Life in prison, even if your drugs were stolen

By David Oscar Markus

Yesterday, the 11th Circuit affirmed two concurrent life sentences for Lebarron under the death-results enhancement in 21 U.S.C. 841(b)(1)(C). United States v. Lebarron, No. 21-12157 (11th Cir. June 8, 2026). The panel was Rosenbaum, Abudu, and Tjoflat. The lineup is the interesting part.

Judge Abudu wrote the majority. Then Judge Abudu wrote a concurrence, joined by Judge Rosenbaum, requesting the full court to take the case en banc and undo what the majority just did. Judge Tjoflat dissented, with a persuasive opinion.

Lebarron ran a drug house. J.B. was one of his sellers and an addict. The government's theory was that she went into the bedroom where the drugs were kept, came out with narcotics, shot up in the living room, and died. Lebarron wanted to tell the jury one thing. He didn't give her the drugs. She stole them. The district court said no. Possess with intent, somebody steals them and dies, you're still guilty.

So the jury answered two questions. Did Lebarron possess with intent to distribute? Was that the but-for cause of death? Two yeses, and a man goes away forever. No proximate cause. No intervening cause. No scienter as to the death. 

The majority says:

In short, subsection 841(b)(1)(C) is triggered once there is any substantive violation of subsection 841(a), including the possession of a controlled substance with the intent to distribute, that results in serious bodily harm or death.

The government never had to prove Lebarron handed these drugs to anyone, or even put them into the stream of commerce. The opinion calls that irrelevant.

But Judge Abudu, joined by Rosenbaum, also concurs and says that the result isn't just:

Although the majority opinion, given our precedent, is the correct one today, it is not the just one. While a dissent in this case is not in order, a reconsideration of Webb is more than ripe.

Tjoflat dissents: 

Should a man spend the rest of his life in prison because his drugs were stolen? According to the Majority, Congress would have it no other way, and our hands are tied. I disagree.

He gives the following hypo: John Doe gets hooked on pain pills after knee surgery. He keeps his stash in a safe by the bed. Burglars drill the safe, take the pills, and one of them overdoses and dies. Charge Doe with possession with intent, attach the enhancement, and under today's rule the judge can't even let him tell the jury his safe was robbed. Life sentence. Whether the judge likes it or not.

Watch for an en banc vote.