USA v. Steven Waldrip
Filed opinion of the court by Judge Kanne. AFFIRMED. Diane P. Wood, Chief Judge; Michael S. Kanne, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6847207-1]  [16-2294]
United States Court of Appeals
For the Seventh Circuit
UNITED STATES OF AMERICA,
STEVEN WALDRIP, a/k/a “STEVE‐O”,
Appeal from the United States District Court for the
Central District of Illinois.
No. 14‐cr‐40050 — Sara Darrow, Judge.
ARGUED APRIL 4, 2017 — DECIDED JUNE 12, 2017
Before WOOD, Chief Judge, and KANNE and ROVNER, Cir‐
KANNE, Circuit Judge. A jury convicted Steven Waldrip of
distributing heroin under the Controlled Substances Act, 21
U.S.C. § 841(a)(1). Because death resulted from the use of
that heroin, Waldrip faced a twenty‐year mandatory‐
minimum sentence. § 841(b)(1)(C). The district court sen‐
tenced him to 280 months. On appeal, Waldrip argues that
the government provided insufficient evidence to prove that
the heroin was a but‐for cause of the victim’s death, that
§ 841(b)(1)(C) is unconstitutionally vague, and that his 280‐
month sentence violates the Eighth Amendment’s propor‐
tionality requirement. We reject those claims.
This case concerns a drug deal between Waldrip and Ka‐
thi Sweeney and Kyle Wilson. Sweeney and Wilson’s rela‐
tionship had an inauspicious beginning: they met at a rehab
facility in Rock Island, Illinois, where each was receiving
treatment—Sweeney for alcoholism and Wilson for heroin
addiction. Wilson’s stay was short lived. After just three
days, he decided that the treatment was ineffective and left.
But before he left, Sweeney agreed to take him to a different
facility once she left the one in Rock Island.
After she had completed her treatment, Sweeney picked
Wilson up at a bus stop, intending to take him to another re‐
hab facility. Wilson testified that Sweeney was “highly intox‐
icated” and that she asked him if he “wanted to get high one
more time” before going back to rehab. (R. 60 at 57.) Wilson
said yes and began calling known dealers. After unsuccess‐
fully reaching out to several others, Wilson called Waldrip,
his go‐to guy for heroin over the previous year.
After reaching Waldrip, Sweeney and Wilson drove to
Waldrip’s house. Waldrip got into Sweeney’s car and gave
Sweeney directions to another location. There, Sweeney and
Wilson gave Waldrip forty dollars for two bags of heroin—
each containing one‐tenth of a gram. Waldrip left and re‐
turned about an hour later with the heroin. Afterwards,
Sweeney and Wilson took Waldrip back to his house.
Sweeney then drove Wilson to a local CVS, where she
purchased the necessary supplies for injecting heroin. In the
parking lot, Wilson injected himself and Sweeney.
Sweeney reacted to the heroin almost immediately, lock‐
ing up and passing out. After initially panicking and leaving,
Wilson returned to the car and started to take Sweeney to a
hospital. But on the way, Sweeney woke up and told him to
take her home. There, Wilson put a bag of frozen peas on
Sweeney’s chest while she lay on her couch—an apparent
attempt at preventing Sweeney from dying. Wilson stayed at
Sweeney’s house that night.
The next morning, Wilson woke up suffering from with‐
drawal symptoms. Wilson needed heroin but lacked money,
so he stole some of Sweeney’s belongings to pawn for cash.
He then left Sweeney’s house for good. Later that day,
Sweeney’s sister found Sweeney dead on the couch.
Wilson claimed that Sweeney was alive when he left her
house and that he did not know Sweeney was dead until the
next day when a detective stopped him and started ques‐
tioning him. Additional investigation led detectives to
Waldrip. Several weeks later, in return for a reduced sen‐
tence, Wilson agreed to testify that Waldrip sold Sweeney
and Wilson the heroin. Officers arrested Waldrip after an
undercover DEA agent bought heroin from Waldrip three
separate times. The government charged Waldrip with one
count of distributing heroin to Sweeney and Wilson and
three counts of distributing heroin to the undercover agent.
§ 841(a)(1). Because Sweeney died from using the heroin that
Waldrip sold, the government sought an enhanced sentence
under § 841(b)(1)(C) for count one. Waldrip pled guilty to
the last three counts but went to trial on the first.
At trial, Waldrip agreed to stipulate that two government
experts—one a pathologist and the other a forensic toxicolo‐
gist—would testify that, but for her use of heroin right be‐
fore her death, Sweeney would not have died. Both stipula‐
tions were read to the jury during the government’s case‐in‐
After the government rested, Waldrip made a Rule 29
motion for judgment of acquittal. Waldrip’s counsel told the
district judge that he was “not challenging that the heroin
caused the death” but that it was Waldrip who delivered the
heroin. (R. 61 at 160–61.) The judge denied the motion. Then,
without presenting any evidence, Waldrip rested and re‐
newed his Rule 29 motion “on the same basis” as the first.
(R. 61 at 164.) Because nothing had changed in the few
minutes since the first ruling, the judge again denied the mo‐
tion. The jury convicted Waldrip of selling the heroin that
caused Sweeney’s death.
Because § 841(b)(1)(C) imposes a twenty‐year mandato‐
ry‐minimum sentence on one who distributes a controlled
substance, including heroin, and “death … results from the
use of such substance,” the district court sentenced Waldrip
to 280 months.1 Waldrip objected to the sentence, arguing
that the sentence would violate his Fifth Amendment equal‐
protection rights and would deny him his Sixth Amendment
right to effective assistance of counsel. The district court re‐
jected both of those arguments. This appeal followed.
1 The district court also sentenced Waldrip to 240 months for the three
distribution counts that he pled guilty to, to be served concurrently.
Rather than contest the district court’s rulings on his Rule
29 motions and constitutional challenges to his sentence,
Waldrip makes new arguments on appeal. Waldrip chal‐
lenges his conviction by arguing that the government pro‐
vided insufficient evidence to prove that the heroin was a
but‐for cause of Sweeney’s death. Waldrip also makes new
constitutional arguments about his sentence. First, he argues
that the increased penalty for distributing a controlled sub‐
stance, the use of which results in death, is unconstitutional‐
ly vague because it does not require the defendant to intend
or know that the controlled substance will cause death. Sec‐
ond, he argues that his 280‐month sentence on count one vi‐
olates the Eighth Amendment’s proportionality principle. We
reject those arguments below.
A. Sufficiency of the Evidence
The Supreme Court has held that, at least when “the
drug distributed by the defendant is not an independently
sufficient cause of the victim’s death or serious bodily injury,
a defendant cannot be liable under the penalty enhancement
provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but‐
for cause of the death or injury.” Burrage v. United States, 134
S. Ct. 881, 892 (2014). Waldrip argues that the government
provided insufficient evidence to prove that the heroin
caused Sweeney’s death. But he waived that argument by
expressly declining to raise it at the district court.
“Waiver is the intentional relinquishment of a known
right” and precludes appellate review by extinguishing any
error that occurred. United States v. Burns, 843 F.3d 679, 685
(7th Cir. 2016) (quoting United States v. Butler, 777 F.3d 382,
387 (7th Cir. 2015)). We consider the record as a whole when
deciding if a party knowingly decided not to raise an argu‐
ment as opposed to negligently failed to raise it. Id. at 685–
86. “[T]he important concern is whether a defendant chose,
as a matter of strategy, not to present an argument.” Id. at
685 (quoting United States v. Garcia, 580 F.3d 528, 541 (7th Cir.
While making the first Rule 29 motion for judgment of
acquittal, Waldrip’s counsel told the district judge that he
was “not challenging that the heroin caused” Sweeney’s
death. (R. 61 at 160.) Counsel instead argued only that the
government presented insufficient evidence to prove that
Waldrip sold the heroin to Sweeney and Wilson. When re‐
newing the motion moments later, counsel stated that he
was renewing the motion “on the same basis” as the earlier
motion. (R. 61 at 164.) And during closing argument, counsel
told the jury that “we’re not contesting whether Miss
Sweeney died by a heroin overdose.” (R. 77 at 32.) There is
no clearer example of an intentional relinquishment of a
known right than this: a defendant cannot explicitly tell the
judge and jury that he is not making a particular argument
and then try to make that exact argument on appeal.
And the strategic rationale for not making the but‐for
cause argument at the district court is obvious: Waldrip
stipulated that, if called, two government experts would tes‐
tify that, but for the heroin, Sweeney would not have died.
Waldrip presented no counter evidence to the experts’ re‐
ports (or any evidence for that matter). Arguing for a judg‐
ment of acquittal with those facts would have been futile.
Waldrip cites United States v. Rea for the proposition that
we review waived arguments for a manifest miscarriage of
justice under plain‐error review. 621 F.3d 595, 601–02 (7th
Cir. 2010). Taken at face value, Rea and a host of other cases
support Waldrip’s argument. See, e.g., United States v. Hickok,
77 F.3d 992, 1002 (7th Cir. 1996). But pulling favorable lan‐
guage from those cases ignores the well‐known rule that we
do not review waived arguments. The confusion created by
Rea and cases that use similar language stems from our lax
use of the terms “waiver” and “forfeiture.” See United States
v. Adigun, 703 F.3d 1014, 1021 (7th Cir. 2012); see also Freytag
v. Comm’r, 501 U.S. 868, 894 n.2 (1991) (noting that the Su‐
preme Court has used waiver and forfeiture interchangeably
even though they are different). Waiver and forfeiture are
related but distinct concepts. United States v. Olano, 507 U.S.
725, 733 (1993). Waiver, as discussed above, occurs when a
party intentionally relinquishes a known right. Forfeiture, on
the other hand, occurs when a party accidentally or negli‐
gently fails to raise an argument at the district court. Burns,
843 F.3d at 685. While we review forfeited arguments for
plain error (the standard of review that Waldrip wants here),
waiver extinguishes any error and precludes review. Olano,
507 U.S. at 733; Fed. R. Crim. Pro. 52(b).
Despite the confusion that this court and others have cre‐
ated by using waiver to mean forfeiture and forfeiture to
mean waiver, the Supreme Court and most cases in our cir‐
cuit have been clear: we do not review waived arguments on
appeal. Olano, 507 U.S. at 733; United States v. Brodie, 507 F.3d
527, 530 (7th Cir. 2007) (“Our precedent regarding the waiver
or forfeiture of rights by a criminal defendant is well‐
established. … Waiver of a right extinguishes any error and
precludes appellate review, whereas forfeiture of a right is
reviewed for plain error.”). If any of our prior cases hold that
waived arguments—waived in the technical sense of the
term—are subject to plain‐error review, they are incorrect.
Because Waldrip waived the but‐for causation argument
at the district court, he extinguished any error that might
have occurred, and we do not consider the merits of his ar‐
B. Constitutional Arguments
Waldrip also argues on appeal that § 841(b)(1)(C) is un‐
constitutionally vague and that his 280‐month sentence vio‐
lates the Eighth Amendment’s proportionality requirement.
Though these are different arguments than Waldrip made at
the district court, the government argues only that they are
forfeited. So even if Waldrip waived these arguments, the
government has waived any waiver defense that it had. Cos‐
tello v. Grundon, 651 F.3d 614, 641 (7th Cir. 2011). We thus
treat the arguments as forfeited and review for plain error.
As to Waldrip’s vagueness challenge to § 841(b)(1)(C), a
criminal statute violates the Fifth Amendment’s Due Process
Clause if it is “so vague that it fails to give ordinary people
fair notice of the conduct it punishes, or so standardless that
it invites arbitrary enforcement.”2 Johnson v. United States,
2 Waldrip did not argue in his first brief that § 841(b)(1)(C) is so stand‐
ardless that it invites arbitrary enforcement. At the district court,
Waldrip argued that his sentence violated the Equal Protection Clause.
Waldrip contended that he was charged because he was black while Wil‐
son got a deal to cooperate because he was white. The court rejected that
argument. In his reply brief, Waldrip attempted to reraise the equal‐
protection issue by intertwining it with a claim that the disparity in the
government’s treatment of him and Wilson showed that § 841(b)(1)(C) is
standardless and invites arbitrary enforcement. Arguments raised for the
135 S. Ct. 2551, 2556 (2015). The enhanced sentence under
§ 841(b)(1)(C) has two elements: first, a defendant must
knowingly or intentionally distribute a controlled substance,
§ 841(a)(1), and second, death must result from the use of
that controlled substance, § 841(b)(1)(C). Burrage, 134 S. Ct.
at 887. Waldrip argues that § 841(b)(1)(C) is unconstitutional‐
ly vague because it does not have a mens rea requirement for
the enhancement’s death‐results element. According to
Waldrip, without a knowing or intent requirement,
§ 841(b)(1)(C) does not put people on notice of what the
penalty will be for selling a controlled substance. In
Waldrip’s opinion, due process is satisfied only if the de‐
fendant knows or has reason to believe that death might re‐
sult from the use of the drugs sold.
Without question, the statute puts defendants on notice
of what the punishment is for the knowing or intentional
distribution of a controlled substance. Section 841(b)(1)(C)
“puts drug dealers and users on clear notice that their sen‐
tences will be enhanced if people die from using the drugs
they distribute.” United States v. Patterson, 38 F.3d 139, 145
(4th Cir. 1994). That the statute does not have a mens rea re‐
quirement for the death‐results element is of no conse‐
quence. Criminal statutes frequently punish defendants for
their action’s unintended consequences. “It is unusual to
first time in a reply brief are waived. Mendez v. Perla Dental, 646 F.3d 420,
423–24 (7th Cir. 2011). Moreover, Waldrip’s claim is meritless. In a sup‐
plemental filing, the government informed us that Waldrip was offered a
deal to cooperate and a fifteen‐year sentence without cooperation.
Waldrip rejected both offers.
impose criminal punishment for the consequences of purely
accidental conduct. But it is not unusual to punish individu‐
als for the unintended consequences of their unlawful acts.”
Dean v. United States, 556 U.S. 568, 575 (2009) (using the felo‐
ny‐murder rule as an example). Thus, § 841(b)(1)(C) is not
Finally, Waldrip argues that his sentence violates the
Eighth Amendment’s proportionality requirement. “Outside
the context of capital punishment, successful challenges to
the proportionality of particular sentences have been exceed‐
ingly rare.” Rummel v. Estelle, 445 U.S. 263, 272 (1980). In the
drug context, the Supreme Court has upheld a sentence of
life in prison without the possibility of parole for a first‐time
offender possessing 672 grams of cocaine, Harmelin v. Michi‐
gan, 501 U.S. 957 (1991), and consecutive twenty‐year terms
for possession of marijuana with the intent to distribute,
Hutto v. Davis, 454 U.S. 370 (1982). A 280‐month sentence for
selling heroin that causes death is not among the rare cases
“in which comparing the gravity of the offense to the harsh‐
ness of the sentence leads to an inference of gross dispropor‐
tionality.” United States v. Gross, 437 F.3d 691, 693 (7th Cir.
For those reasons, Waldrip’s conviction and sentence are
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