Wednesday, November 02, 2005

Prior Drug Convictions, Resulting in Mandatory Life Sentence under § 841(b)(1)(A), Need Not Be Charged in Indictment or Proved to a Jury

United States v. Herredia, Docket No. 02-1544-cr(L) (2d Cir. Nov. 2, 2005) (Winter, Sotomayor, Wesley): A bad result for the defendants, but the Circuit's decision presents an opportunity for the Supreme Court to overrule both Harris and Almendarez-Torres in one fell swoop. Here, the two defendants were convicted of conspiring to distribute more than a kilogram of heroin, which ordinarily carries a mandatory minimum sentence of 10 years and a maximum sentence of life under 21 U.S.C. § 841(b)(1)(A). However, both defendants had sustained at last two prior drug felonies before committing the instant offense. This fact dramatically altered their sentence: Upon conviction, they would face a mandatory life sentence.

Prior to trial, the Government filed a prior felony information pursuant to 21 U.S.C. § 851 for each defendant, listing their prior drug felonies. These priors were not alleged in the indictment, however, nor were they presented to (or found by) the jury at trial. After the jury convicted the defendants of the "simple" § 841(b)(1)(A) offense, the judge sentenced both defendants to a mandatory life term.

On appeal, the defendants argued that the life sentences violated their Fifth and Sixth Amendment rights, contending that the Government must charge the prior convictions in an indictment and prove them to a jury beyond a reasonable doubt.

The Circuit affirmed the sentences on two independent grounds. First, the Court found that Harris controlled, since the fact of the prior convictions did not increase the statutory maximum, but only the statutory minimum (given that defendants faced a 10 to life sentence upon their conviction for distributing more than a kilo of heroin). See Op.5-6 ("[T]he statutory maximum remains constant, having been determined by the drug quantity found by the jury."). Second, and independently, the Court found that Almendarez-Torres controlled: Even if the Apprendi / Blakely rule were implicated, the prior conviction exception to that rule, set forth first in Almendarez-Torres, governed and thus the Government was not required to charge the priors in the indictment or present them to the jury. Op. 6-7. While recognizing Almendarez-Torres's tenuous status as precedent in light of cases such as Shepard, 125 S. Ct. 1254 (2005), the Circuit concluded that Almendarez-Torres "nonetheless remains the law." Op. 8.

The opinion thus breaks no new ground, simply following Harris and Almendarez-Torres. Both decisions rest on shaky ground, however, and perhaps the Supreme Court will use this case as a vehicle to, once and for all, settle the uncertainties.


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