicted on all counts. The District Court subsequently
sentenced Zayas to a term of life imprisonment as mandated by
21 U.S.C. § 841(b)(1)(C). The sentence consisted of separate
terms of life imprisonment for Counts 1 and 2 and one year of
imprisonment on Counts 3 and 4, all to run concurrently. This
timely appeal followed.7
II. DISCUSSION
A. Sufficiency of Evidence
“We exercise plenary review over a district court’s
grant or denial of a motion for judgment of acquittal based on
4
(Count 4).
5
See 21 U.S.C. § 860(e) (defining a playground for purposes
of § 860(a) as “any outdoor facility . . . intended for
recreation, open to the public, and with . . . three or more
separate apparatus intended for the recreation of children”
(emphasis added)).
6
See 21 U.S.C. § 861(f) (making it unlawful to knowingly or
intentionally distribute any controlled substance to a pregnant
individual).
7
We have appellate jurisdiction to review the final decision
of the District Court pursuant to 28 U.S.C. § 1291.
4
the sufficiency of the evidence.”8 We interpret the evidence in
the light most favorable to the government as the verdict
winner and “do not weigh evidence or determine the credibility
of witnesses in making [our] determination.”9 We will sustain
a verdict if “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”10
1. Distribution of Fentanyl Resulting in
Death
Zayas was convicted on Count 2 of the superseding
indictment for distributing the fentanyl that killed Price.11
“Zayas does not deny selling Price drugs.”12 Nor does Zayas
argue the government needs to prove that he knew he was
selling Price fentanyl.13 Rather, he argues that the evidence is
insufficient to prove that the substance he sold her was the
fentanyl that caused her death. He claims that the evidence
shows only that he sold her heroin. More specifically, Zayas
believes that: (1) the record contains no evidence that the drugs
he delivered to Price contained fentanyl, (2) there is no
evidence connecting him to the blue baggie containing fentanyl
found in Price’s bedroom, and (3) that it is at least, if not more
likely, that Price obtained the fatal drugs from someone else.
We disagree.
8
United States v. Starnes, 583 F.3d 196, 206 (3d Cir. 2009).
9
United States v. Gambone, 314 F.3d 163, 169–70 (3d Cir.
2003) (quotation marks omitted).
10
United States v. Bansal, 663 F.3d 634, 665 (3d Cir. 2011)
(quotation marks omitted).
11
See 21 U.S.C. §§ 841(a)(1), (b)(1)(C); 18 U.S.C. § 2;
Burrage v. United States, 571 U.S. 204, 210, 134 S. Ct. 881,
187 L. Ed. 2d 715 (2014) (“Because the ‘death results’
enhancement increased the minimum and maximum
sentences . . . it is an element that must be submitted to the
jury and found beyond a reasonable doubt.”).
12
Appellant Br. at 11.
13
See United States v. Barbosa, 271 F.3d 438, 458–59 (3d
Cir. 2001) (holding § 841 does not require “the Government
[to] prove more than the defendant’s knowledge that he was
trafficking in a controlled substance”).
5
Our standard of review of a challenge to the sufficiency
of the evidence is highly deferential.14 As we noted at the
outset, the government’s evidence included text messages
between Zayas and Price during the thirty-four-hour period
before her death, video footage outside the Price home, and
witness testimony, including admissions Zayas made after his
arrest. The text messages themselves are evidence of the
delivery of controlled substances, negotiating the prices and
quantity of drugs, as well as locations of meetings. The relevant
texts begin the day before Price’s overdose.
July 5, 2016 text messages:
2:06 p.m. Zayas: Hey I made a new contact with
damn good shit
2:45 p.m. Price: Like how good
2:59 p.m. Zayas: Not like the best I’ve ever had
but good enough to get way
higher than intended lol
3:00 p.m. Zayas: I actually get if from the
middle man Scotts friend justin
3:02 p.m. Price: How much
...
3:09 p.m. Price: Ima try to get sum cash how
much 40?
...
4:41 p.m. Zayas: Yeah 40 but I’d rather give
him 60 than give these guys
another 30 lol15
July 6, 2016 text messages:
1:13 p.m. Zayas: I’m just getting up I’m a Lil
sick so u have anything
1:20 p.m. Price: Na not rite now… Can u pawn
Reg tools?
2:06 p.m. Zayas: Not really none of the places
really want them
2:09 p.m. Price: I’m working on get cash now
u can get?
...
14
United States v. Hart, 273 F.3d 363, 371 (3d Cir. 2001).
15
SApp. at 010–013 (Exs. 3.4–3.7); App. at 540–42.
6
2:32 p.m. Price: I’m getting 50$ in a Lil bit
2:33 p.m. Price: U can get
2:34 p.m. Zayas: Yeah n his stuff is goid
2:34 p.m. Zayas: Good
2:36 p.m. Price: Kk I asked the kid to drop it
off b4 3 …..u got a sub tho to
I can get like a half?
2:39 p.m. Price: Call now set it uo
3:03 p.m. Zayas: He’s just getting off Hazelton
exit now he’s gonna call me
back in a minute
...
3:04 p.m. Price: So u wanna meet him here
3:04 p.m. Price: He’s got it on him
3:16 p.m. Price: ?
3:36 p.m. Price: Ask him how long.. My sister
will be home soon16
At Price’s request, and consistent with her 2:36 p.m.
message, her friend Anthony Almeida placed $50 in the
mailbox outside her home between 2:00 p.m. and 3:00 p.m.
Video footage shows Zayas’s car parking near Price’s house at
3:55 p.m. on July 6. Zayas was the driver, and an individual
identified as Justin Haines was in the passenger seat. Price can
be seen approaching the car on the passenger side and engaging
in a hand-to-hand transaction as she leans into the car.17 During
the interview after his arrest, Zayas told the DEA that he and
Haines obtained money from Price to sell her drugs.18 The
video also shows Zayas and Haines driving away after Price
went to his car. Zayas and Haines then proceeded to another
location in Hazleton, Pennsylvania to get drugs to sell to Price.
About an hour later, the text messaging between Price and
Zayas resumed:
16
SApp. at 015–020 (Exs. 3.9–3.14); App. at 543–47.
17
Zayas admitted that he obtained the suspected heroin with
Haines’ assistance and that Haines was with him in the car
both times they went to Price’s house.
18
Zayas and Price agreed to “1 n a half 4 50” meaning one
and half bundles (fifteen bags) of drugs for $50. SApp. at 019
(Ex. 3.13); App. at 626. The two agreed that Price would get
ten bags, and five would go to Zayas as a tip for the effort.
App. at 627.
7
4:55 p.m. Zayas: Call u in 1 min
5:06 p.m. Price: Pull into the parking lot
5:07 p.m. Price: Give me a min my sister is leaving19
Zayas returned to Price’s house at 5:07 p.m., between
five and seven hours before Price’s death. Again, Price walked
to the passenger side of the car where she obtained a bundle, or
ten bags of drugs, via another hand-to-hand exchange before
returning to her house. Afterward, the two continued to
exchange text messages:
5:30 p.m. Price: Please don’t forget about the sub I
need it for the morning ….Friday I
get paid to so Ima give u either cash
or tic for it whichever u prefer
5:31 p.m. Price: There good tho… Thank god u only
did 220
Zayas stated in his post-arrest interview that after delivering
the drugs to Price he too used some of the same drugs and
immediately passed out. When asked if it was common for him
to pass out after using heroin “[h]e emphatically stated no, he’s
never passed out a day in his life.”21 Zayas’s statement is
significant because it suggests that the drugs he and Price used
that day were unusually potent. Increased potency is consistent
with the presence of fentanyl, rather than the drugs being solely
heroin.22
As noted, video footage established that Price left her
house only to walk her dog after purchasing drugs from Zayas.
At about 9:30 p.m., Price told her mother she was going to bed
and went to her bedroom. Around 10:00 p.m., Price’s sister
19
SApp. at 021 (Ex. 3.15); App. at 547.
20
SApp. at 021–022 (Exs. 3.15–3.16); App at 548. A “tic” is
short for ticket, which is slang terminology for a bag of
heroin or drugs. App. at 649.
21
App. at 633.
22
See United States v. Walker, 922 F.3d 239, 244 n.2 (4th
Cir. 2019), cert. granted and judgment vacated on other
grounds, Walker v. United States, --- U.S.----, 140 S. Ct. 474,
205 L. Ed. 2d 266 (2019) (noting that “[f]entanyl is
sometimes added to heroin to increase its potency, which also
increases the risk of an overdose death” (quotation marks
omitted)).
8
tried to call Price, however Price did not respond. Around
midnight on July 7, Price’s sister arrived home, entered Price’s
bedroom and found Price unresponsive and face down in her
bed. Emergency personnel were summoned and responding
paramedics found Price had no signs of life and concluded she
was dead.
A forensic pathologist conducted an autopsy on Price
the next day. The findings included a fresh needle mark on
Price’s right hand that was believed to have occurred at the
time of her death. The toxicology report revealed the level of
fentanyl in Price’s blood was twenty-four nanograms per mil
and a metabolite of fentanyl at twelve nanograms per mil. The
testifying pathologist concluded, with 100 percent confidence,
that the cause of Price’s death was the injection of fentanyl.
Additionally, a forensic toxicologist concluded that heroin did
not play a part in Price’s death.
It is uncontroverted that Zayas delivered a controlled
substance to Price in the hours just before her death. The
evidence includes Zayas’s admission that he sold Price drugs
about seven hours before she was found dead. During their
“drug talk,” she asked him to buy her $30 worth of drugs and
he agreed. Zayas, along with Haines, picked up the money
from Price at her house, and after getting the drugs, returned,
and delivered one bundle (ten bags) of drugs to Price. These
facts were not disputed at trial, nor are they at issue on appeal.
Furthermore, they are corroborated by Price’s text messages
and video footage from security cameras at Price’s house.
Since Price was trying to get drugs before she met Zayas
and only left home to walk the dog after Zayas sold her drugs,
the jury could readily conclude that those drugs were the only
drugs she had that night. The evidence is sufficient to
demonstrate that she had neither money nor opportunity to
obtain drugs from anyone else.23 On the day of her death, Price
even told Zayas that she did not have any drugs. When Zayas
told Price that he was a “[l]il sick” and asked if she had
23
See United States v. Sumlin, 956 F.3d 879, 891–93 (6th Cir.
2020) (finding sufficient evidence to support a conviction
under § 841(a)(1) based on circumstances including the
temporal proximity of a drug-related text message exchange).
9
anything, Price responded, “Na not rite now.”24 Moreover, the
evidence indicates that Price did not have money to purchase
drugs other than the drugs she obtained from Zayas. She texted
Zayas, “Ima try to get sum cash how much $40?”25 and “Can u
pawn Reg tools? . . . I’m working on get cash now . . . I’m
getting 50$ in a Lil bit . . . I asked the kid to drop it off b4 3.”26
Finally, Price reminded Zayas to get her a “sub,” short for
suboxone,27 and she would pay him on Friday when she would
get paid.28 A DEA agent also testified that in his experience,
habitual drug users, like Price, do not store drugs for later use.
A reasonable trier of fact could also conclude Price
injected the drugs she purchased from Zayas shortly after
receiving them and that those drugs contained a fatal dose of
fentanyl. Soon after Zayas delivered the drugs to Price she
texted him: “There good tho… Thank god u only did 2.”29 This
text suggests not only that she used the drugs Zayas gave her a
few minutes before, but also alludes to the drug’s potency. As
we noted earlier, Zayas also discussed the potency of the drugs
he was getting from his source on the day before he delivered
drugs to Price. He described them as “damn good shit” and
“good enough to get way higher than intended.”30 Zayas also
told the DEA that when he took the drugs, after delivering
some to Price, he passed out. He said he never passes out after
taking heroin. This clearly allows a rational trier of fact to
conclude beyond a reasonable doubt that Zayas delivered drugs
containing a fatal dose of fentanyl to Price, and she died
because she ingested them.31 Although Zayas may not have
24
SApp. at 015 (Ex. 3.9); App. at 543; see also United States
v. Ross, 990 F.3d 636, 639 (8th Cir. 2021) (concluding that a
drug user’s urgent desire to ingest drugs undermines a claim
that they already had drugs in their possession).
25
SApp. at 012 (Ex. 3.6); App. at 542.
26
SApp. at 015–018 (Exs. 3.9–3.12); App. at 543–45.
27
Suboxone is a medication designed to reduce opioid
withdrawal symptoms along with the desire to use opioids.
United States v. Brizuela, 962 F.3d 784, 787 (4th Cir. 2020).
28
SApp. at 021–022 (Exs. 3.15–3.16); App at 548.
29
SApp. at 022 (Ex. 3.16); App. at 548.
30
SApp. at 010–011 (Exs. 3.4–3.5); App. at 540–41.
31
See United States v. Davis, 970 F.3d 650, 658 (6th Cir.
2020) (holding it is rational for a jury to infer that the drug at
10
known that the drugs he delivered to Price contained fentanyl,
his subjective belief is simply irrelevant.32
Zayas’s argument that the evidence is insufficient
because the record instead suggests a connection between the
blue glassine bag, found near Price’s body, and a drug dealer
other than himself is also unavailing. He contends the evidence
could be interpreted to suggest that “drugs delivered by
[another drug dealer] caused Price’s death.”33 Zayas argues this
drug dealer, only identified as “Dee,” was more likely to have
supplied the fentanyl to Price than he was. This assertion is
mostly based on the fentanyl residue found in a blue glassine
baggie near Price’s body. Although around 100 blue and white
glassine baggies were found in Price’s bedroom, only a single
blue bag contained any residue and it was the only one
submitted to the laboratory. Testing confirmed it was fentanyl
residue.
Text messages between Price and Dee five days before
her death show that Price asked Dee, “U have the blue one’s,”
referring to blue glassine baggies.34 Zayas told the DEA
immediately following his arrest that he believed the baggies
he delivered to Price on the day of her death were white, but he
was not sure. Zayas seizes upon that statement to argue that
there is no evidence connecting him to the blue baggie found
in Price’s home. He also relies on the prior text exchange
between Price and Dee to claim that Price got the blue baggie
from Dee and not from him. But this argument misses the
point.35
issue was fentanyl, rather than heroin, based on its high
potency).
32
See Barbosa, 271 F.3d at 458–59 (holding that the
government need not prove the defendant’s knowledge that
he was trafficking in the precise controlled substance at issue
to sustain a conviction under § 841(a)).
33
Appellant Br. at 20.
34
SApp. at 032 (Ex. 4.9); App. at 664.
35
See United States v. Caraballo-Rodriguez, 726 F.3d 418,
432 (3d Cir. 2013) (“It is up to the jury—not the district court
judge or our Court—to examine the evidence and draw
inferences.”).
11
Text messages between Price and Dee do not negate the
evidence against Zayas nor diminish its sufficiency.36
“Reversing the jury’s conclusion simply because another
inference is possible—or even equally plausible—is
inconsistent with the scope of our inquiry for review of
sufficiency of the evidence challenges.”37 Instead, only when
the record contains no evidence, however it is weighed, from
which the jury could find guilt beyond a reasonable doubt, will
we overturn a verdict.38
As we have explained, the jury could reasonably
conclude that Price did not have any drugs before she
purchased the drugs from Zayas just before her death. The jury
could also reasonably conclude that those drugs contained
fentanyl because both Price and Zayas had discussed the drugs’
unusual potency. There was clearly something different about
the drugs that Price obtained from Zayas the night she
overdosed, and it is mere speculation to argue that she had
drugs from someone other than Zayas. In fact, the evidence is
to the contrary. Price’s own text messages support that she did
not have any drugs the night of her death before she obtained
drugs from Zayas. The evidence is clearly sufficient to
establish Zayas’s guilt beyond a reasonable doubt.39
2. Conspiracy to Distribute Fentanyl
Resulting in Death
The jury also convicted Zayas of conspiring to
distribute (or distributing) a controlled substance resulting in
death as charged in Count 1. To establish a conspiracy, the
government must prove a shared unity of purpose, an intent to
achieve a common goal, and an agreement to work together
36
See United States v. Garner, 915 F.3d 167, 169 (3d Cir.
2019) (“[W]e do not draw inferences in the defendant’s favor
when reviewing for sufficiency of the evidence . . . .”).
37
Caraballo-Rodriguez, 726 F.3d at 432.
38
United States v. McNeill, 887 F.2d 448, 450 (3d Cir. 1989).
39
See United States v. Miller, 527 F.3d 54, 60 (2008) (“[W]e
must uphold a jury’s verdict ‘if there is substantial evidence
from which a rational trier of fact could find guilt beyond a
reasonable doubt.’” (quoting United States v. Brown, 3 F.3d
673, 680 (3d Cir. 1993))).
12
toward that goal.40 The government produced enough evidence
to prove that Zayas distributed fentanyl to Price as the result of
a preconceived scheme or common understanding with
Haines.41
According to Zayas, three people could be considered
co-conspirators: Dee, Price, or Haines. He argues however,
that the evidence fails to establish the required elements of
conspiracy between himself and any of those three individuals.
Although we agree that a rational trier of fact could not find a
conspiratorial agreement between Zayas and Dee or Price,
Zayas is incorrect about Haines.42 Zayas argues that “[w]hile
[he] indicated that he intended to compensate Justin [Haines],
the record does not show that Justin expected compensation or
that he had any knowledge that in being in Zayas’s presence he
was participating in an illegal conspiracy.”43 This is only half
true.
Zayas and Haines were in the car together and picked
up the money from Price. They also both returned and
delivered the drugs to her. The text messages between Zayas
and Price reveal that they intended to tip Haines for acting as
the middleman in the transaction. He was part of a
conspiratorial agreement with Zayas to obtain drugs for Price
and then distribute drugs to her.
40
United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002).
41
See United States v. Bailey, 840 F.3d 99, 108 (3d Cir.
2016).
42
In response to Zayas’s Rule 29 motion for acquittal of the
conspiracy count, along with finding that the jury could
convict Zayas for conspiracy with Haines, the District Court
incorrectly concluded Zayas could also be found to have
conspired with Price. However, “[i]t is well-settled that a
simple buyer-seller relationship, without any prior or
contemporaneous understanding beyond the sale agreement
itself, is insufficient to establish that the buyer was a member
of the seller’s conspiracy.” United States v. Gibbs, 190 F.3d
188, 197 (3d Cir. 1999). The government never argued Price
was a co-conspirator with Zayas.
43
Appellant Br. at 23.
13
Yet the most substantial evidence of an agreement
between Zayas and Haines was Zayas’s description of going
with Haines to get the drugs after picking up the money from
Price. Zayas explained that he drove Haines to a street corner,
dropped him off, and waited for Haines to contact him by cell
phone. When Haines contacted Zayas a couple of minutes later,
Zayas picked up Haines and the two returned to Price’s house
to deliver the drugs. The jury could hardly conclude anything
other than that Zayas and Haines conspired together to
distribute the controlled substance to Price.
3. Distribution of Fentanyl to a Pregnant
Individual
Zayas moved for judgment of acquittal on Count 4
(distribution to someone who is pregnant) at the close of the
evidence. 21 U.S.C. § 861(f), captioned “Distribution of
controlled substance to pregnant individual,” states in its
entirety: “Except as authorized by this subchapter, it shall be
unlawful for any person to knowingly or intentionally provide
or distribute any controlled substance to a pregnant individual
in violation of any provision of this subchapter.” Aside from
contending that the evidence was insufficient to establish he
delivered fentanyl, Zayas claimed that the record was also
insufficient to establish that he knew Price was pregnant. Along
with arguing that the evidence was sufficient, the government
argued that it was unnecessary to prove knowledge of the
pregnancy to sustain a conviction under the statute. Rather, the
government claimed that § 861(f) is a crime of strict liability.
The District Court agreed that knowledge of Price’s
pregnancy was not required to sustain a conviction under §
861(f) and instructed the jury accordingly:
Count 4 of the superseding indictment charges
the defendant with distribution of a controlled
substance to a pregnant individual, namely
Kathryn Price. This is a separate violation of
federal law. In order to find the defendant guilty
of this offense, in addition to those elements that
I’ve already explained to you, you must also find
that the government prove beyond a reasonable
doubt that the defendant distributed a controlled
substance to a pregnant individual, namely
14
Kathryn Price. The government need not prove
that when the defendant distributed the
controlled substance he knew that the individual
was pregnant.44
The jury convicted Zayas for distribution of a controlled
substance to a pregnant individual (Price) as charged in Count
4.
As noted, under the statute, it is “unlawful for any
person to knowingly or intentionally provide or distribute any
controlled substance to a pregnant individual.”45 The Supreme
Court has explained that “courts ordinarily read a phrase in a
criminal statute that introduces the elements of a crime with the
word ‘knowingly’ as applying that word to each element.”46
The Court explained that this is so because “[i]n ordinary
English, where a transitive verb has an object, listeners in most
contexts assume that an adverb (such as knowingly) that
modifies the transitive verb tells the listener how the subject
performed the entire action, including the object as set forth in
the sentence.”47
This presumption, that the mens rea requirement
generally extends to each element of a criminal statute, may be
rebutted in special contexts.48 The government urges us to
agree with other circuit courts of appeals in deciding the
appropriate mens rea in a comparable provision of § 861. It
points us to § 861(a)(1), which makes it unlawful “to
knowingly and intentionally . . . employ, hire, . . . or coerce a
person under eighteen years of age to violate any provision of
this subchapter or subchapter II.”49 Five circuit courts of
appeals have held that the government need not prove the
defendant knew the juvenile’s age to establish guilt under that
subsection.50 These courts reason that the legislative intent of
44
App. at 736–37 (emphasis added).
45
21 U.S.C. § 861(f) (emphasis added).
46
Flores-Figueroa v. United States, 556 U.S. 646, 652, 129
S. Ct. 1886, 173 L. Ed. 2d 853 (2009).
47
Id. at 650.
48
947 F.3d 139, 143 (3d Cir. 2020).
49
21 U.S.C. § 861(a)(1).
50
See United States v. Frazier, 213 F.3d 409, 419 (7th Cir.
2000); United States v. Cook, 76 F.3d 596, 602 (4th Cir.
15
protecting juveniles would be subverted if a defendant could
close his or her eyes to the age of minors.51 Thus, argues the
government here, we should similarly consider the need to
protect unborn children in deciding the required mens rea in §
861(f).
Concomitantly, the government urges us to approach §
861(f) as we approached § 860(a) in United States v. Jackson.52
As will be discussed below, § 860(a) makes the possession
with the intent to distribute a controlled substance within 1,000
feet of a school unlawful.53 In Jackson we concluded that §
860(a) does not require the government to prove the defendant
knew that s/he was within 1,000 feet of a school while
possessing a controlled substance.54 Instead, the government
need only prove the defendant knowingly possessed the
controlled substance within 1,000 feet of a school and intended
to distribute it.55 Thus, the government contends that
knowledge of pregnancy is similarly not required under §
861(f).
The government’s argument ignores the textual
distinctions between sections 860(a) and 861(f). Section 860(a)
does not contain any mens rea requirement. Rather, it simply
states that “[a]ny person who violates section 841(a)(1) . . . by
distributing . . . a controlled substance . . . within one thousand
feet of . . . [a] school” is subject to twice the maximum penalty
authorized by § 841(b).56 The mens rea element of § 860(a) is
found in the violation of § 841(a)(1), but that is distinct from
1996); United States v. Chin, 981 F.2d 1275, 1280 (D.C. Cir.
1992); United States v. Valencia-Roldan, 893 F.2d 1080,
1083 (9th Cir. 1990); United States v. Carter, 854 F.2d 1102,
1108–09 (8th Cir. 1988).
51
See, e.g., Frazier, 213 F.3d at 419 (“The intent of Congress
in § 861(a) was to protect juveniles indicating an intent to
place the burden on the drug dealer to know who is working
for him.”).
52
443 F.3d 293 (3d Cir. 2006).
53
21 U.S.C. § 860(a).
54
Jackson, 443 F.3d at 299.
55
Id.56
21 U.S.C. § 860(a).
16
the substantive provisions of § 860(a) that criminalize
distribution within 1,000 feet of a school.57
Unlike § 860(a), § 861(f) includes an express mens rea
requirement. That requirement specifies that it is “unlawful for
any person to knowingly or intentionally provide or distribute
any controlled substance to a pregnant individual.”58 The text
therefore limits criminal liability under § 861(f) to such sales
being made “intentionally or knowingly . . . to a pregnant
individual[.]”59 The limitation is independent of, and in
addition to, the other provisions of § 841(a)(1). Therefore,
Jackson supports the conclusion that the government bears the
burden of proving the defendant’s knowledge of an
individual’s pregnancy.
Section 861(f) thus requires knowledge of the
transferee’s pregnancy. Even if the government’s contrary
interpretation suggests an ambiguity in the statute, we would
then consult legislative history to resolve it.60 The floor debate
when § 861(f) was offered as an amendment to the Controlled
Substances Act shows that the seller’s knowledge of the
pregnancy was intended to be a required element.61 In
addressing questions on whether the text of the amendment
required proof of a defendant’s knowledge of the pregnancy,
Senator Hawkins, who offered the amendment, answered:
“Yes, reasonable knowledge.”62
Accordingly, the District Court here erred in removing
the knowledge element from the jury’s consideration by
instructing jurors that such proof was unnecessary. This does
not, however, mean that Zayas’s conviction on Count 4 must
be vacated. “[T]he omission of an element [from jury
57
Jackson, 443 F.3d at 299.
58
21 U.S.C. § 861(f).
59
See id.60
United States v. Hodge, 321 F.3d 429, 437 (3d Cir. 2003)
(“When the language of a statute is ambiguous, we look to its
legislative history to deduce its purpose.”).
61
See 99 CONG. REC. 26,696–98 (1986).
62
Id. at 26,698 (statement of Sen. Hawkins).
17
instructions] is subject to harmless-error analysis.”63 “Unlike
such defects as the complete deprivation of counsel or trial
before a biased judge, an instruction that omits an element of
the offense does not necessarily render a criminal trial
fundamentally unfair or an unreliable vehicle for determining
guilt or innocence.”64 Therefore, rather than vacating the
conviction, as Zayas urges, we must review for harmless error.
The harmless-error standard is the converse of the
insufficient evidence standard. Rather than ask whether any
rational jury could conclude that Zayas knew Price was
pregnant, we must determine whether a rational juror viewing
the evidence could only have concluded that he knew she was
pregnant.65
Dr. Ross, who conducted the autopsy, along with
Price’s father and mother, all testified that Price was eight
months pregnant. When asked “how big” Price was in her
eighth month of pregnancy, her mother stated: “She was huge.
You can definitely tell she was pregnant.”66 Similarly, when
asked how far along Price was in her pregnancy, Price’s sister
stated, “She had that pregnant belly.”67 Finally, when Price’s
brother was asked if Price was noticeably pregnant, he
responded, “[V]ery.”68 There was also evidence that Zayas and
Price were together in a car only a week before her death in
July. The jury thus could have readily assumed that her
stomach would not have been covered by any kind of heavy
clothing that would have prevented Zayas from seeing her
“pregnant belly.” We therefore conclude that the evidence
supported only one conclusion: Zayas knew Price was
63
Neder v. United States, 527 U.S. 1, 10, 119 S. Ct. 1827,
144 L. Ed. 2d 35 (1999).
64
Id. at 9 (emphasis in original omitted).
65
See United States v. Waller, 654 F.3d 430, 434 (3d Cir.
2011) (“[R]equir[ing] reversal unless it can be ‘prove[d]
beyond a reasonable doubt that the error complained of did
not contribute to the verdict obtained.’” (third alteration in
original) (quoting Chapman v. California, 386 U.S. 18, 24, 87
S. Ct. 824, 17 L. Ed. 2d 705 (1967))).
66
App. at 206.
67
App. at 248.
68
App. at 278.
18
pregnant when he sold her the drugs that killed her. The Court’s
erroneous charge as to that element of § 861(f) was therefore
harmless.
4. Distribution or Possession with the Intent
to Distribute Fentanyl within 1,000 Feet of
a Playground
Count 3 of the superseding indictment charged Zayas
with distribution or possession with the intent to distribute a
controlled substance within 1,000 feet of a playground in
violation § 860(a). This section provides that
[a]ny person who violates section 841(a)(1) . . .
by distributing, possessing with intent to
distribute . . . a controlled substance . . . within
one thousand feet of, the real property
comprising a . . . playground . . . is . . . subject to
(1) twice the maximum punishment authorized
by section 841(b) of this title; and (2) at least
twice any term of supervised release authorized
by section 841(b).69
Section 860(e)(1) defines a playground as “any outdoor facility
. . . intended for recreation, open to the public, and with any
portion thereof containing three or more separate apparatus
intended for the recreation of children.”70
By convicting Zayas under § 860(a), the jury
necessarily concluded that he distributed fentanyl within 1,000
feet of the playground attached to the Busy Bee day care
facility. The day care is located across the street from Price’s
house, where the delivery took place. The Busy Bee’s owner
testified about the characteristics of the facility, including the
attached playground. The facility itself is privately owned and
comprises the entire bottom level of a building. Members of
the general public may pay to enroll in the day care. Attached
to the rear of the day care center is a fenced-in play area,
containing several pieces of plastic equipment for enrolled
children to use. The fence is secured by a latch.
Zayas moved for a Rule 29 acquittal on this Count
arguing that the evidence was insufficient to establish that the
69
21 U.S.C. § 860(a).
70
Id. § 860(e)(1) (emphasis added).
19
Busy Bee playground satisfied the statutory definition of
playground under § 860(e)(1). Specifically, he asserted that the
attached playground is not “open to the public.”71 The jury was
instructed that a conviction for this offense could be sustained
by finding beyond a reasonable doubt that Zayas knowingly
and intentionally possessed with intent to distribute fentanyl
“within 1,000 feet of the real property comprising a daycare
center with an attached outdoor playground.”72 The jury,
however, was not provided with the statutory definition of a
playground. Only after the jury returned a guilty verdict did the
District Court deny Zayas’s motion for acquittal, finding, as a
matter of law, the playground was open to the public within the
meaning of § 860(e)(1).
We now join several other circuit courts of appeals in
holding that the definition of a playground must be proven as
an element of § 860(a).73 In United States v. McQuilkin, we
held that § 860 is a substantive offense separate from §
841(a)(1); it is not a sentencing enhancement.74 We reasoned
that “it requires a separate and distinct element—distribution
71
App. at 696.
72
App. at 734.
73
See United States v. Rojas Alvarez, 451 F.3d 320, 328 (5th
Cir. 2006) (holding “the congressional definition of
playground must be proven as an element of a § 860(a)
offense”); United States v. Migi, 329 F.3d 1085, 1087 (9th
Cir. 2003) (“The Government must prove four elements to
meet the definition of a ‘playground.’”); United States v.
Horsley, 56 F.3d 50, 51–52 (11th Cir. 1995) (affirming a
conviction where the evidence was sufficient to establish that
the elements of the definition of “playground” as established
by Congress); United States v. Clanton, 32 F.3d 569 (6th Cir.
1994) (unpublished table decision) (“From these facts, a
rational trier of fact could conclude . . . that the playgrounds
in issue were open to the public . . . .”); United States v.
Parker, 30 F.3d 542, 552–53 (4th Cir. 1994) (concluding,
because Congress chose to define playground in a specific
manner, proof must be adduced to each of the four-part
definition in § 860(a) to sustain a jury’s conviction).
74
78 F.3d 105, 108 (3d Cir. 1996).
20
within 1,000 feet of a school.”75 Thus, due process requires that
a conviction under § 860(a) be supported by proof beyond
reasonable doubt of all the elements of that offense.76 These
include the distribution, or possession with intent to distribute,
a controlled substance “within 1000 feet of (1) an ‘outdoor
facility,’ which is (2) ‘intended for recreation,’ (3) ‘open to the
public,’ and also (4) contains ‘three or more separate apparatus
intended for the recreation of children.’”77
Here, the jury was asked to weigh the evidence of
Zayas’s intent to distribute a controlled substance within 1,000
feet of a playground without knowing the government had to
prove that the area next to the Busy Bee constituted a
playground under § 860(a). When examining the adequacy of
a jury charge, “we determine whether the instruction, viewed
as a whole in the light of the evidence, fairly and adequately
submits the issues to the jury.”78 “[W]here terms are not readily
understood by the jury or where the possibility of confusion
concerning a term exists, the court should define or explain
such term.”79 Unlike many other facilities enumerated in §
860(a), such as elementary schools or universities, Congress
provided a specific definition for a playground.80
To sustain a conviction under § 860(a), the government
must prove a playground meets the statutory definition in §
75
Id. at 108–09.
76
See United States v. Harra, 985 F.3d 196, 211 (3d Cir.
2021) (“Once the Government chooses to charge a particular
offense, it undertakes the burden to ‘convince the trier of all
the essential elements of guilt.’” (quoting In re Winship, 397
U.S. 358, 361, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970))).
77
Rojas Alvarez, 451 F.3d at 328 (quoting 21 U.S.C. §
860(e)(1)).
78
United States v. Castro, 776 F.2d 1118, 1128 (3d Cir.
1985).
79
United States v. Whitehead, 176 F.3d 1030, 1040 (8th Cir.
1999) (alternation in original) (quotation marks omitted).
80
See United States v. Smith, 13 F.3d 380, 382 (10th Cir.
1993) (holding conclusory statements describing a park as a
“playground” were insufficient to prove the within 1,000 feet
of a playground element of § 860(a)).
21
860(e)(1). That requires that the facility be open to the public.81
The ordinary term “playground” has varied meanings. “We
refer to standard reference works such as legal and general
dictionaries in order to ascertain the ordinary meaning of
words.”82 The Oxford English Dictionary defines a playground
as “[a] piece of ground used for playing on, esp. one attached
to a school or in a public park.”83 Merriam-Webster defines it
as “a piece of land used for and usually equipped with facilities
for recreation especially by children” or “an area known or
suited for activity of a specified sort.”84 But because Congress
limited the reach of the statute to playgrounds “open to the
public,” not all playgrounds, as defined above, are
“playgrounds” as defined by Congress. Therefore, in Zayas’s
case, the jury had to find beyond a reasonable doubt that his
distribution of fentanyl occurred near a playground as defined
in the statute, rather than a “playground” in the ordinary sense
of the term. The jury was never informed of that.
Whether a playground is open to the public is a mixed
question of law and fact that is typically submitted to the jury.85
Since whether the Busy Bee playground was open to the public
was not properly submitted to this jury, Zayas’s conviction
under § 860(a) can only stand if the court’s omission was
harmless.86 This is unlike the factual determination of whether
Zayas knew that Price was pregnant when he sold her the fatal
dose of drugs. Here, the failure to instruct the jury on the
statutory definition of a playground and then asking the jury to
81
Rojas Alvarez, 451 F.3d at 328.
82
United States v. Geiser, 527 F.3d 288, 294 (3d Cir. 2008)
(citing Appalachian States Low-Level Radioactive Waste
Comm’n v. Pena, 126 F.3d 193, 197–98 (3d Cir. 1997)).
83
Playground, Oxford English Online Dictionary,
https://www.oed.com/view/Entry/145499?
redirectedFrom=playground#eid (last visited Mar. 6, 2022).
84
Playground, Merriam-Webster Online Dictionary,
https://www.merriam-webster.com/dictionary/playground
(last visited Mar. 6, 2022).
85
See Horsley, 56 F.3d at 52 (affirming the district court’s
submission of whether a playground was open to the public to
the jury as a factual issue “since it could not be resolved
without reference to the evidence in the record”).
86
See Neder, 527 U.S. at 10.
22
determine whether the Busy Bee playground satisfied the
definition in § 860(a) was not harmless.
The government’s contention that this playground was
open to the public is solely based on the testimony of the Busy
Bee’s owner who reported that the day care facility itself is
open to the general public on a fee basis. The government
therefore argues that is sufficient for any jury to reasonably
infer that the attached playground is similarly open to the
public. We are unpersuaded.
The term “open to the public,” as used in the statute,
implicates the accessibility of the playground. In the statute’s
penalty section (a), the words “public” and “private” are often
used to identify applicable types of facilities.87 Examples
include a “public or private college,” a “public or private youth
center,” and “public swimming pool.”88 Therefore, “public”
and “private” in the statute are adjectives that modify the
proprietary nature of each facility. Playground, however, is
distinctly conditioned in section (e) and must be “open to the
public.”89 Public is thus used as a noun, modified by “open to.”
Therefore, the playground must be accessible to the general
public rather than being publicly maintained or owned.
That the Busy Bee allows members of the general public
to enroll in its day care facility and thereby gain access to the
attached playground does not, without more, make the
playground itself accessible to the general public. In fact, when
asked at trial whether the playground “is . . . open to the general
public for use,” the owner responded that it was not.90 The
government’s assertion that the Busy Bee playground is open
to the public because anyone can gain access to it by enrolling
in the day care center would negate the congressional
restriction on the reach of the statute. It is hard to imagine a
playground that would not be “public” under the government’s
broad reading. A member of the general public could gain
access to even the most restrictive facilities by paying a fee and
satisfying any other membership requirements. The most
restrictive private club is, after all, accessible to any member
87
21 U.S.C. § 860(a).
88
Id.89
Id. § 860(e).
90
App. at 428.
23
of the public who joins the club and pays applicable fees. We
therefore reject the government’s invitation to stretch this
statute to include the Busy Bee playground.
We also consider that the Busy Bee playground is
surrounded by a fence secured with a latch. While the existence
of a latched fence is not dispositive of whether a playground is
or is not open to the public, it is certainly relevant to the
inquiry. Without evidence that the secured fence serves some
purpose other than keeping the public out and restricting
access, we can only conclude that the fence serves to exclude
the general public from the recreational area it encompasses.
Moreover, in interpreting whether the Busy Bee
playground is accessible to the public, we are persuaded by the
very helpful and thoughtful analysis of an analogous state
statute by the Texas Court of Criminal Appeals in Curlee v.
State.91 There, in concluding that evidence was insufficient to
support the “open to the public” element of the Texas drug-free
zone statute, the court relied largely on the owner’s apparent
intention to control and limit access to the playground.92 Curlee
involved a church playground surrounded by a chain link fence
with four gates.93 Evidence showed that two of the gates were
locked, one with a deadbolt, the other with a padlock, while the
other two gates could have been locked in a similar manner.94
The Court in Curlee concluded that the locked gates signified
that the church intended to assert dominion and control over
access to the playground. That those attempts were less than
perfect, or even inadequate, to keep members of the general
public out, did not transform the playground into one that was
“open to the public.”95
91
620 S.W.3d 767 (Tex. Crim. App. 2021). The Texas statute
criminalizing possession within 1,000 feet of a playground,
like § 860(a), requires that the playground be “open to the
public.” See Tex. Health & Safety Code Ann. §
481.134(a)(3)(B).
92
Curlee, 620 S.W.3d at 780–81.
93
Id. at 781.
94
Id.
95
Id.
24
The fencing surrounding the Busy Bee playground
similarly suggests the owner sought to exert at least some level
of control over access to the playground and preclude access
by the general public, even though that exercise of dominion
was far from perfected. The fence contained a single gate
secured with a latch, and it is unclear from the record whether
it could be, or was intended to be, locked. Nevertheless, the
fact that it may not have been locked cannot be interpreted as
an open invitation to members of the general public to “come
on in” and use the Busy Bee’s facilities for recreation. It is also
fair to assume that a member of the general public would not
conclude he or she was permitted to enter and use the
playground just because the gate may not have been locked.
Accordingly, we will vacate Zayas’s conviction on Count 3 for
selling a controlled substance within 1,000 feet of a playground
as defined in § 860(e)(1), and we will remand for resentencing
on that Count.
B. Disclosure of Brady Material
Zayas also contends that the superseding indictment
should have been dismissed because the government failed to
disclose exculpatory evidence in a timely manner. To the
extent that this evidence constitutes Brady material,96 it was
made available to Zayas in the afternoon on the second day of
a four-day trial. Zayas was therefore able to effectively use the
evidence at trial, and any delayed disclosure was successfully
cured.
Zayas’s challenge centers on the government’s failure
to timely disclose one of his statements that he believed the
drugs that he delivered to Price were in white bags.97 He told
the DEA investigators this twice. The first time was while
being interviewed immediately following his arrest when he
stated he was not sure but thought maybe they were white. This
statement was disclosed to Zayas before trial. The second time
was during the proffer interview with the DEA after Zayas’s
initial agreement to plead guilty and was memorialized in an
agent’s notes. These notes, however, were not provided to
Zayas until late on the second day of trial and are the basis of
96
See Brady v. Maryland, 373 U.S. 83, 87, 83 S. Ct. 1194, 10
L. Ed. 2d 215 (1963) (holding that the suppression of material
evidence by the prosecution violates due process).
97
Appellant Br. at 12–13.
25
his Brady challenge. Zayas contends that the government’s
delayed disclosure of the DEA’s notes resulted in prejudice
because it greatly affected his trial strategy and interfered with
his ability to examine some witnesses about the discrepancy.
We disagree.
Brady v. Maryland held the government’s suppression
of evidence favorable to the defendant violates due process
“where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the
[government].”98 Zayas and the government agree the
statements described above are indeed Brady material.
We agree with the District Court’s conclusion that the
government disclosure of Zayas’s statement was not delayed
in a manner that prejudiced him at trial. A Brady violation
occurs if the government does not disclose evidence favorable
to the defendant that is material to either guilt or innocence,
and this failure prejudices the defendant.99 Our prejudice
inquiry turns on whether the defendant received a fair trial, one
resulting in a verdict worthy of confidence, in the absence of
the evidence.100 Here, there was no prejudice.
Zayas’s assertion—that he believed he delivered drugs
in white bags—was not new information. He raised this
concern in his pro se letter seeking to withdraw his guilty plea.
He also had his arrest interview statement expressing his belief
that he delivered drugs in white bags. It is therefore difficult to
see how failure to disclose the DEA’s note referencing this
same belief would have affected Zayas’s trial strategy.
Moreover, Zayas cross-examined several government
witnesses about this discrepancy in the color of the drug bags,
98
Brady, 373 U.S. at 87; see also Fed. R. Crim. P. 16.
99
Bansal, 663 F.3d at 670 (“Importantly, our ‘prejudice’
inquiry turns not on whether the defendant would have
received a different verdict had the evidence been produced,
but upon ‘whether in its absence he received a fair trial,
understood as a trial resulting in a verdict worthy of
confidence.’” (quoting Strickler v. Greene, 527 U.S. 263,
289–90, 119 S. Ct. 1936, 144 L. Ed. 2d 286 (1999))).
100
Id.26
the fact that a blue bag containing fentanyl was found near
Price’s body, the references in text exchanges between Price
and Dee about blue bags, and Zayas’s statement that he
believed he delivered white bags. During cross-examination
Trooper Bachman confirmed both blue and white bags were
found at the scene of Price’s death. Trooper Quiroz was
questioned about Dee’s text message about the “blue one” and
about the blue glassine baggie found near Price in her room.
Additionally, Special Agent Begley was cross-examined about
Zayas’s post-arrest statement and about how no blue bags were
found at Zayas’s house during the execution of a search
warrant.
To the extent that the government delayed disclosure of
the DEA’s note of Zayas’s statement, Zayas was nevertheless
able to use that information. He was clearly not prejudiced by
any delayed disclosure of his own statement that he was well
aware of, and the District Court correctly rejected his attempt
to dismiss the superseding indictment on that ground.
C. Sentencing
Lastly, we affirm the District Court’s sentencing of
Zayas to two concurrent terms of life imprisonment for
convictions on Counts 1 and 2.
Zayas first argues that, under the First Step Act of 2018,
the District Court incorrectly applied the statutory minimum
term of life imprisonment for his convictions under 21 U.S.C.
§ 841(b)(1)(C). The First Step Act lowered the statutory
minimum sentences and substituted the predicate convictions
for enhanced sentences from a “felony drug offense” to either
a “serious drug felony or serious violent felony” under 21
U.S.C. § 841(b)(1)(A).101 The Act also replaced “felony drug
offense” with “serious drug felony or serious violent felony”
under § 841(b)(1)(B).102
The Act did not make any revisions to § 841(b)(1)(C),
the provision that applies to Zayas’s penalty for conviction on
Counts 1 and 2. The applicable text of the section states:
101
First Step Act of 2018, Pub. L. No. 115-391, 132 Stat.
5194, 5220.
102
Id. at 5220–21.
27
If any person commits such a 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.103
Zayas has two prior convictions for a felony drug offense.
Therefore, the District Court did not err in sentencing Zayas to
two terms of life imprisonment for convictions under Counts 1
and 2 of the indictment.
Secondly, Zayas contends that the District Court erred
in adopting the Presentence Investigation Report’s base level
offense calculation of 43 resulting in the imposition of a term
of life imprisonment. However, this argument misinterprets the
sentences on Counts 1 and 2. Life sentences were statutorily
required under 21 U.S.C. § 841(b)(1)(C). As discussed above,
this section mandates a term of life imprisonment if the offense
resulted in death and the defendant had a prior felony drug
offense.
Moreover, as we have just noted, Zayas had two felony
drug offenses as defined under 21 U.S.C. § 802(44). This
section defines a “felony drug offense” as “an offense that is
punishable by imprisonment for more than one year under any
law of the United States or of a State or foreign country that
prohibits or restricts conduct relating to narcotic drugs,
mari[j]uana, anabolic steroids, or depressant or stimulant
substances.”104 Zayas’s first conviction was in 1996 for
distribution of a controlled substance within 1,000 feet of a
school under N.J. Stat. Ann. § 2C:35-7. The second conviction
was in 2009 for possession of a controlled dangerous substance
under N.J. Stat. Ann. § 2C:35-10(a)(1). Both convictions are
third-degree crimes punishable by terms of three to five years
imprisonment.105 Therefore, the District Court did not err in
sentencing Zayas to terms of life imprisonment for conviction
on Counts 1 and 2 of the superseding indictment.
103
21 U.S.C. § 841(b)(1)(C).
104
Id. § 802(44).
105
N.J. Stat. Ann. § 2C:43-6.
28
III. Conclusion
For the reasons set forth above, we will affirm the
District Court’s denial of relief on Zayas’s challenges to the
sufficiency of evidence to support guilty verdicts for
distribution and conspiracy to distribute a controlled substance,
distribution of a controlled substance to a pregnant individual,
distribution of a controlled substance resulting in death and the
imposition of terms of life imprisonment. However, we will
reverse the denial of his motion for judgment of acquittal on
his conviction for distribution of a controlled substance or
possession with the intent to distribute a controlled substance
within 1,000 feet of a playground and we will remand for
further proceedings consistent with this opinion.
29