Monday, August 22, 2005

Apprendi Applies to Mandatory Minimum Provisions of 21 U.S.C. § 841(b); Harris Distinguished

United States v. Manuel Gonzalez, Docket No. 03-1356 (2d Cir. August 22, 2005) (Sack, Sotomayor, Raggi) (Op. by Raggi): This is a significant opinion that is long overdue. The Court finally clarified that, in light of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its own en banc decision in United States v. Thomas, 274 F.3d 655 (2d Cir. 2001), drug quantity is always an element of 21 U.S.C. § 841, regardless of whether the actual sentence imposed exceeds the 20-year maximum for offenses involving an unspecified quantity of drugs under § 841(b)(1)(C). This decision thus puts an end to the Government's nonsensical, schizophrenic interpretation of § 841 -- that quantity sometimes is, but sometimes is not, an element (depending post-hoc on whether the actual sentence imposed exceeds 20 years). The takeaway is that in order for a district judge to impose a mandatory minimum sentence under one of the aggravated provisions of § 841(b), a jury must find beyond a reasonable doubt -- or the defendant must admit -- the triggering quantity.

In this particular case, Gonzalez was charged with conspiring to distribute 50 grams or more of cocaine base, thus triggering the severe mandatory minima of § 841(b)(1)(A). Because he had a prior state drug felony, he was subject to a mandatory minimum of 20 years' imprisonment and a maximum of life imprisonment based on the quantity. Gonzalez entered a guilty plea prior to Apprendi, but disputed the quantity alleged in the indictment. After Apprendi was decided, he moved to withdraw his guilty plea on the grounds that (1) he was misinformed by the district judge that the quantity issue would be resolved by the judge rather than the jury, and that (2) there was no factual basis for his plea, since he did not admit to the 50+ grams "element". The court denied the motion and sentenced Gonzalez to the 20-year minimum.

The Government argued on appeal that the 20-year sentence (imposed as a mandatory minimum) was proper despite Apprendi and despite the lack of either a jury finding or an admission regarding drug quantity because this sentence did not exceed the 20-year maximum authorized by § 841(b)(1)(C) for drug offenses involving an indeterminate quantity of narcotics. The Court resoundingly rejected this mix-and-match reading of § 841: The "sentencing range [provided by § 841(b)(1)(C] and the higher ones provided in § 841(b)(1)(A) and -(b)(1)(B) for quantified crack offenses operate as unified and independent wholes, [and] cannot be deconstructed . . . so that drug quantity operates as an element for purposes of determining an applicable sentencing maximum but as a sentencing factor for purposes of determining the applicable mandatory minimum." Op. at 5. Among other things, the Court rightly pointed out the unworkability of the Government's reading, in which the question of whether drug quantity is an element depends in each case on what happens at sentencing, after the trial or guilty plea:

"[J]ustice would hardly be well served by a rule that delayed the identification of one or more elements of a crime until sentencing. Prosecutors, who must draft indictments and develop evidence to meet their burden of proof; defendants and their counsel, who must decide whether to challenge the sufficiency of the Government's case or pursue plea negotiations; and trial judges, who must rule on the relevancy and sufficiency of evidence, prepare jury instructions, and ensure the factual bases for guilty pleas, all need to know long before sentencing which facts must be proved to a jury and which ones can be reserved for resolution by the sentencing judge. Thomas reconstrued § 841 to provide a clear answer to this question in light of concerns raised by Apprendi, and we repeat the court's response today: drug quantity is an element that must always be pleaded and proved to a jury or admitted by a defendant to support conviction or sentence on an aggravated offense under § 841(b)(1)(A) or -(b)(1)(B)."

Op. at 35. For emphasis, Judge Raggi notes that the opinion in Gonzalez was circulated to all active members of the Circuit for review before it was filed. Op. at 37 fn.18.

The crux of Gonzalez is its reading of the Apprendi rule as applying to any fact that potentially exposes the defendant to a greater sentence even if the actual sentence imposed, without a jury-finding on the disputed fact, does not exceed the statutory maximum without that fact. The Court relied heavily upon the following passage from Apprendi (with its own emphasis): "It 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." Op. at 26-27. Gonzalez also relied on the Supreme Court's recent decision in Shepard v. United States, 125 S. Ct. 1254, 1262 (2005), in which a plurality of the Court ruled that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury." Op. at 31 (emphasis in original).

This reading of the Apprendi rule also served to distinguish the case at hand from Harris v. United States, 536 U.S. 545 (2002), in which the Supreme Court, distinguishing Apprendi, held that facts that increase the mandatory minimum under 18 U.S.C. § 924(c) are not elements that need to be proved to a jury but are mere sentencing factors that can be found by a judge. Judge Raggi rightly criticizes Harris -- "The logic of the distinction drawn in Harris between facts that raise only mandatory minimums and those that raise statutory maximums is not easily grasped," op. at 25 -- but concludes simply that Harris is distinguishable. This is because under § 924(c), a fact (e.g., the brandishing of a firearm) increases only the statutorily required minimum but does nothing to alter the maximum (presumed to be life for all § 924(c) offense). In contrast, § 841(b) "does not use a fact (drug quantity) simply to identify increasing minimum sentences within a penalty scheme with a fixed maximum. Instead, when drug quantity raises a mandatory minimum sentence under § 841, it simultaneously raises a corresponding maximum, thereby increasing a defendant's authorized sentencing range above what it would have been if he had been convicted of an identical unquantified drug crime." Op. at 26. And because the Apprendi rule applies to any fact that "increases the prescribed range of penalties to which a defendant is exposed," it applies to drug quantity under § 841(b).

The Second Circuit joins the 4th, 9th, and D.C. Circuits in adopting this reading of § 841(b). Arrayed in the opposing camp are the 1st, 5th, 6th, 8th, and 10th Circuits, which agree with the Government that whether drug quantity is an element or a sentencing factor varies in each case and is "revealed only at sentencing." Op. at 33-34. Given the clear split, and given that prosecutions under § 841(b) constitute a significant portion of the federal criminal docket, review by the Supreme Court seems well warranted.


Anonymous mortgage adjustable rate said...

thought-provoking, mootable pv. just my thoughts, well anyways gl & be chipper is what i say

December 11, 2005 at 4:46 AM  

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