United States of America v. John M. Henigan

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 21-2649
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JOHN M. HENIGAN ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 19-cr-10021 — Joe Billy McDade, Judge.
____________________
A RGUED S EPTEMBER 7, 2022 — DECIDED O CTOBER 30, 2024
____________________
Before S YKES , Chief Judge, and HAMILTON and BRENNAN ,
Circuit Judges.
S YKES , Chief Judge. For years John Henigan bought large
quantities of heroin and cocaine in Chicago and sold the
drugs to his retail customers in and around Peoria, Illinois.
An investigation led to a series of controlled buys, which in
turn led to his indictment on three counts of heroin distribu-
tion. He pleaded guilty to all counts. As relevant conduct un-
der the Sentencing Guidelines, the presentence report

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2 No. 21-2649
included information about three overdose deaths linked to
heroin Henigan supplied.
Henigan objected, denying any connection to the deaths.
Based on his denial of relevant conduct, the probation officer
recommended against applying the offense-level reduction
for acceptance of responsibility under U.S.S.G. § 3E1.1. After
an evidentiary hearing, the district judge found insufficient
evidence to trace two of the overdose deaths to heroin Heni-
gan supplied. But the judge found him responsible for the re-
maining fatality—the overdose death of Seth Rhodes. Still, the
judge credited him for accepting responsibility and reduced
his offense level by two levels under § 3E1.1(a). The prosecu-
tor, however, declined to move for the additional one-level
reduction under § 3E1.1(b) because Henigan had falsely de-
nied relevant conduct. The judge imposed an above-guide-
lines sentence based on Henigan’s involvement in Rhodes’s
death.
Henigan challenges the prosecutor’s refusal to move for
the extra acceptance-of-responsibility credit. He claims that a
2013 amendment to the commentary to § 3E1.1 prohibits the
government from withholding the motion based on the de-
fendant’s sentencing objections. We recently addressed and
rejected this argument in United States v. Orona, No. 21-1734,
___ F.4th ___, 2024 WL 4355402 (7th Cir. Oct. 1, 2024). Henigan
also challenges the judge’s factual findings regarding
Rhodes’s death. We find no clear error. Finally, Henigan con-
tends that his sentence is procedurally and substantively
flawed because the judge did not accept his argument for a
lower sentence to compensate for the government’s refusal to
file a § 3E1.1(b) motion. This argument was waived; it is also
meritless. We affirm.

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No. 21-2649 3
I. Background
Between 2015 and June 2019, Henigan made weekly trips
to Chicago to buy large quantities of heroin and cocaine to sell
to his customers in Peoria and other locations in central Illi-
nois. After a string of heroin-overdose deaths in the area, local
law enforcement launched an investigation. Informants iden-
tified Henigan as the victims’ heroin source. With the assis-
tance of informants, officers conducted three controlled
heroin buys and arrested Henigan after the third. He gave a
detailed confession, admitting that since 2015 he had traveled
to Chicago on a weekly basis to buy supplies of heroin and
cocaine, returning to the Peoria area where he cut and sold the
drugs to numerous customers in several cities in the central
part of the state. He told the police that his earnings from his
drug business ranged from a low of $600 on a bad day to as
much as $1,700 on a good day.
The investigation was handed off to federal authorities,
and the government obtained an indictment charging Heni-
gan with three counts of heroin distribution in violation of
21 U.S.C. § 841(a)(1) and (b)(1)(C), one count for each con-
trolled buy. He eventually pleaded guilty to all three counts.
As relevant conduct, the presentence report included infor-
mation about three of Henigan’s customers who fatally over-
dosed on heroin he supplied. Specifically, the report
described the overdose deaths of Seth Rhodes, who died on
April 30, 2016; Joseph Mortimeyer, who was found dead on
September 24, 2016; and Jennifer Adolphson, who overdosed
on May 12, 2017, and died 12 days later.
Henigan objected and denied any connection to the three
overdose fatalities. He said he did not know Rhodes or Mor-
timeyer and never sold drugs to either of them. As for

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4 No. 21-2649
Adolphson, Henigan claimed that he last sold drugs to her in
March 2017, so he couldn’t be responsible for her overdose
death in May of that year. The probation officer considered
these objections frivolous based on Henigan’s earlier admis-
sions. And because he had falsely denied relevant conduct,
the final presentence report recommended against reducing
his offense level under § 3E1.1 for acceptance of responsibil-
ity. The presentence report also noted that an “upward depar-
ture” from the advisory guidelines imprisonment range
might be appropriate under § 5K2.1 because Henigan’s crim-
inal conduct had resulted in a death.
The judge held a two-day evidentiary hearing to address
Henigan’s objections. The government presented evidence
about the circumstances surrounding all three overdose
deaths. Only Seth Rhodes’s death is at issue here, so we limit
our account accordingly.
To prove that Henigan was the source of the heroin that
caused Rhodes’s death, the government presented testimony
from the case agent and Daniel O’Brien, one of Henigan’s reg-
ular crack-cocaine customers. O’Brien testified that he fre-
quently purchased crack cocaine from Henigan and first met
Seth Rhodes when they shared a cell in the Tazewell County
Jail. Rhodes was addicted to heroin and asked O’Brien if he
knew a heroin source in the area because his own sources had
cut him off. O’Brien was aware that Henigan sold heroin as
well as crack; he testified that he took Rhodes to buy heroin
from Henigan four or five times. The last time he did so was
on April 29, 2016, when he and Rhodes arranged to meet Hen-
igan to buy drugs—crack for himself and heroin and crack for
Rhodes.

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No. 21-2649 5
O’Brien testified that he and Rhodes met at around
4:30 p.m. on April 29 and drove to a Dunkin’ Donuts parking
lot, the designated place for the transaction with Henigan.
O’Brien brought cash for his crack purchase; Rhodes brought
cash to cover his purchase of both heroin and crack. When
they arrived at the meeting place, O’Brien got out of the car,
entered Henigan’s vehicle, paid for the crack and heroin, and
returned with the drugs to the car where Rhodes was waiting.
O’Brien and Rhodes then left the Dunkin’ Donuts parking lot
and drove to another location where they smoked crack to-
gether. Afterward, they parted company and Rhodes left
“with his heroin in his pocket.”
Later that night Rhodes messaged O’Brien on Facebook
that the heroin was “really good stuff.” At around 7:30 p.m.
the next day, Rhodes’s mother and stepfather found him dead
in his bedroom in the basement of their home. They called
911, and Seth’s mother told the responding officers that she
had last spoken with her son around 11:30 p.m. the night be-
fore. His stepfather said he heard Seth moving around in the
home in the overnight hours between 1:00 and 3:00 a.m. They
told the officers that Seth was a heroin addict and typically
stayed up all night and slept most of the day. When they
checked on him at around 7:30 p.m. on April 30, he was dead
and cold to the touch.
In Rhodes’s bedroom officers discovered various items of
drug paraphernalia, small amounts of drug residue, 0.2 grams
of heroin, and synthetic marijuana. An autopsy confirmed
that Rhodes died from heroin and cocaine intoxication.
In a written order following the hearing, the judge found
that the government had not established that Henigan sup-
plied the drugs that caused the deaths of Mortimeyer and

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6 No. 21-2649
Adolphson. As for Rhodes, the judge found the evidence suf-
ficient to establish that Henigan supplied the heroin that con-
tributed to Rhodes’s overdose death. But the judge ultimately
held that the government had not shown that “the heroin by
itself was the ‘but-for’ cause of death.” Accordingly, the judge
disagreed with the probation officer’s recommendation to
deny acceptance-of-responsibility credit. He indicated in-
stead that he would apply the two-level offense-level reduc-
tion under § 3E1.1(a).
The government moved for reconsideration on the issue of
Rhodes’s death. The judge reconsidered and reversed his cau-
sation finding. He reiterated his previous finding that Heni-
gan had furnished the heroin that contributed to Rhodes’s
death. This time, however, he agreed with the government
that Rhodes’s death should be counted as relevant conduct
because Henigan supplied both the heroin and the cocaine
that combined to cause the overdose death.
For reasons that are not entirely clear, the judge’s recon-
sideration decision did not prompt a change in his earlier rul-
ing on credit for acceptance of responsibility. After finding
Henigan responsible for Rhodes’s death, the judge indicated
that he would not deviate from his prior plan to award the
two-level reduction under § 3E1.1(a). He did say, however,
that he would consider Henigan’s culpability for Rhodes’s
overdose death when making his ultimate sentencing deci-
sion.
At sentencing the judge followed through on his plan to
credit Henigan with acceptance of responsibility: he reduced
Henigan’s offense level by two levels under § 3E1.1(a). A third
offense-level reduction is possible under § 3E1.1(b), but it re-
quires a motion from the government. The prosecutor

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No. 21-2649 7
declined to move for the extra one-point reduction under
§ 3E1.1(b) based on Henigan’s false denial of relevant con-
duct. The judge calculated an advisory guidelines imprison-
ment range of 92 to 115 months.
Henigan’s attorney asked the judge “to consider taking
eight months off” her client’s sentence because the govern-
ment did not “give him that third point” for acceptance of re-
sponsibility. She conceded, however, that “it’s up to the
government” to decide whether to move for the additional of-
fense-level reduction under § 3E1.1(b). After the attorneys
completed their sentencing arguments, Henigan read from a
letter he had written to the court, and the judge then moved
to his evaluation of the nature of the crimes and Henigan’s
history, as required by 18 U.S.C. § 3553(a). The judge at length
addressed Henigan’s background and characteristics and de-
scribed the seriousness of his drug-trafficking activity and its
effect on the community. He emphasized that Henigan was
“selling an illegal product that kills people.” At the end of this
explanation, the judge imposed an above-guidelines sentence
of 158 months in prison.
With a prompt from the prosecutor, the judge confirmed
that the sentence “included a variance” of 43 months under
U.S.S.G. § 5K2.1 because Henigan’s criminal conduct had re-
sulted in a death. The judge then asked Henigan’s attorney if
he had addressed all arguments in mitigation. She responded
by suggesting that the judge might not have been entirely
clear about whether he had found Henigan responsible for
just one overdose death or more. The judge clarified that he
found Henigan responsible for just Rhodes’s death, not the
others, as he had explained in his previous order. Before

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8 No. 21-2649
concluding, the judge invited further questions; the attorneys
had none.
II. Discussion
Henigan’s first argument on appeal is that the government
unlawfully withheld the motion for the extra offense-level re-
duction for acceptance of responsibility under § 3E1.1(b). This
claim is new on appeal; Henigan did not object to the govern-
ment’s decision below. Quite the contrary. As noted above,
Henigan’s attorney conceded that the third acceptance-of-re-
sponsibility point is “up to the government.”
That looks like a waiver, but the government has not
pressed the point. Even if not waived, the argument was at a
minimum forfeited—as the government maintains—so our
review is constrained by the plain-error standard. Ultimately,
however, the standard of review does not matter. Our recent
decision in Orona conclusively resolves the issue against Hen-
igan’s position.
The extra acceptance-of-responsibility credit is expressly
conditioned on a motion from the government stating that the
defendant has
assisted authorities in the investigation or pros-
ecution of his own misconduct by timely notify-
ing authorities of his intention to enter a plea of
guilty, thereby permitting the government to avoid
preparing for trial and permitting the government
and the court to allocate their resources efficiently.
U.S.S.G. § 3E1.1(b) (emphasis added). Like Lafiamma Orona
before him, Henigan argues that Amendment 775—the Sen-
tencing Commission’s November 2013 amendment to the
commentary to § 3E1.1—limited the government’s discretion

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No. 21-2649 9
under subsection (b) to considerations related to saving trial
resources.
More specifically, Henigan argues that Amendment 775
had the effect of barring the government from withholding a
§ 3E1.1(b) motion based on considerations related to sentenc-
ing resources. In the typical case, the issue arises when the
prosecutor refuses to move for the § 3E1.1(b) reduction based
on the defendant’s false objection to relevant conduct or some
other guidelines factor, requiring the government and the
court to allocate resources to addressing and resolving the ob-
jection. That’s the context in which the issue arises here.
Our recent decision in Orona addressed and rejected Hen-
igan’s argument. Orona reaffirmed earlier circuit precedent
holding that the government’s § 3E1.1(b) discretion is very
broad and includes the discretion to withhold a motion for the
extra offense-level reduction based on a defendant’s false or
frivolous objection to relevant conduct or some other guide-
lines sentencing factor. Orona, 2024 WL 4355402, at *5–9 (reaf-
firming United States v. Nurek, 578 F.3d 618 (7th Cir. 2009), and
United States v. Sainz-Preciado, 566 F.3d 708 (7th Cir. 2009)). We
addressed the history of § 3E1.1(b) and Amendment 775 at
length in Orona and concluded that the amendment did not
abrogate our circuit precedent. Id. at *8–9. There’s no need to
repeat our full reasoning here. Henigan’s argument is fore-
closed by Orona.
Henigan next challenges the judge’s ruling finding him re-
sponsible for Rhodes’s death, which formed the basis for the
judge’s decision to impose an above-guidelines sentence. Fac-
tual findings at sentencing are reviewed for clear error. United
States v. Ranjel, 872 F.3d 815, 818 (7th Cir. 2017). Under this
deferential standard, we will reverse “only if after reviewing

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10 No. 21-2649
the entire record, we are left with the firm and definite con-
viction that a mistake has been made.” Id. (quotation marks
omitted). When “two possible conclusions can be drawn from
the evidence, then the choice between them cannot be clearly
erroneous.” United States v. Major, 33 F.4th 370, 379 (7th Cir.
2022) (quotation marks omitted).
Henigan argues that the only reasonable inference from
the circumstances of Rhodes’s death is that he overdosed on
drugs obtained from some other source. As Henigan views
the evidence, the timeline simply doesn’t add up. Recall the
particulars of O’Brien’s testimony: he and Rhodes met at
4:30 p.m. on April 29, drove to the Dunkin’ Donuts parking
lot where they bought crack and heroin from Henigan, then
drove to another location where they smoked crack together.
Afterward, Rhodes left with his heroin. Sometime later that
night, Rhodes messaged O’Brien that the heroin was “really
good stuff.” Rhodes’s mother saw him alive at around
11:30 p.m., and his stepfather heard him moving around the
house during the overnight hours, perhaps as late as 3:00 a.m.
More than 16 hours later, at around 7:30 p.m. on April 30,
Rhodes’s mother and stepfather found him dead in his bed-
room, cold to the touch. This gap in time, Henigan insists,
leads to an inescapable conclusion: Rhodes obtained more
heroin from another dealer sometime on April 30, and the
other dealer’s drugs caused his death.
The gap in time leaves room for that theory, but it’s highly
speculative; no other evidence supports it. Indeed, O’Brien’s
testimony undermines it: he testified that Rhodes had no
other sources of heroin, which is why he connected him with
Henigan as his heroin source.

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No. 21-2649 11
Viewed as a whole, the evidence supports the judge’s find-
ing that Rhodes’s death, which occurred at an unknown time
sometime after 3 a.m. on April 30, was caused by the drugs he
obtained from Henigan late in the afternoon on April 29. Hen-
igan’s time-gap theory does “not overcome the bulk of the ev-
idence” pointing to Henigan as the source of the drugs that
caused Rhodes’s death. United States v. Garcia, 948 F.3d 789,
807 (7th Cir. 2020). We find no clear error.
As his final claim of error, Henigan challenges the judge’s
failure to accept his suggestion to “tak[e] eight months off”
the sentence to account for the government’s refusal to move
for the extra offense-level reduction under § 3E1.1(b). He
frames this as both a procedural and a substantive challenge.
If the former, we review the claim de novo. United States v.
Kuczora, 910 F.3d 904, 907 (7th Cir. 2018). If the latter, we re-
view the claim for abuse of discretion. Id. at 909.
Beginning with the procedural framing, Henigan faults
the judge for not explicitly addressing his suggestion to shave
eight months off the sentence to compensate for the govern-
ment’s withholding of the § 3E1.1(b) motion. This argument
is waived. At the end of the sentencing hearing, the judge
asked whether he had adequately addressed Henigan’s main
arguments in mitigation. In reply, Henigan’s attorney asked
the judge to clarify his ruling on the overdose deaths—specif-
ically, whether he had found Henigan responsible for Rhodes
death alone or also the two others identified in the presen-
tence report. She did not ask the judge to explain why he had
rejected the request to reduce the sentence based on the gov-
ernment’s § 3E1.1(b) decision.
So the judge expressly invited Henigan to identify any
mitigation arguments that were overlooked or needed

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12 No. 21-2649
clarification. Though his counsel raised another issue, she did
not ask the judge to explain his reason for rejecting the argu-
ment about an eight-month sentence reduction. Accordingly,
Henigan cannot now object to the lack of explanation. United
States v. Brown, 932 F.3d 1011, 1019–20 (7th Cir. 2019). When a
defendant “passe[s] up the chance for elaboration,” he cannot
argue on appeal “that the court’s explanation was inade-
quate.” United States v. Maxfield, 812 F.3d 1127, 1130 (7th Cir.
2016).
Alternatively, Henigan argues that his sentence is substan-
tively unreasonable because the judge did not reduce it by an
amount of time commensurate with the loss of the extra credit
for acceptance of responsibility under § 3E1.1(b). Waiver ap-
plies here too, but the substantive variant of this claim is also
meritless. As we’ve explained, in Orona we reaffirmed our cir-
cuit precedent that the government has broad discretion un-
der § 3E1.1(b) and may withhold the motion for the extra
acceptance-of-responsibility point based on a defendant’s
false or frivolous sentencing objections. 2024 WL 4355402, at
*5–9. The government’s exercise of its § 3E1.1(b) discretion
has no bearing on the reasonableness of the sentence the judge
imposed.
A FFIRMED

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