FAQs: The Impact of the Alleyne Decision

FAQs: The Impact of the Alleyne Decision

By Craig M. Coscarelli

On June 17, 2013, the U.S. Supreme Court handed down a remarkable 5-4 decision in Alleyne v. United States ( No. 11-9335) (S. Ct. June 17, 2013) wherein the Court held that [a]ny fact that increases the mandatory minimum is an “element” that must be submitted to the jury and found beyond a reasonable doubt. The money quote from the majority opinion was ” because there is no basis in principle or logic to distinguish facts that raise the maximum from those that increase the minimum, Harris was inconsistent with Apprendi. It is, accordingly, Overruled.” Alleyne, slip opinion, at page 15.

While the students of the law here at USP Lewisburg have not had time yet to fully study the Alleyne case, based on a much-to-quick first read, and first-cut reaction, we have put together the below list of frequently asked questions addressing how we believe the Alleyne decision will impact your case.

1) Is Alleyne Retroactive?

Answer: Whether or not a new rule of law announced by the Supreme Court is to apply retroactively in criminal cases on habeas review for the first time depends largely on whether this rule is substantive or procedural.

Although the issue in Alleyne involved a federal firearm prosecution, the decision will affect not only these types of cases but any other in which legislators have provided enhanced minimum penalties based on certain facts, such as drug quantity. As explained in our article dated 6/8/13 entitled “Explaining Alleyne,” we expected and predicted that the decision in the words of Justice Thomas–” turns on the simple question of what constitutes a crime.” In Alleyne, in the opinion of Justice Thomas, the Court made clear that “any fact that, by law, increases the penalty for a crime is an ‘element’ that must be submitted to the jury and found beyond a reasonable doubt.” Alleyne, supra. Alleyne involves a decision interpreting (not just 18 U.S.C. 924(c)) and its many subsections) but many others (like 21 U.S.C. 841(b) and its many sub-sections); 18 U.S.C. 1512(a)(1)(A); 18 U.S.C. IIII, and many other substantive criminal statute(s). See, Alleyne (Justice Breyer, concurring) (The government cannot force a Judge to impose a higher sentence unless a jury finds the requisite statutory factual predicate)(slip op. at 13).

When a conviction is final, a new rule announced by the Supreme Court only applies if it is a substantive rule. Schriro v. Summerlin, 542 U.S. 345, 35 (2004). A substantive rule is one that “decriminalize[s] a class of conduct [or] prohibit[s] the imposition of [certain] punishment on a particular class of persons.” Saffle v. Parker, 494 U.S. 484 (1990). These substantive rules are applied retroactively because they “necessarily carry a significant risk that a defendant stands convicted of an act that the law does not make criminal [or] faces a punishment that the law cannot impose upon him.” See, Schriro, 542 U.S. at 352.

In sum, Alleyne articulated ‘ a substantive rule of statutory interpretation” because Alleyne‘s verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt. Thus, he has received a punishment that the law cannot impose upon him. Alleyne falls within the class of substantive decisions that “prohibit[s] a certain category of punishment for a class of defendants because of that status of offense.” O’Dell v. Netherland, 521 U.S. 151, 157 (1997).

2) Will Alleyne apply to Enhancements like 851 and Career Offender?

Answer: Again, Alleyne holds, “Because mandatory minimum sentences increase the penalty for a [c]rime, [a]ny fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury. Accordingly, Harris is overruled.” (slip op. at 10, 16) Alleyne does not hold any fact [other than a prior conviction] that increases the mandatory minimum as an element. With that said, see United States v. Estrada, 428 F.3d 387, 389-90 (2nd Cir. 2005) (holding that mandatory life sentence under 851 after a conviction of 841(b)(1)(A) is permitted under the rationale of Harris), cert. denied, 546 U.S. 1223,(2006); United States v. Puzey, 73 F. App’x 549 583-54 (4th Cir. 2003)(same).

Thus, the logical outflow of Alleyne is that recidivist enhancement, such as those that come from an 851 notice, should be charged in the indictment and proved to a jury beyond a reasonable doubt. Because Alleyne does not address the so-called “Apprendi” exception clause (i.e., any fact other than a prior conviction). And because the Supreme Court finally overturned the wrongly decided decision in Harris, we encourage all to challenge recidivist enhancement should be charged in the indictment and proved to a jury beyond a reasonable doubt. Because Alleyne does not address the so-called “Apprendi” exception clause (i.e., any fact other than a prior conviction).

3) Does Alleyne apply also to Guideline Enhancements?

Answer: Since Harris (2002), the courts have been using guideline factors to enhance a defendant’s base offense level pursuant to Harris.

It is clear that under the “Law of the case doctrine,” courts should refuse to consider an argument by the government to the contrary. Because the law of the case doctrine forecloses re-litigation of issues expressly or impliedly decided by the appellate court. This is also evident from the facts of the Alleyne case; while Alleyne received a mandatory minimum sentence it was also considered to be a guideline enhancement under Harris as a result of the court’s incorrect interpretation of an element-v- sentencing enhancement. In fact, all circuits have repeatedly made clear that guideline enhancements below the statutory maximum of the offense of conviction (like the one in pre-Alleyne) may be determined by a sentencing judge and need not be submitted to a jury. See United States v. Duncan, 413 F. 3d 680, 683 (7th Cir. 2005) (rejecting the idea that the fifth and sixth amendments require sentencing enhancements to be alleged in the indictment, submitted to the jury, and proved beyond a reasonable doubt, citing Harris).

For those under the advisory guidelines system, we encourage the presentation of arguments that perhaps Alleyne could be combined with Peugh v. United States, No. 12-62 (S. Ct. 6/10/13) to generate procedural protections even for inmates sentenced in a post-Booker world.

4) What kinds of cases would this Alleyne apply to?

Answer: Without a doubt, all mandatory minimum statute(s) where a mandatory minimum sentence is at issue.

Alleyne means that the government cannot force a judge who does not wish to impose a mandatory maximum sentence upon a defendant to do so unless a jury finds the requisite statutory factual predicate. (See, e.g., 21 U.S.C. 851, 18 U.S.C. 924(e), career offender status, 21 U.S.C. 841(b)(1)(A) or (b)(1)(B), 18 U.S.C. 924 (c)(1), 18 U.S.C. 1111, 21 U.S.C. 960(b).

5) What impact would Alleyne have on plea agreements?

Answer: This is a difficult question and has no easy answer. A case-by-case judgment is required to assess its application. See Bousley v. United States, 523 U.S. 614 (1998) (“If the record disclosed that at the time of the plea, neither the accused nor his counsel. nor the district court correctly understood the essential elements of the crime with which he was charged, then the plea was invalid under the federal constitution.”)

In light of Alleyne, it is clear now that when you were advised by the judge, by your own lawyer, and the prosecutor that your requisite statutory factual predicate were not elements of the crime with which you were charged. You received critically incorrect legal advice. The fact that all of your advisers acted in good faith and reliance on existing precedent does not mitigate the impact of the erroneous advice. Its consequences for you were just as severe and just as unfair as if the court and counsel had knowingly conspired to deceive you in order to induce you to plead guilty to a crime that you did not commit. The same legal argument should be submitted in a bench trial.

6)  What about pre-Apprendi cases?

Answer: Alleyne could be significant for pre-Apprendi defendants sentenced to mandatory minimum sentences. Because in the pre-Apprendi world, prosecutors did not submit drug quantity and other mandatory-minimum-triggering facts to juries in special verdict forms to support mandatory minimum sentences. Thus, these defendants are actually innocent of the necessary elements to support a mandatory minimum sentence. See, e.g., Spence, 2129 F.3d 162 (2000)(“When a prisoner’s sentence is enhanced without a valid factual basis, yet he remains incarcerated pursuant to that sentence, it follows inexorably that he is a victim of a miscarriage of justice”). More to come on pre-Apprendi cases. Stay tuned.

7) Which procedure avenue should I use?

Answer: This is a difficult question and has no easy answer. Again, a case-by-case review is required to assess the proper avenue.

But please note that various Courts of Appeals have interpreted 28 U.S.C. Section 2255(f)(3) in such a way that permits a district court to determine retroactively a decision like Alleyne. See also 2255(e) the proper avenue. See also 2255(e) for all defendants that have already filed a section 2255(f)(1) motion.

8) What is Alleyne‘s relationship with Article III?

Answer: The scope of the indictment goes to the existence of the trial court’s jurisdiction. 361 U.S. 212, 213 (1990); Ex Parte Bain, 121 U.S. 1 (1886). A prosecutor cannot make an end-run around the jurisdictional prerequisite of an indictment by charging any federal offense and then proceeding to prosecute a defendant for a different, albeit related federal offense. Likewise, a prosecutor cannot make this jurisdictional end-run and then urge the Court to sentence the defendant for an offense for which the defendant was neither charged nor convicted. A fundamental premise of our constitution is that it is not what one “really” does that can be punished, but only that conduct that is proven trial. The mandate of the U.S. Constitution is simple and direct: “If the law identifies a fact that warrants deprivation of a defendant’s liberty or an increase in the deprivation, such fact must be proven to a jury beyond a reasonable doubt.” See U.S. Const. Art. III 2, Cl.3. If Congress makes an increase in a defendant’s authorized punishment contingent on the finding of a fact (like those in the guidelines), that fact must be found by a jury beyond a reasonable doubt.

If you don’t fight for relief, you may never receive it. You should leave it to the Courts to work out. As always, your comments or questions are welcome.