United States of America v. Armando Angel Cheshier

United States Court of Appeals
For the Eighth Circuit
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No. 24-1597
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United States of America
Plaintiff - Appellee
v.
Armando Angel Cheshier
Defendant - Appellant
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Appeal from United States District Court
for the District of South Dakota - Southern
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Submitted: February 13, 2025
Filed: April 10, 2025
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Before COLLOTON, Chief Judge, BENTON and STRAS, Circuit Judges.
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BENTON, Circuit Judge.
Armando Angel Cheshier was convicted of distribution of a controlled
substance resulting in serious bodily injury (Count 1) and possession of a controlled
substance with intent to distribute (Counts 2 and 3), in violation of 21 U.S.C.

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§§ 841(a)(1) and 841(b)(1)(C). The district court1 sentenced him to 252 months on
Count 1, 240 months on Count 2, and 240 months on Count 3, to run concurrently.
He appeals his conviction. Having jurisdiction under 28 U.S.C. § 1291, this court
affirms.
I.
Cheshier argues the district court erred in rejecting his guilty plea. Because
he did not object in the district court, this court reviews for plain error. United States
v. Williams, 557 F.3d 556, 559 (8th Cir. 2009). Under plain-error review, “the party
seeking relief must show that there was an error that is clear or obvious under current
law, that affected the party’s substantial rights, and that seriously affects the fairness,
integrity, or public reputation of the judicial proceedings.” United States v. Ruzicka,
988 F.3d 997, 1008 (8th Cir. 2021) (internal quotation marks omitted).
“There is ‘no absolute right to have a guilty plea accepted’ and a district court
‘may reject a plea in exercise of sound judicial discretion.’” United States v. Brown,
331 F.3d 591, 594 (8th Cir. 2003), quoting Santobello v. New York, 404 U.S. 257,
262 (1971). “The discretion to reject a tendered guilty plea is most often exercised
when the defendant cannot or will not provide the adequate factual basis for the
plea.” United States v. Carnahan, 684 F.3d 732, 737 (8th Cir. 2012). “A factual
basis for a plea of guilty is established when the court determines there is sufficient
evidence at the time of the plea upon which the court may reasonably determine that
the defendant likely committed the offense.” Williams, 557 F.3d at 560 (internal
quotation marks omitted).
1 The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota.

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In August 2023, Cheshier attempted to plead guilty to Count 1 of the
indictment:
On or about September 29, 2021, in the District of South Dakota the
Defendant, Armando Angel Cheshier, did knowingly and intentionally
distribute fentanyl, a Schedule II controlled substance, and the
distribution of said fentanyl resulted in the death of Victim # 1, whose
identity is known to the Grand Jury, in violation of 21 U.S.C. §§
841(a)(1), 841(b)(1)(C).
At the plea hearing, the court questioned him about the factual basis for his
plea:
The Defendant: Yeah, I didn’t intentionally distribute fentanyl. I didn’t
distribute fentanyl, period.
The Court: Did you transfer the fentanyl to someone else?
The Defendant: No.
The Court: Did you attempt to transfer it to someone else?
The Defendant: No.
The Court: So I’m looking at the factual basis statement, and it says
“My name is Armando Angel Cheshier. On or about September 29th,
2021, in the District of South Dakota, I knowingly and intentionally
attempted to transfer alprazolam, a Schedule IV controlled substance,
to [Victim 1], which was included in my baggie. Also included in that
baggie were tablets containing fentanyl.”
So are you saying you didn’t intentionally give the baggie to [Victim
1]?
The Defendant: I didn’t give her anything. I had a baggie on my bed,
and I suggested she take an alprazolam pill out of my bag, and she took
fentanyl and alprazolam. I know she’s not a fentanyl user—she’s a
meth user—and so I suggested she take alprazolam. I didn’t hand-to-

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hand transfer anything. There was a pill bag on the bed that was my
pills. I take responsibility for them being my pills.
The Court: So what you’re telling me is that you had a bag of pills
laying on the bed. You told her to take a pill out of there.
The Defendant: An alprazolam. I suggested she take an alprazolam.
That’s, like, why I’m having the hardest time with this because I didn’t
intentionally distribute fentanyl. And I know she’s not a fentanyl user.
The Court: Counsel, it doesn’t sound like he’s going to plead guilty.
The Defendant: No, I’m going to plead guilty if you accept my factual
basis. I just—this has been a whole 14 months of me trying to tell
myself that I distributed fentanyl to her. I had possession of fentanyl
with maybe the intent to distribute.
Because Cheshier explicitly denied distributing fentanyl to Victim 1, the district
court did not plainly err in rejecting his guilty plea.
II.
Cheshier asserts the court erred in instructing the jury on intentional
distribution of a controlled substance. This court reviews “challenges to jury
instructions under a deferential abuse of discretion standard.” United States v.
Wilkins, 25 F.4th 596, 600 (8th Cir. 2022). There will be no error “when the jury
instruction fairly and adequately submitted the issue to the jury.” Id.
To convict for distribution of a controlled substance resulting in death or
serious bodily injury, the government must prove that: “(1) the defendant knowingly
or intentionally distributed a drug; and (2) the victim died or sustained a serious
bodily injury caused by the use of the drug.” United States v. Moore, 71 F.4th 678,
690 (8th Cir. 2023) (defining the elements of “distribution of fentanyl resulting in
death”). See 21 U.S.C. § 841(a)(1) (stating that it is illegal for anyone to “knowingly
or intentionally” “manufacture, distribute, or dispense, or possess with intent to

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manufacture, distribute, or dispense, a controlled substance”); 21 U.S.C.
§ 841(b)(1)(C) (providing enhanced penalties “if death or serious bodily injury
results from the use” of the controlled substance); Burrage v. United States, 571
U.S. 204, 210 (2014) (holding that the crime of distributing heroin in violation of §
841(a)(1) “has two principal elements: (i) knowing or intentional distribution of
heroin . . . and (ii) death caused by (“resulting from”) the use of that drug”).
At trial, the court instructed the jury:
For you to find Armando Angel Cheshier guilty of the offense of
distribution of fentanyl resulting in death as charged in Count 1 of the
Indictment, the prosecution must prove the following three essential
elements beyond a reasonable doubt:
One, that on or about September 29, 2021, Cheshier
knowingly or intentionally transferred fentanyl to Victim #1;
Cheshier believes the court erred in declining his instruction: “If you believe it is
possible that [Redacted Name] took fentanyl pills from the Defendant without the
Defendant intentionally distributing them to her, you must find the Defendant not
guilty.” The district court determined this instruction inaccurately stated the burden
of proof. Additionally, it omitted the knowingly language from 21 U.S.C.
§ 841(a)(1), Burrage, and Moore.
The district court’s instruction was a correct statement of the law. See United
States v. Cooper, 990 F.3d at 581-82 (holding that to “sustain a conviction under 21
U.S.C. § 841(a)(1), with a serious bodily injury enhancement under 21 U.S.C.
§ 841(b)(1)(C),” the government must prove the defendant “knowingly or
intentionally” distributed a controlled substance and that serious bodily injury
resulted from the use of that substance). The district court did not abuse its discretion
in instructing the jury.

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III.
Cheshier believes the government failed to prove beyond a reasonable doubt
that he knowingly or intentionally distributed fentanyl. This court reviews the
sufficiency of the evidence de novo, viewing the evidence most favorably to the
verdict. United States v. Spears, 454 F.3d 830, 832 (8th Cir. 2006). Reversal is
warranted only if “no reasonable jury could find the defendant guilty beyond a
reasonable doubt.” Id. This court does not “weigh the evidence or assess the
credibility of the witnesses.” United States v. Lundstrom, 880 F.3d 423, 436 (8th
Cir. 2018).
There was sufficient evidence for the jury to reasonably conclude that
Cheshier knowingly or intentionally distributed fentanyl to Victim 1. The jury heard
evidence from Cheshier’s 911 call that Victim 1 grabbed Xanax and fentanyl from
his hand and ingested them. The jury also saw body camera video from two
responding officers and an investigating officer where Cheshier stated that he
suggested to Victim 1 that they do drugs, that he offered her pills from his bag of
Xanax and fentanyl, that she grabbed them from him, and that she took too many.
Text messages from a few days before Victim 1’s death show Cheshier and Victim
1 discussing distributing fentanyl and Xanax. Based on these facts, a reasonable
juror could find that Cheshier knowingly or intentionally transferred fentanyl to
Victim 1.
The evidence also showed that Victim 1’s death resulted from the fentanyl she
received from Cheshier. See 21 U.S.C. § 841(b)(1)(C) (providing enhanced
penalties “if death or serious bodily injury results” from the use of a controlled
substance that has been unlawfully distributed by the defendant). The statutory
enhancement may be proved either by “but-for” causation or if the drug use is an
independently sufficient cause of death. United States v. Lewis, 895 F.3d 1004,
1010 (8th Cir. 2018).

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Dr. Kenneth Snell, a forensic pathologist and the coroner, testified that the
fentanyl in Victim 1’s system was “in and of itself” fatal. He also testified that based
on Victim 1’s prior history of meth usage and the lack of evidence of her meth use
between midnight and 3 a.m., she could have survived the meth in her system, but
not the fentanyl. He said that “there’s no indication that we could say today she
would be dead had it not been for her taking those fentanyl pills.” This testimony
was sufficient to show that the fentanyl Victim 1 obtained from Cheshier was
independently sufficient to kill her. See United States v. Broeker, 27 F.4th 1331,
1335-36 (8th Cir. 2022) (upholding conviction for distribution of fentanyl resulting
in death based in part on the forensic toxicologist’s testimony that despite multiple
drugs in the victim’s system at death, the amount of fentanyl could have “by itself,
caused his death”).
Cheshier argues the evidence does not show that the fentanyl alone caused
Victim 1’s death. But this is not required. In Seals, this court addressed a similar
argument. See United States v. Seals, 915 F.3d 1203, 1206 (8th Cir. 2019). There,
the victim collapsed about seven minutes after ingesting fentanyl. Id. at 1205. Post-
mortem blood tests showed the victim had morphine, codeine, fentanyl, and acetyl-
fentanyl in his system. Id. at 1204–05. Experts testified that they could not
determine which drug caused the overdose. Id. at 1205. The defense argued the
government had to exclude the possibility that a different drug was an independently
sufficient cause of the overdose. Id. at 1205–1206. This court disagreed, stating
that although “the evidence must be consistent with guilt, it need not be inconsistent
with every other reasonable hypothesis.” Id. at 1205. The determination of whether
the different drugs present in the victim’s blood were independently sufficient to
cause the overdose or were the “but-for” cause of the overdose was a factual decision
for the jury. Here, Dr. Snell testified that the fentanyl in Victim 1’s system alone
was enough to kill her, and that she could have lived but for ingestion of it.

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This evidence, viewed most favorably to the verdict, was sufficient for a
reasonable juror to conclude that Victim 1’s death resulted from Cheshier’s knowing
or intentional transfer of fentanyl to her.
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The judgment is affirmed.
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