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February 22, 2010

Might the Harris limit on Apprendi be questioned in O'Brien/Burgess argument?

As detailed in this post at SCOTUSblog, on Tuesday morning the Supreme Court will hear oral argument in United States v. O'Brien and Burgess, a combined pair of cases concerning the application of the machine-gun mandatory minimum sentencing enhancement of 18 U.S.C. § 924(c).  As regular readers may recall from posts here and here back when cert was granted in these cases, the Apprendi Sixth Amendment line of cases (and especially the Harris mandatory minimum exception) may be in play and at issue in these case.

After reviewing the merits briefs in O'Brien and Burgess (which are available here thanks to the ABA), my gut tells me that the Justices will be drawn to ruling for the defendants on statutory interpretation grounds, which will allow the Court to dodge all the tough constitutional questions that a ruling for the government could present.  But my gut instinct about a lot of SCOTUS sentencing issues is rarely spot-on, and I suspect that the validity of Harris might come up during Tuesday's oral argument even if the majority of Justices are inclined to resolve O'Brien and Burgess on statutory interpretation grounds.

For those eager to gear up for the O'Brien and Burgess argument by giving thought to the possibility of overruling the Harris mandatory minimum exception to the Apprendi Sixth Amendment rule, I recommend the amicus brief filed by NYU Center for the Administration of Criminal Law (with which I helped a bit). That brief makes a serious argument for now doing away with Harris mandatory minimum exception to the application of the Apprendi doctrine.

February 22, 2010 at 09:23 PM | Permalink


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Editing note. The reach of the posting would be wider if the each of the doctrines were briefly stated, rather than using a case name, requiring that the reader look things up. I know the technical proficiency may make the author forget, and leave the ordinary reader behind. However, a wider audience would further any aim to promote understanding of sentencing law and policy.

Posted by: Supremacy Claus | Feb 22, 2010 11:08:23 PM

I agree completely with Professor Berman's gut instinct. And I also agree that this case has the potential to make a significant impact on sentencing jurisprudence. Whether it does or nor all depends on what issues the justices decided to tackle in writing the opinion.

Since the topic of this post is exactly in line with a comment I made yesterday, I'll re-post below.

The defendants' briefs in O'Brien and Burgess raise some great issues. These include:
A) a "tail wagging the dog" due process violation argument,
B) what does appellate "reasonableness" review entail (i.e. would a 30 year sentence be "reasonable" without the firearm finding),
C) an as-applied 6th Amend violation under reasonableness review, and
D) whether Harris should be overturned.

Very interesting stuff!

It almost makes me think the Court might want to hold that the type of gun is an element of the offense per Castillo (a statutory interpretation case), just to avoid the other tricky sentencing issues that Defendants have raised.

Posted by: DEJ | Feb 23, 2010 11:34:39 AM

I would be very surprised if the Court did not follow the pattern of Jones and Castillo here, and construe the statute to require proof of the mandatory-minimum triggering facts as offense elements. The arguments in the respondents’ briefs are too persuasive, and the Government’s effort to distinguish Castillo is too weak.

The more interesting question, in my view, is how many votes the constitutional avoidance discussion will get. Will it be folded into the majority opinion, finally ratifying Scalia’s arguments in Rita and Gall? Or will Scalia write separately again? (And will anyone join him this time?)

In working on my current manuscript (which should be up on SSRN within a month -- shameless plug), I’ve come to conclude that I don’t think Harris will be in play in O’Brien. The facts of O’Brien are a clear-cut violation of the as-applied challenge: based only on the plea admission facts (brandishing), the Guidelines sentence is seven years; based on a judge-found fact (machinegun), the Guidelines sentence would be thirty years. I find it completely implausible that a thirty-year sentence would be upheld as reasonable by reference only to the admitted facts. Such a four-fold increased sentence could avoid being an abuse of discretion only if it is justified by some additional facts above and beyond simple brandishing -- exactly the situation of the as-applied challenge. So O’Brien is a case where the judge-found fact would increase the sentence above the otherwise available MAXIMUM sentence (under Booker-Rita).

The Court will only be able to confront Harris in a fact pattern where the judge-found fact increases the bottom end of the sentence but remains well within the Booker-Rita upper end. The analogy is Kimbrough, where the Guidelines sentence was 228-270 months (100:1 ratio), the judge otherwise would have imposed 97-106 months (1:1 ratio), but the judge was compelled to impose 180 months due to the mandatory minimums. On those facts, the mandatory increase to the sentence did not exceed the maximum allowed by the jury facts (i.e., something even more than 270 months, presumably), but it did cut off the judge’s ability to impose the desired lower sentence. Of course in Kimbrough, the mandatory minimum facts were established as elements in the plea admissions, so Harris was not implicated. Rather, Harris can only be in play when there is a judge-found fact which increases the mandatory minimum sentence without reaching near the top end. But since most offense tiers are construed to be elements as a matter of statutory interpretation, and the Guidelines are now advisory, those situations are fairly rare. (Much rarer than they would have been prior to the Booker remedial opinion, certainly, and Thomas’ dissents in Gall and Kimbrough notwithstanding.)

Ironically, the best fact pattern for the Court to directly address Harris would be to grant another 924(c)(1)(A)(ii) case, just like Harris itself. A sentence of something longer than seven years is probably reasonable (under Booker-Rita) for carrying a firearm, even based simply on the jury fact of carrying. Therefore no valid as-applied challenge to an increased MAXIMUM sentence (i.e., seven is less than more-than-seven). On the other hand, the judge-found fact of brandishing mandates an increased MINIMUM sentence from five years to seven years. Now the holding of Harris is directly in play.

But that’s not O’Brien. And so we wait…


Posted by: B.J. Priester | Feb 23, 2010 2:49:01 PM

i agree that harris is not really in play. i'd be surprised if they got near the as-applied challenge, though scalia may concur to discuss it, noone else seems much interested and it is a seemingly unworkable test.

i think the court will say that the statute is fairly susceptible of being read so that firearm type is an element and since that is so it can look at the castillo factors which all point to it being an element.

nice amicus, doug

Posted by: big bad wolf | Feb 23, 2010 3:24:31 PM

If Harris gets reversed, then I got screwed in Dean last term.

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