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January 15, 2013

Another perspective on Alleyne argument (predicting Harris's demise)

Experienced lawyer and federal sentencing guru Mark Allenbaugh (firm website here), who has already provided a terrific review of last week's meeting of the US Sentencing Commission for the blog here, now comes through with this lengthy guest-post concerning what he saw at yesterday's SCOTUS oral argument over the reach of the Apprendi:

In a rather spirited exchange between the Justices and counsel, the U.S. Supreme Court heard oral argument today in Alleyne v. United States, 11-9335. (Alleyne is pronounced “AH-lane,” by the way).   The question presented was whether the Court should over-rule its decade old plurality decision in Harris v. United States, 536 U.S. 545 (2002), which held that Apprendi did not apply to facts triggering mandatory minimum penalties. In Alleyne, the defendant was convicted of violating 18 U.S.C. § 924(c), which requires a 5-year mandatory minimum sentence for possession of a firearm in connection with another felony, but a 7-year mandatory minimum if the firearm was brandished, 10 years if discharged.   Moreover, such mandatory minimum penalties are to be imposed consecutive to any guidelines sentence for the underlying felony.   A special verdict form was used in Alleyne as to whether the defendant merely possessed or brandished the firearm; the jury found only that a firearm was possessed.   However, at sentencing, the district judge found by a preponderance of the evidence that the defendant in fact brandished the firearm.  And while reluctant to be a “reverser” of the jury, imposed the 7-year mandatory minimum sentence.

Somewhat surprisingly, the Court started off with a rather rigorous investigation into stare decisis.   Justices Alito and Scalia explored what the principle was for ignoring stare decisis in this case, and pondered the effect of prior opinions of the Court on Harris. Justice Ginsburg helpfully asked whether the issue simply was the degree of persuasiveness a plurality decision has vis-à-vis a unanimous opinion.  Still Justice Alito struggled with developing a constitutional principle that would support overruling Harris. Nevertheless, it did not appear that stare decisis would be an impediment to reversing Harris.

Moving on to the core issue, the Justices struggled with what the holdings in Apprendi and McMillan (upon which Harris rested) meant in terms of increased penalty exposure.  If the ceiling (statutory maximum) is increased, all agreed that that clearly increases a defendant’s exposure. T he issue was whether that also applied to the floor (mandatory minimum).  Justice Scalia repeatedly returned to the fact that if only the floor changes, say from 5 years to 7 years, it does not change what a judge “could have” imposed, and therefore does not increase a defendant’s exposure.  So, for example, if the ranges are 5 to 10 years, a judge could just as easily impose a 7 year sentences the same as if the range were 7 to 10 years.  The government framed the issue as whether a defendant has a constitutional right to judicial leniency. i.e., to a lower sentence than the mandatory minimum.

Interestingly, while there was a focus on the statutory maximum, there was little discussion of a penalty “range,” which to this observer would have seemed to address much of the concern.  A range, of course, implies both a ceiling and a floor.  Apprendi did, after all, discuss exposure not only in terms of an increased statutory maximum penalty, but expressly held that “[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed RANGE of penalties to which a criminal defendant is exposed.” (Emphasis added).  And as we all know, Booker, in holding the Federal Sentencing Guidelines unconstitutional, was concerned about “ranges” there as well.  So, if the argument had moved away from just the ceiling and to “range,” then it would have seemed to address some of the Court’s concerns.  Interestingly, Justice Breyer, who candidly admitted in Harris that he could not logically distinguish Apprendi from its application to mandatory minimum penalties, was silent throughout much of the debate.

Finally, there was some interesting discussions concerning statistics from Justices Kagan and Sotomayor.  Those Justices inquired as to the frequency of sentences imposed at the mandatory minimum in 924(c) cases.  Presumably if judges impose sentences at the mandatory minimum the majority of the time (and Petitioner’s counsel indicated that this is the case), such a finding presumably would tend to show that judges likely would impose a lower sentence if they could (and indeed, per the record below, that appeared to be the case in Alleyne).   However, the question was not framed quite right.  The penalties at 924(c) are imposed consecutive to any guideline sentence, so unless one knew what the underlying guideline sentence was, merely looking at the final sentence would not be instructive.  Further, and more importantly, the Commission does not provide any statistics on 924(c) that would be helpful to answering this question (although Ch. 9 of its recent report to Congress on Mandatory Minimum Penalties does provide some insight). Providing such statistics would be quite helpful, and the Commission’s database appears robust enough to provide reports on the same.

In the end, it appears to this observer that Harris will be overruled. Given that Harris will have little practical effect on sentencing practice because the government already includes in the indictment the facts that trigger a mandatory minimum, it is somewhat odd (to this observer) why the Court granted cert. in Alleyne.  Was it simply an academic exercise to clean-up Harris?  Perhaps, although it could be the start of a larger effort.  The Court recently asked the government to file a response to a petition of cert. in Stroud v. United States, 12-6877 addressing the controversial holding in Watts that courts may use acquitted and uncharged conduct at sentencing.

Recent prior posts on Alleyne case:

January 15, 2013 at 11:50 AM | Permalink


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What is missing here is a recognition that at the time a penalty is set by the Legislature, the problem is not fully knowable. The problem unfolds over a period of time. All of the facts that have a bearing on sentencing only become knowable after guilt is established.

Crimes are wrong, but they may not be bad; e.g., strict liability crimes. Criminal offenses are both wrong and bad. How bad has to be established after the fact when all of the relevant information becomes available for consideration. In other words, criminal offenses are modifier-head conceptual combinations. We penalize people for committing crimes, but punish them for committing criminal offenses. These are two different ways of thinking about the problem. They serve different purposes depending on the status of the problem as it unfolds.

Posted by: Tom McGee | Jan 15, 2013 3:11:20 PM

i was also at the alleyne argument, and i too think harris is likely to be overruled. it may be 5-4, but it may be 6-3; i could see the chief joining in to make it a clearer precedent in the light of alito's expressed, if, i think, somewhat specious concerns about stare decisis.

i am slightly hesitant for two reasons. first, justice breyer made the strongest case for alleyne, yet breyer still expressed a wish to roll back apprendi. does that mean that, in the end, he will vote to affirm harris and mcmillan? second, justice kagan asked questions that seemed to suggest that harris was vulnerable; she also, however, dismissed defense counsel's citation to apprendi's range near-holding as merely a sentence in opinion, while remarking that other sentences supported the government. still, i think harris is gone.

i was shocked by the absence of debate about the range. justice stevens in apprendi clearly set up the range language as the way to overrule mcmillan. it is that range language that is the "logic" of apprendi that justice breyer noted in harris and it is that logic that creates the sentencing "box" that he talked about in argument yesterday. yet both the justices and counsel avoided talk of the range almost entirely. quite strange, i thought (and does justice scalia not know he signed onto that language?)

if they don't overrule harris, do they still have to take at least a statutory case on the drug statute's mandatory miminums?

if they don't overrule harris on constitutional grounds, shouldn't they on castillo/o'brien grounds? not that castillo /o'brien aren't mad. five factor tests, indeed

Posted by: big bad wolf | Jan 15, 2013 8:35:11 PM

The government absolutely has this right. This is about protecting judicial discretion/power to be lenient. Whatever the merits of that--that aint the jury trial right.

Posted by: federalist | Jan 15, 2013 11:32:58 PM

I'm curious about what this portends for my practice in Michigan, which is a true indeterminate-sentence jurisdiction. The sentencing guidelines consider seven prior-record variables, and up to 20 offense variables, to determine a a "recommended minimum sentence guideline range," expressed in months, such as 5-23 months. The recommended range determines whether the defendant (1) must receive a prison sentence, with a minimum in that range, and the maximum (for a first offender) fixed at the statutory maximum; or (2) must not go to prison; or (3) can be sent to prison, though the judge could impose a probationary sentence instead. The past record has a big effect on the guidelines, and thus on what happens to the defendant.

Posted by: Greg Jones | Jan 16, 2013 10:28:01 AM


We, a number of defendants who went to trial and were "enhanced" applying the preponderance of the evidence standard at the sentencing phase are curious about what this portends to us. Where could be learn more about the implications for us if Harris were to be overruled?

Posted by: JoseFK | May 29, 2013 7:45:49 PM


Posted by: tyrone | Jun 27, 2013 10:27:59 AM

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