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December 8, 2010

A Harris test case?: Seventh Circuit affirms extraordinary sentencing factor enhancement

Among the many "quirks" in the modern Apprendi/Blakely Sixth Amendment jurisprudence from the Supreme Court is the Harris mandatory minimum exception to the rule requiring jury findings of important sentence-enhancing facts. This "quirk" in on full display in the Seventh Circuit's fascinating ruling today in US v. Krieger, No. 09-1333 (7th Cir. Dec. 7, 2010) (available here), in which a panel affirms a 20-year mandatory minimum sentence based on judicial fact-finding about the defendant's drug crime resulting in a friend's death.

The panel decision in Krieger has too many interesting and notable facets to summarize in one post.  So I will just quote from one part of the opinion which spotlights why this is a possible test case for the Supreme Court to perhaps reconsider the logic and persistence of Harris:

Krieger’s pre-sentencing report set forth a recommended sentencing range of ten to sixteen months. The government filed objections, arguing that the court should find that Curry’s death resulted from Krieger’s distribution of fentanyl, thus triggering a mandatory minimum sentence of twenty years under 21 U.S.C. § 841(b)(1)(C)....

On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry....  In view of the conflicting evidence as to the cause of Curry’s death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense.  The court was persuaded, however, that a preponderance of the evidence established fentanyl as the cause of Curry’s death, and concluded that “the Government has established that it is more probable than not that Ms. Krieger’s distribution of fentanyl to Ms. Curry resulted in Ms. Curry’s death.” (R. at 154, p.8).

Once the court made the finding, by a preponderance of the evidence, that death resulted, it concluded that it was obligated to impose the mandatory statutory minimum under § 841(b)(1)(C) “if death results” — twenty years....

The outcome in this case highlights the critical nature of the distinction between sentencing factors and elements.  In this case, without death resulting, the maximum penalty for distributing small amounts of fentanyl would have been twenty years, with no minimum penalty. 21 U.S.C. § 841 (b)(1)(C) (“In the case of a controlled substance in schedule I or II . . . such person shall be sentenced to a term of imprisonment of not more than 20 years.”).  In cases where death results from the distribution, the sentence increases to a minimum of twenty years and a maximum of life in prison. Id.  Once a court makes a finding that triggers a mandatory minimum sentence, it has no choice but to impose that sentence.

December 8, 2010 at 12:03 AM | Permalink

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Comments

"It has no choice but to impose that sentence" of 20 years.

That's precisely why it should be an element.

On the issue of whether Harris should be re-visited, note Breyer's comment at the Pepper oral argument saying: "As much as I dissented in Apprendi, I think that one probably does violate Apprendi. And I think I have to stick up for that, don't I?" If Breyer decides to "stick up" for Apprendi, then he no longer concurs with Harris's result and Harris has a different outcome.

Further, there may be an as applied tail-wag-the-dog argument here that, absent the finding, the 20 year sentence would have been substantively unreasonable, thereby making it a fact necessary to support the sentence, thereby transforming it into an element.

Finally, it's interesting to point out that had the mandatory minimum been one day longer (20 years and 1 day or "greater than 20 years", instead of 20 years), it would have then been an element.

Posted by: DEJ | Dec 8, 2010 1:54:57 AM

from where i sit this retard judge and the criminal DA are bigger criminals then he is!

"On January 16, 2009, the district court issued its order, finding, by a preponderance of the evidence, that the fentanyl supplied by Krieger resulted in the death of Curry.... In view of the conflicting evidence as to the cause of Curry’s death, the court concluded that the government would not have been able to prove, beyond a reasonable doubt, that Krieger’s distribution of fentanyl was the cause of Curry’s death, had Krieger been charged with that offense."

anything involving the death should have ended once this paragraph was read. Sorry in this country under our CONSTUTION to convict someone for a crime they HAVEN'T EVEN BEEN CHARGED with let alone FRIGGIN CONVICTED is in fact a BIGGER CRIME then the uncharged one!

It could in fact be considered TREASON since it's done by individuals who have taken an OATH to uphold the constution.

Posted by: rodsmith | Dec 8, 2010 10:19:56 AM

I agree with Rodsmith....Das and judges exceed their authority in the federal system constantly. So much, that gross draconian sentences are a daily occurance....They are unchecked and have unlimited freedom with broad sweeping guidelines.
For instance, potential for serious physical harm.
CAreer Offender VS OWI....Don't forget Begay...not returning to a halfway house, same deal...The feds need to have the guidelines stuffed where the sun doesn't shine..

Posted by: Abe | Dec 8, 2010 10:43:42 AM

I don't see how this implicates Harris at all. Perhaps you could explain how you think it does. I think this may well highlight other problems but I would say the prior conviction exception is on solid ground. The only reason for the prior conviction exception (that I see) is that so conduct that has already been proven BRD does not need to be proven again. This situation is entirely different in that there is no conviction.

I am not familar enough with the cases distinguishing elements of crimes and sentencing factors related to those crimes to hazard a guess as to whether this case came out right.

Posted by: Soronel Haetir | Dec 8, 2010 11:17:18 AM

This is the perfect test case for the continued viability of Harris.

Posted by: lawyer | Dec 8, 2010 11:36:08 AM

Soronel, Harris has nothing to do with the prior conviction exception. Almendarez-Torres is the prior conviction exception case. Harris, on the other hand, holds that facts establishing a mandatory minimum penalty are not elements and do not need to be proven BRD. That holding is clearly implicated by this case. How is it not?

Posted by: DEJ | Dec 8, 2010 12:32:31 PM

hmm

"I don't see how this implicates Harris at all. Perhaps you could explain how you think it does. I think this may well highlight other problems but I would say the prior conviction exception is on solid ground. The only reason for the prior conviction exception (that I see) is that so conduct that has already been proven BRD does not need to be proven again. This situation is entirely different in that there is no conviction.

I am not familar enough with the cases distinguishing elements of crimes and sentencing factors related to those crimes to hazard a guess as to whether this case came out right.

Posted by: Soronel Haetir | Dec 8, 2010 11:17:18 AM"

and JUST what prior conviction are you talking about. The only one i see here is the one where the defendant took a plea on this charge that did NOT include admitting to killing anyone.

if that is the only conviction this fails on the double jeopury basis. this is part of the same ORIGINAL crime and charge and CONVICTION. IF the state though it had a case should have charged it with the rest and brought it to trial. This kind of criminal action just shows they KNOW THEY HAD NO CASE and the only way to get hm was to bring it in though the ILLEGAL BACK DOOR with the judges blessing.

Posted by: rodsmith | Dec 8, 2010 1:10:06 PM

From reading the case, Rovner writes that the statutory maximum for the offense that the DF pleaded to (distribution) was exactly the same as the statutory minimum that could be imposed upon the judge finding that death resulted from the baseline offense.

My question is where is the statutory maximum defined for the base offense of distribution of fentanyl? In other words, what are the min/max for that baseline offense? If the PSR recommended a 10-16 month term is there a statutory minimum?

Thanks.

Posted by: Fed Crim Pro Law Student | Dec 8, 2010 2:37:35 PM

DEJ,

Thanks, obviously I had gotten myself mixed up there.

Posted by: Soronel Haetir | Dec 8, 2010 3:29:38 PM

Also, as a random aside, Soronel, you're also confused about the prior-conviction exception. The fact that doesn't need to be proven is the "fact" of conviction. Not the underlying conduct. Lets assume a drug felony prior conviction increases the statutory maximum sentence by ten years. The issue isn't whether the defendant sold drugs on x date -- those facts have already been prove beyond a reasonable doubt, as you note. The issue is whether the government has established that the defendant was in fact the one who was convicted of a crime. For example, the defendant might argue that the individual previously convicted was not him -- that the records of conviction don't establish what exactly he was convicted of, etc. Or he might contend that he was convicted of a different provision than the government claims.

Posted by: anon | Dec 8, 2010 4:09:53 PM

What about this scenario? Defendant is accused by 15 year old girl of sex crimes, which she says occured in two counties. One occured in present county, and others in county where they previously lived. Both counties file charges. Two trial dates are set. There is no physical evidence or other evidence. DA from present county extracts a no contest plea agreement to 2 charges. The second county, due to weakness of girl's memory, dismisses charges in the second county. The DA in present county, renigs on the agreed upon plea deal the day of the plea hearing. She convinces the defendant's attorney that defendant's second charge should have the Persistant Sexual Offender classification put on it. Defendant had one old juvenile charge as a 14 year old. That old adjudication was used to enhance criminal history on the first charge, and the PSO classification used to double the sentence on the 2nd charge. Defendant got 24 years. Defendant's public appelent attorney didn't even read the case and didn't mention the issue on appeal. A second attorney filed "Motion to Correct Illegal Sentence" based on the fact that the old juvenile adjudication cannot be used in two ways on two different charges. The state filed a "Response to Motion to Correct" which told the judge, "This defendant was charged of crimes in another county, but those charges were dismissed." The PSI reporter also included a narrative from the accuser in the PSI report, stating that defendant had commited crimes in two counties. Both of these sources of information were not facts proven to the judge. Is it legal for the judge to use these sources?

Posted by: DLJ | Dec 8, 2010 7:43:55 PM

In reading the case I was looking for how the court would deal with the fact that death resulting increases both the minimum and the maximum under the statute. This is a structure that indicates the fact is an element. In Harris the maximum did not go up. By circuit court law, 924(c) has a life maximum. I haven't thought this all the way through yet and the decision makes no mention of it.

Posted by: will | Dec 9, 2010 12:41:05 PM

Actually, the "death resulting" did not increase the statutory maximum. It resulted in the mandatory minimum and the statutory maximum contracting into a single point - 20 years. So, Apprendi was not implicated. But the reasoning in Harris is called into question.

Posted by: KMB | Dec 9, 2010 1:34:20 PM

kmb:
My question involved how to interpret whether the death resulting language in 21 usc 841(b)(1)(C) is an element (has to be pled and proven) or a sentencing factor (found by judge by a preponderance). The test is: "the court must evaluate (1) the language and structure of the statute, (2) tradition, (3) the risk of unfairness, (4) the severity of the sentence, and (5) any legislative history." What I was interested in seeing involved the first part of the test, the language and structure of the statute. In Harris the statute had a maximum of life. The brandishing language did not increase the maximum under the structure of the statute. On the other hand the structure of 841(b)(1)(C) couples the death results language with both a mandatory minimum and an increase in the maximum. The death results language under this view is not merely a disretion limiting provision (permissible under Harris) but also serves as an offense defining provision (which Apprendi requires be pled and proved). What I was looking for was whether the court addressed this difference. Either the issue was not raised or was unimportant to the court. In my opinion the coupling of the death results with the minimum and maximum permits another legitimate interpretation that the structure indicates that death results is an element.

Posted by: will | Dec 9, 2010 2:32:01 PM

I agree with will. The "death results" finding raises the maximum from 20 years to life. How is Apprendi not applicable?

Posted by: EE student | Dec 9, 2010 10:42:39 PM

"It has no choice but to impose that sentence" of 20 years.

That's precisely why it should be an element.

Posted by: Parental control software | Mar 30, 2011 2:41:34 AM

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