Richard Ashbaugh


County of Conviction: Northern District of WV (Federal)
Convicted of: Aiding and Abetting the Distribution of Heroin Resulting in Death
Sentence: 20 years
Time Served: 12 years
WVIP Involvement: Client

           Mr. Ashbaugh was sentenced to the mandatory minimum of twenty years in prison for Aiding and Abetting the Distribution of Heroin Resulting in Death. 21 U.S.C. § 841(b)(1)(C) imposes a mandatory minimum sentence of twenty years if a defendant distributes or shares a controlled substance, such as heroin, and its use results in death or serious bodily injury.

          However, pursuant to a 2014 Supreme Court decision, Burrage v. United States, 134 S.Ct. 881, a defendant cannot be liable under the penalty enhancement provision of § 841(b)(1)(C) unless the controlled substance was the but-for cause of death or injury. In Mr. Ashbaugh’s case, the toxicology report stated the decedent died “as a result of combined cocaine, heroin, phencyclidine, alprazolam and diazepam intoxication.” It is undisputed that no evidence was offered to prove that the decedent would not have died but-for sharing heroin with Mr. Ashbaugh.

          Mr. Ashbaugh was previously a client for the Clemency Project 2014 initiative to reduce disparities in drug sentencing.  His drug-induced homicide conviction stems from sharing and consuming a packet of heroin with three other people, one of whom overdosed.  The statute does not require that the government prove any intent on behalf of Mr. Ashbaugh to contribute to the death of his friend; he had none.  Drug-induced homicide is known as a “strict liability” offense where no intent is required, just the sharing of a drug. Mr. Ashbaugh’s sentence, however, is unlawful.

          The WVIP filed an Unopposed Motion for an Amended Sentence, which was joined by the U.S. Attorney’s Office for the Northern District of West Virginia – a unique occurrence. The U.S. District Court for the Northern District of West Virginia denied Mr. Ashbaugh’s Unopposed Motion.  The WVIP is currently appealing this decision to the U.S. Court of Appeals for the Fourth Circuit.