United States of America v. Maximo Laryi Herrerra Pena

United States Court of Appeals
For the First Circuit
No. 12-2289
UNITED STATES OF AMERICA,
Appellee,
v.
MAXIMO LARYI HERRERRA PENA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Kayatta, Circuit Judges.
Robert L. Sheketoff for appellant.
Jennifer Hay Zacks, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.
February 5, 2014

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LYNCH, Chief Judge. In federal prosecutions, under the
requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158
(2013), if the distribution of drugs is proven beyond a reasonable
doubt to a jury to have resulted in a death, a defendant will face
a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). But
if the government does not meet that burden before conviction, a
defendant will face a different mandatory minimum -- either 10
years, 5 years, or no minimum, depending on the drug type and
quantity. See 21 U.S.C. § 841(b)(1)(A), (B), (C). When, as here,
there is Alleyne error resulting in the imposition of a mandatory
minimum sentence based on judicial findings on a lesser standard of
proof, the circuit courts usually have merely remanded for
resentencing by the district courts.
The prosecution here asks us to depart from that usual
practice. We are asked, after an Alleyne error and following a
conviction based on a straight guilty plea to drug dealing but not
to "death resulting," to permit the prosecution on remand to
empanel a sentencing jury to allow the government to now prove
beyond a reasonable doubt that a death resulted from the
defendant's drug dealing. Because Alleyne was decided after
sentencing and while the case was on appeal, the situation in this
case will not frequently occur. We hold that the government's
proposed course of action is foreclosed on the facts of this case,
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is unfair, and would raise troubling constitutional questions that
can be avoided by denying the government's request.
I.
Defendant Maximo Laryi Herrerra Pena was a co-leader,
along with Joel Liceaga, of a heroin trafficking ring that operated
in Boston and the South Shore of Massachusetts. In 2009-2010, Pena
was directly linked to drug transactions involving a total of more
than 1.6 kilograms of heroin.
On July 30, 2009, Pena's organization sold heroin to
Joshua Johnson and David Geoffrion, leaders of a heroin
distribution business on Cape Cod. Later that day, Johnson and
Geoffrion sold a bag of heroin to Chelsea Joslin, a 20-year-old,
for $50. The government argues that the bag of heroin Geoffrion
sold to Joslin came from the heroin bought from Pena's
organization. The next day, Joslin was found dead in her Cape Cod
home, with a needle, a syringe, and a plastic baggie with heroin
residue nearby. Joslin had also been drinking and was taking a
prescription drug, and autopsy results showed the presence of all
three substances in her blood.
Pena was indicted on December 23, 2010, along with
Liceaga, Geoffrion, and Victor Manon, a drug runner from Pena and
Liceaga's organization. The indictment alleged two counts: (1)
conspiracy to distribute and to possess with intent to distribute
100 grams or more of heroin, and (2) possession of heroin with
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intent to distribute, distribution of heroin, and aiding and
abetting the same. Both counts alleged violations of 21 U.S.C.
§ 841(a)(1), which prohibits drug distribution.
The indictment further alleged for both counts that
"death and serious bodily injury resulted from the use of such
substance" based on Joslin's death. An appropriate finding of
"death resulting" increases the sentence on each count to a
mandatory minimum of twenty years and a maximum of life. See 21
U.S.C. § 841(b)(1)(B), (C). 1
Pena initially pled not guilty to both charges. On
November 30, 2011, Pena filed a motion arguing that "death
resulting" was an element of the offenses and that as a result, the
district court could not consider the mandatory minimum at a
sentencing hearing unless the "death resulting" element was first
found by a jury beyond a reasonable doubt. The government opposed
the motion, arguing that "death resulting" was a not a necessary
element of the indictment but a sentencing factor, which could
properly be determined at sentencing by the court on a
preponderance of the evidence standard. The government's choice
was surely deliberate: it wanted to show "death resulting" under a
1 Count 1 cited 21 U.S.C. § 841(b)(1)(B), which ordinarily
carries a mandatory minimum of five years and a maximum of forty
years, while Count 2 cited § 841(b)(1)(C), which ordinarily has no
minimum and a maximum of twenty years. So, without any "death
resulting" allegations, there would be no 20-year mandatory minimum
on either charge.
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far easier standard of proof and to prove it to a judge, not a
jury. 2
The day after the government filed its opposition, Pena
filed a response. Pena's response stated:
The defendant continues to maintain that
punishment based on a "death resulting"
finding must be premised on a jury conviction
of this element on proof beyond a reasonable
doubt. However, the defendant is willing to
accept the government's position that the
Superseding Indictment does not include "death
resulting" as an element. Given that view of
the Superseding Indictment, the defendant is
prepared to plead guilty to both counts
forthwith and requests that the Court schedule
a change of plea hearing.
(emphasis added). The response was explicit that the plea was
being entered in reliance on the prosecution's position that "death
resulting" was not an element of the offense. There was no plea
agreement with the prosecution. Nor was there ever any order or
agreement to bifurcate the proceedings.
The district court scheduled a change of plea hearing,
which began on January 27, 2012. After a continuance, the hearing
was concluded on February 9, 2012. At the hearing, Pena admitted
all of the facts relevant to each count other than the "death
resulting" allegations. As to Count 2, Pena admitted only that he
assisted in or arranged for the supply of heroin to Johnson on July
2 In a footnote, the government did argue that it retained
the option to prove "death resulting" to a jury if it wanted a
higher maximum sentence. It did not argue that it retained any
such option to increase a minimum sentence.
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30, 2009. In Pena's view, it was Liceaga's heroin, not his, and he
aided and abetted Liceaga in getting the heroin to Johnson. Pena
also argued that the 20-year mandatory minimum could not apply
without a jury finding on "death resulting." The government made
no objection to acceptance of the defendant's plea, even in light
of the continued denial of the "death resulting" allegations.
The district court accepted the guilty plea. Pena argued
that the government's representation that death resulting was not
charged in the indictment meant that the government had waived the
opportunity to seek the death-resulting enhancement. The
prosecution again did not seek to reserve any right to use a
sentencing jury to increase the minimum sentence if the
government's assessment that "death resulting" was only a
sentencing factor proved incorrect.
Pena also informed the court that if the court decided
"death resulting" was a sentencing factor, he would probably seek
to have an evidentiary hearing and to cross-examine witnesses. The
defendant's incarceration continued.
On May 8, 2012, in light of the government's position,
Pena filed a motion requesting an evidentiary hearing on the "death
resulting" issue before his sentencing hearing. On July 18, 2012,
the district court issued a memorandum opinion rejecting Pena's
November 30, 2011 pre-plea motion arguing that the mandatory
minimum could not apply unless the "death resulting" element was
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tried before a jury. See United States v. Pena, No. 10-10017-NMG,
2012 WL 2952771 (D. Mass. July 18, 2012). The court rejected
Pena's argument, concluding that "death resulting" was a sentencing
factor. It then turned to Pena's argument from his May 8 motion
and granted his request for an evidentiary hearing.
The court held the evidentiary hearing on the "death
resulting" issue on July 19, 2012. After examining the witnesses,
Pena's counsel raised two primary lines of argument at the hearing.
The first was whether the autopsy by Dr. Henry Nields established
that heroin actually caused Joslin's death, given that there were
questions surrounding the reliability (for chemistry purposes) of
the source of the victim's blood sample and given Dr. Nields's
testimony that he could not say with certainty that the
prescription drug and alcohol found in her system could not have
caused the death even without the heroin. The second, developed
through counsel's cross-examinations, was the credibility of
Johnson, who had an alternate supply of heroin and was himself a
heroin user (and had used heroin the day he supplied it to Joslin).
Pena challenged the credibility of Johnson's testimony that, among
other things, he had not mixed his heroin from different sources
and that he carried over no inventory of heroin but got a fresh
supply daily.
In a carefully detailed written order, the court
concluded that the government had proven by a preponderance of the
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evidence that Joslin's death did result from Pena's heroin
distribution. See United States v. Geoffrion, 910 F. Supp. 2d 337,
343 (D. Mass. 2012). The court found the testimony of Dr. Nields
to be credible and that it was "more likely than not" that "Joslin
died from accute intoxication by the combined effects of ethanol,
opiates and citalopram, i.e., that the heroin used played a
significant causal role in her death." Id. at 342. 3 The court
also found that the evidence established by a preponderance that
the heroin Joslin used was originally supplied by Pena or by other
members of his conspiracy. Id.
The Supreme Court granted certiorari in Alleyne on
October 5, 2012. The petition had been filed on March 14, 2012.
The parties were aware of the grant of certiorari and the
government discussed it at the sentencing hearing the next week.
On October 11, 2012, the district court held a sentencing
hearing. 4 Based on calculations in the presentencing report, Pena
3 Under the Supreme Court's recent decision in Burrage v.
United States, 134 S. Ct. ___ (2014), this causation determination
was insufficient to support a "death resulting" conviction. The
Court held in Burrage that the "death resulting" enhancement
requires a but-for causal relationship between the drugs and the
victim's death. Id. at ___ (slip op. at 9). Under Burrage, the
drug use must be an "independently sufficient cause" of the
victim's death. Id. The district court, however, limited its
finding to the conclusion that the heroin "played a significant
causal role" in a death resulting from the "combined" cocktail of
"ethanol, opiates and citalopram." Geoffrion, 910 F. Supp. 2d at
342.
4 Apparently neither party requested a delay in sentencing in
light of the grant of certiorari in Alleyne.
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faced a base offense level of 38 under the Sentencing Guidelines if
"death resulting" applied to his conviction, and a base offense
level of 32 if "death resulting" was not established. After
applying relevant increases and decreases, these alternative
offense levels produced Guidelines ranges of 292-365 months or 151-
188 months, respectively. At the hearing, Pena continued to argue
that the higher range based on "death resulting" could not apply
because the "death resulting" element had not been proven to a jury
beyond a reasonable doubt and his plea did not admit to it.
The court rejected Pena's argument and, relying on its
findings, used the higher Guidelines range based on "death
resulting." It applied the "death resulting" increase to both
counts, triggering a mandatory minimum of 20 years. Based on the
higher Guidelines range and the mandatory minimum, it departed
downward to a final sentence of 252 months (21 years) for Count 1,
to be served concurrently with the statutory maximum sentence of 20
years for the aiding and abetting plea on Count 2. 5 The court
described this sentence as "longer than the mandatory minimum
sentence for a drug offense resulting in death" while still "about
15% below the low end of the applicable guideline range." It
explained that, "although the defendant put in motion a tragic set
5 Because "death resulting" and drug quantity had not been
found by a jury on Count 2, under Apprendi v. New Jersey, 530 U.S.
466 (2000), they could not trigger an increase in the maximum
sentence. As a result, 20 years was both the mandatory minimum and
statutory maximum sentence for Count 2.
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of events that resulted in the death of a young woman, a 21-year
sentence is sufficient but not greater than necessary under these
specific circumstances."
During this sentencing hearing, the prosecution requested
that, if the court imposed a sentence above the mandatory minimum,
it issue an alternative holding explaining that it would have done
so at its discretion regardless of the mandatory minimum based on
"death resulting." Defense counsel objected, saying the government
had chosen its constitutional path and the time to make an upward
departure argument would be at a resentencing if the Supreme
Court's ultimate decision on the Sixth Amendment constitutional
issue were to require one. The district court recognized that the
prosecution was making the request and engaged the government in a
lengthy colloquy about it, but ultimately declined to issue an
alternative holding. Pena appealed.
Alleyne was decided on June 17, 2013, while Pena's appeal
was pending. In Alleyne, the Supreme Court held that the Sixth
Amendment right to a jury requires that any facts which would
increase a mandatory minimum sentence are "element[s] of a distinct
and aggravated crime" that must be found by a jury beyond a
reasonable doubt. 133 S. Ct. at 2162-63.
Pena now argues, and the government agrees, that his
sentence was imposed in violation of Alleyne. The parties agree
that the sentence must be vacated and the case remanded. But they
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have different views as to whether on remand a sentencing jury may
be empaneled.
II.
Some background on the decision in Alleyne is helpful to
understand the issue on appeal and the different claims of
fairness.
Alleyne is the most recent in a series of Supreme Court
sentencing cases concerning defendants' Sixth Amendment rights to
trial by jury, beginning in 2000 with Apprendi v. New Jersey, 530
U.S. 466 (2000). In Apprendi, the defendant had pled guilty to,
inter alia, an offense carrying a sentence of five to ten years.
Id. at 470. After the guilty plea was entered, the prosecution
sought an enhancement under a hate crime law. The district court
held an evidentiary hearing and the court determined on a
preponderance of the evidence standard that the defendant had met
the requirements of the hate crime statute. Id. at 470-71.
Accordingly, the court sentenced him to 12 years' imprisonment on
that count, two years above the ordinary maximum for that offense
without the hate crime enhancement. Id. at 471.
The Supreme Court reversed in a 5-4 decision. It
articulated a distinction between "elements" of an offense, which
the constitutional guarantee of the right to a trial by jury
requires to be found by a jury beyond a reasonable doubt, and
"sentencing factors," which could be found by a judge on a
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preponderance standard. Id. at 485-86. Other than prior
convictions, it held, "any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to
a jury, and proved beyond a reasonable doubt." Id. at 490
(emphasis added).
Two years later, in Harris v. United States, 536 U.S. 545
(2002), the Court distinguished increases to mandatory minimums
from the increases to sentencing range maximums it had considered
in Apprendi. In Harris, the defendant had been convicted of a drug
trafficking crime involving a firearm. Id. at 550-51.
"[P]ossess[ing]" a firearm during a drug trafficking crime would
trigger a five-year mandatory minimum; the minimum would increase
to seven years for "brandish[ing]" the firearm during the crime.
Id. at 551 (quoting 18 U.S.C. § 924(c)(1)(A)). Based on a finding
on a preponderance of the evidence standard, the district court
determined that the defendant had brandished a firearm and
sentenced him accordingly. Id. In another 5-4 decision, the
Supreme Court affirmed. The Court held that factors triggering
mandatory minimums "need not be alleged in the indictment,
submitted to the jury, or proved beyond a reasonable doubt." Id.
at 568. Justice Breyer, the fifth vote in the majority, recognized
that Harris and Apprendi were not "easily distinguish[able]" and
explained that he "cannot agree with the plurality's opinion
insofar as it finds such a distinction." Id. at 569 (Breyer, J.,
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concurring in part and concurring in the judgment). He went on to
explain that he was joining with the plurality because he
"continue[d] to believe" that Apprendi was wrongly decided, and
that judges should be free to go above both statutory maximums and
mandatory minimums without a jury finding. Id. at 569-70.
In 2010, the Court again discussed the distinction
between sentencing factors and elements in United States v.
O'Brien, 560 U.S. 218 (2010), in the context of the same firearms
provision that had been at issue in Harris.6 O'Brien's unanimous
holding was limited to the narrow conclusion that whether a firearm
was a machinegun -- a fact that determined mandatory minimums --
was an element of the offense. Id. at 221, 235. In a concurrence,
however, Justice Stevens observed that "[t]he unanimity of our
decision today does not imply that McMillan [v. Pennsylvania, 477
U.S. 79 (1986), and its successor case Harris] is safe from a
direct challenge to its foundation." Id. at 240 (Stevens, J.,
concurring). He articulated his view that the "reluctant Apprendi
dissenter" who had completed the bare majority in Harris -- that
is, Justice Breyer -- "may no longer be reluctant." Id. at 239.
The direct challenge to which Justice Stevens referred
arrived in Alleyne. There, the verdict form allowed the jury to
6 The Court had also decided another strand of Apprendi-based
cases in 2004 and 2005 with Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005), which
rendered the federal Sentencing Guidelines advisory.
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find that a firearm had been "[u]sed or carried" or "[b]randished"
under the same firearms provision as Harris and O'Brien. The jury
found the defendant guilty of "carr[ying]" a firearm but declined
to make a finding of brandishing. Alleyne, 133 S. Ct. at 2155-56.
The trial judge sentenced the defendant based on a higher mandatory
minimum triggered by the judge's finding by a preponderance of the
evidence that the defendant had "brandished" the weapon. Id. at
2156. The Supreme Court reversed. In a 5-4 decision, the Court
held that "the principle applied in Apprendi applies with equal
force to facts increasing the mandatory minimum," overruling
Harris. Id. at 2160. The Court emphasized that these facts were
elements that "necessarily form[] constituent part[s] of a new
offense," or, put differently, were "element[s] of a separate,
aggravated offense." Id. at 2162. As a result, the Court
explained, those aggravating facts must "be submitted to the jury
and found beyond a reasonable doubt." Id. at 2163.
III.
The Alleyne rule applies to cases pending on direct
appeal at the time it was decided. United States v. Harakaly, 734
F.3d 88, 94 n.4 (1st Cir. 2013). It is clear there was Alleyne
error here. See Burrage v. United States, 134 S. Ct. ___, ___
(2014) ("[T]he 'death results' enhancement . . . is an element that
must be submitted to the jury and found beyond a reasonable doubt."
(citing Alleyne, 133 S. Ct. at 2162-63)). Since Alleyne errors are
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of a constitutional dimension and Pena's claim of error is
preserved, "the government must prove that the error was harmless
beyond a reasonable doubt." Harakaly, 734 F.3d at 95 (quoting
United States v. Pérez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003))
(internal quotation mark omitted).
The government, to its credit, concedes that the Alleyne
error here is not harmless, and rightly so: without a proper
finding of "death resulting" by a jury, Pena would have been
subjected to a lower sentencing range. It is also clear that the
Alleyne error does not vacate the conviction, established by Pena's
guilty plea, on the drug charges. See United States v. Yeje-
Cabrera, 430 F.3d 1, 12-13 (1st Cir. 2005).
IV.
There is little precedent on the precise question
presented here. Both parties resort to broad principles.
Pena argues that we must remand the case to the district
court for it to do the resentencing, and that empaneling a
sentencing jury would be improper for several reasons. First, Pena
argues resentencing must be based on the elements of the crime to
which he actually pled guilty. He emphasizes that he did not plead
to "death resulting." The prosecution, he notes, did not object to
this more limited plea, and the court accepted the plea. He also
says he relied on the government's position in entering the plea.
Pena says that the guilty plea has changed his pre-plea situation
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in many ways and that the sentencing jury procedure the government
seeks would unfairly favor the government. At no time did he agree
to bifurcating the guilt stage from the sentencing proceedings, and
there was no order so bifurcating proceedings. In addition, in his
reply brief, Pena argues the government's procedure would violate
his Fifth Amendment double jeopardy rights, citing Ohio v. Johnson,
467 U.S. 493, 501 (1984). We discuss the double jeopardy concerns
below.
The government argues that fairness requires it be given
a chance to try again to prove "death resulting," this time to the
correct decisionmaker, the jury -- but only a "sentencing" jury.
It argues it should not be "penalized" for making the wrong guess
on where the Supreme Court would come out on this issue. It points
out that "[w]hile the [empaneling] of a sentencing jury is a
somewhat unusual procedure, it is far from unprecedented." It
notes that the question of guilt is often bifurcated from the
question of criminal forfeiture, citing United States v. Keene, 341
F.3d 78, 81 (1st Cir. 2003), and United States v. DesMarais, 938
F.2d 347, 349-50 (1st Cir. 1991). Likewise, it notes that capital
cases are routinely bifurcated into a guilt phase and a sentencing
phase, citing Sampson v. United States, 724 F.3d 150, 168 (1st Cir.
2013).
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A.
We begin with common ground. A sentence must be based
upon the crime of conviction. See Alleyne, 133 S. Ct. at 2162 ("It
is obvious, for example, that a defendant could not be convicted
and sentenced for assault, if the jury only finds the facts for
larceny . . . ."). The only conviction here results from Pena's
guilty plea. 7 It is also common ground that the government's
request is unusual, and the ordinary practice is to remand to the
district court for the judge to engage in resentencing. And unlike
with capital cases, see 18 U.S.C. § 3593(b), the parties here have
identified no specific statutory authorization for empaneling a
sentencing jury on remand under these facts.
The government argues that its position on a sentencing
jury is supported by opinions of the Third, Sixth, Seventh, and
Ninth Circuits, and one district court, in which those courts
approved the use of sentencing juries to remedy sentencing errors
after Apprendi. The government cites United States v. Booker, 375
F.3d 508, 514 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005); United
States v. Henry, 282 F.3d 242, 253 (3d Cir. 2002) (conviction based
on guilty plea); In re Figueroa, 463 F. App'x 99, 100 (3d Cir.
2012); United States v. Montiel-Sanchez, 171 F. App'x 599, 600 (9th
7 Consideration of other properly proven relevant conduct,
including other crimes, is appropriate at the sentencing phase,
see, e.g., United States v. Watts, 519 U.S. 148, 149 (1997) (per
curiam) (allowing consideration of acquitted conduct when properly
proven).
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Cir. 2006); United States v. Cooney, 26 F. App'x 513, 529 (6th Cir.
2002); and Figueroa v. United States, 2013 WL 499473, No.
7:13CV00038, at *1 (W.D. Va. Feb. 8, 2013). 8 We briefly discuss
these cases, which arose in circumstances different from those
presented here. We think the government's other cases are not
adequate to warrant a sentencing jury here.
The most serious discussion of the sentencing jury issue
is by Judge Posner in the Booker case, which arose in a different
context. There, Judge Posner predicted that the Sentencing
Guidelines as applied in that case would violate the Sixth
Amendment as interpreted in Blakely v. Washington, 542 U.S. 296
(2004). The court did not rule on whether the mandatory Guidelines
remained valid but ruled that if they did, "the judge can use a
sentencing jury." Booker, 375 F.3d at 515. 9 In this context, the
Seventh Circuit concluded that the defendant had a right to have a
jury determine both the quantity of the drugs he possessed and the
8 The government cites a published Ninth Circuit opinion,
United States v. Ameline, 376 F.3d 967 (9th Cir. 2004). This
opinion was withdrawn and replaced by another, United States v.
Ameline, 400 F.3d 646 (9th Cir. 2005), which did not comment on
whether empaneling a sentencing jury would be proper on remand.
9 Judge Posner, in that context, also commented:
There is no novelty in a separate jury trial with regard
to the sentence, just as there is no novelty in a
bifurcated jury trial, in which the jury first determines
liability and then, if and only if it finds liability,
determines damages. Separate hearings before a jury on
the issue of sentence is the norm in capital cases.
Booker, 375 F.3d at 514.
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facts underlying the determination that he obstructed justice,
unless the parties agreed on a sentence which did not require
judicial factfinding. 10
More importantly, Judge Posner anticipated some of the
problems inherent in the government's request in this case, as we
discuss further below. As Judge Posner explained:
Of course[, the sentencing jury] will not work
if the facts that the government would seek to
establish in the sentencing hearing are
elements of a statutory offense, for they
would then have to be alleged in the
indictment, and to re-indict at this stage
would present a double-jeopardy issue. We can
hardly attempt to resolve such issues on this
appeal; the parties have not briefed or argued
them.
Booker, 375 F.3d at 514. Although the indictment here did include
the "death resulting" allegations, from defendant's point of view,
the prosecution abandoned those allegations in the indictment when
it took the position that they were not elements of the crime.
The unpublished Ninth Circuit case is readily
distinguishable on its facts, as it did not involve any issue of
the district court's sentencing authority, but rather of the
court's refusal to allow the defendant to present certain evidence
during the sentencing phase of an already bifurcated jury trial.
Montiel-Sanchez, 171 F. App'x at 600. The unpublished Third
10 The Supreme Court ultimately handled the matter differently
than predicted, rendering the Guidelines system advisory, in
Justice Breyer's opinion in Booker. See Booker, 543 U.S. at 245.
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Circuit case did not comment on the validity of the sentencing jury
that had been empaneled, but merely held that the "extraordinary"
writ of prohibition was an improper vehicle for challenging the
sentence. In re Figueroa, 463 F. App'x at 100. And the
unpublished Sixth Circuit case did not require the district court
on remand to empanel a sentencing jury, but merely acknowledged
that it was possible to do so and that other options also existed.
Cooney, 26 F. App'x at 529. What remains is a single Third Circuit
case, United States v. Henry. In Henry, the defendant had
explicitly requested that the district court empanel a sentencing
jury after Apprendi was decided, before his sentencing. 282 F.3d
at 246. The Sixth Amendment right belongs to the defendant. See
U.S. Const. Amend. VI ("In all criminal prosecutions, the accused
shall enjoy the right to a speedy and public trial, by an impartial
jury . . . ." (emphasis added)); Gannett Co. v. DePasquale, 443
U.S. 368, 383 (1979) (explaining that Sixth Amendment public trial
right belongs to defendant, and citing as analogous the Sixth
Amendment rights to a jury trial and a speedy trial). Here, it is
the defendant who opposes such a jury.
Alleyne suggests the answer to our problem, but it does
not face this problem head-on, as our precise issue was not
presented. The Supreme Court in Alleyne remanded "for resentencing
consistent with the jury's verdict," which did not include the
aggravating factor. 133 S. Ct. at 2164. Admittedly, unlike here,
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the prosecution in Alleyne did ask the jury to find that the
firearm had been brandished and the jury declined to do so. But
that difference does not help the government's position here.
The Alleyne Court also determined that the aggravating
factor -- "brandishing" a firearm -- constituted an element of a
"separate, aggravated" crime and that the mandatory minimum it
triggered could not be imposed without a finding on proof beyond a
reasonable doubt. See id. at 2162. There is no dispute that the
"death resulting" here should similarly be viewed as an element of
a separate crime. Pena has not been convicted of this separate
crime, but only of the crimes for which he has entered and the
district court has accepted a guilty plea. An accepted guilty plea
is a conviction and, like a jury verdict, is conclusive. Kercheval
v. United States, 274 U.S. 220, 223 (1927). Moreover, the Court's
opinion in Alleyne did not turn on the jury's findings on its
verdict form, but on the fact that, in violation of the defendant's
Sixth Amendment rights, it was the judge who had made the
"brandishing" finding on a lesser standard of proof that led to the
higher mandatory minimum.
Decisions of the Courts of Appeals after Alleyne have
remanded for resentencing by the court. We are not aware of any
court that has been confronted with facts analogous to those here.
But in at least nine circuit court cases that have found reversible
Alleyne error, the sentence was vacated and remanded for
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resentencing by the district judge. 11 We are aware of no case, and
the parties have cited none, remanding for use of a sentencing jury
after a reversible Alleyne error.
Post-Apprendi cases are also instructive, because
"Alleyne is an extension of the Apprendi doctrine." Harakaly, 734
F.3d at 94. The remedy for an Apprendi error was usually a simple
remand to the district court for resentencing. This court remanded
in United States v. Bailey, 270 F.3d 83, 90 (1st Cir. 2001), in
which we found an Apprendi error that was not harmless. Even on
plain error review, several of our sister circuits likewise held
that a remand for resentencing by the district judge on the charge
of conviction was required. 12
11 See United States v. O'Neil, No. 12-2237, 2014 WL 26289
(8th Cir. Jan. 3, 2014); United States v. Jordan, 531 F. App'x 995
(11th Cir. 2013); United States v. DeLeon, No. 10-4064, 2013 WL
4850300 (4th Cir. Sept. 12, 2013); United States v. Donovan, Nos.
11-1843, 11-2163, 11-2450, 11-2055, 2013 WL 4792866 (6th Cir. Sept.
9, 2013); United States v. Claybrooks, 729 F.3d 699 (7th Cir.
2013); United States v. Mubdi, No. 10-5008, 2013 WL 4517026 (4th
Cir. Aug. 27, 2013); United States v. Lake, 530 F. App'x 831 (10th
Cir. 2013); United States v. Lira, 725 F.3d 1043 (9th Cir. 2013);
United States v. Lara-Ruiz, 721 F.3d 554 (8th Cir. 2013). We note
that Mubdi and Lake involved convictions by guilty pleas. In
fairness, we also note that there is no indication the government
raised in any of these cases the claim of entitlement to a
sentencing jury.
12 See, e.g., United States v. Doe, 297 F.3d 76, 93 (2d Cir.
2002) (on plain error review, remanding for resentencing by
district court "for exactly that charge to which [defendant] pled"
where defendant pled guilty to drug crimes involving unspecified
quantity but court had found quantity by a preponderance); United
States v. Campbell, 279 F.3d 392, 397, 402 (6th Cir. 2002) (on
plain error review, remanding for resentencing by district court
where defendant had pled guilty to drug charges with no specified
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B.
So far we have established that the request for a
sentencing jury here is unusual and has no clear support. We now
turn to why we think the request must be rejected. Pena's only
crimes of conviction are the two admitted drug offenses, without
any admission of guilt on "death resulting," and the sentence
should be based on those crimes. Pena's initial position was that
he was not guilty, thereby invoking his right to require the
government to prove the drug offenses beyond a reasonable doubt.
He altered that to a plea of guilty on the two drug charges only,
in reliance on the government's position. Pena thus gave up the
chance that the government would not be able to prove guilt; he
accepted guilt, and accepted he would be sentenced for that guilt.
Indeed, he has already been incarcerated for nearly two years
toward his sentence since entering the guilty plea; had he gone to
trial and been acquitted, he would not have served that time. We
see no inequity in holding the government to the position it took.
Absent an agreed upon reservation, we generally do not relieve
either side because its prediction about how sentencing will play
out turns out to be wrong.
quantity and district court had made quantity findings); United
States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (same);
United States v. Nicholson, 231 F.3d 445, 453, 455 (8th Cir. 2000)
(same, after jury conviction).
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In addition, the government's request raises a thicket of
potential and thorny double jeopardy issues, into which it is wiser
not to enter. The government's request also is likely to lead to
situations of withdrawal of guilty pleas. As such, the
government's request undercuts the finality of criminal
proceedings.
We touch on the double jeopardy concerns, and the need to
avoid deciding the issue if we are able. "The law of double
jeopardy is quite complicated . . . ." United States v. Pierce, 60
F.3d 886, 890 (1st Cir. 1995). It is true that double jeopardy
does not usually apply to convictions which have not become final.
See United States v. Ramirez-Burgos, 44 F.3d 17, 18 (1st Cir. 1995)
(observing that the Double Jeopardy Clause safeguards against a
second prosecution following a "final conviction" for the same
offense). If this conviction were final, the constraint of double
jeopardy would be clearer. It is also true that those double
jeopardy safeguards do not usually apply to resentencing. See
United States v. Dominguez, 951 F.2d 412, 416-17 (1st Cir. 1991).
But the effect of Alleyne and its predecessors is to preclude
certain sentences from being imposed unless the elements supporting
them have been proven to a jury beyond a reasonable doubt. The
Supreme Court has not yet dealt with the double jeopardy issues in
this context, much less in these transition cases where what was
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once thought to be a sentencing issue has been recognized instead
to be an element of a crime.
If the prosecution were now to reindict Pena for the
enhanced "death resulting" crime, it would run into double jeopardy
problems, as it would be seeking to reindict Pena with a greater
crime after a conviction and sentence for a lesser included
offense. See, e.g., Brown v. Ohio, 432 U.S. 161, 169 (1977). The
prosecution's argument here raises the risk of doing an end-run
around the Double Jeopardy Clause, by characterizing the jury as a
"sentencing" jury. If the government were to reindict, that jury
would not merely decide a sentence; it would first have to decide
whether the government had proved all the elements of the "death
resulting" crime beyond a reasonable doubt. Specifically, it would
have to decide whether the government had proved that Pena
"knowingly or intentionally" (1) manufactured, distributed,
dispensed, or possessed with intent to manufacture, distribute, or
dispense (2) a controlled substance (3) that was "100 grams or more
of a mixture or substance containing a detectable amount of
heroin," and (4) that death or serious bodily injury resulted from
the use of that controlled substance. See 21 U.S.C. § 841(a),
(b)(1)(B). 13
13 We refer to the elements of the crime charged in Count 1.
Count 2 would not require proof of quantity.
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The prosecution's proposed course of action here seeks to
end-run those requirements, and to obtain the benefit of the plea's
admissions to the essential elements of the two drug crimes, which
are also among the essential elements (the first three elements
listed above) of the aggravated "death resulting" crime. Indeed,
the prosecution's brief is explicit that the sentencing jury would
take the admissions of guilt from the plea for the other elements
and then decide only the "death resulting" issue. Under the
doctrine of constitutional avoidance, we do not decide the double
jeopardy issues associated with the government's request, but note
them and avoid them. See Am. Civil Liberties Union of Mass. v.
U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir.
2013).
Faced with that advantage gained by the government, the
defendant predictably could move to withdraw his plea. See United
States v. Allard, 864 F.2d 248, 250 n.3 (1st Cir. 1989) (adverting
to remedy of allowing defendant to withdraw guilty plea when the
"construction afforded an information or indictment . . . differ[s]
materially from a defendant's understanding of the charges at the
time he pled"). 14 Indeed, counsel for Pena at oral argument said
14 A defendant may not change a guilty plea after sentencing.
See Fed. R. Crim. P. 11(e). But here, the sentence must be vacated
and the case remanded. Under those circumstances, we assume,
without deciding, the Rule 11(e) prohibition on withdrawal of
guilty pleas would not apply. See United States v. Jerchower, 486
F. App'x 68, 71 (11th Cir. 2012).
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he would consider doing that, if he were to lose his appeal and the
government were to obtain a sentencing jury. 15
Thus, the government's proposed remedy of a sentencing
jury would increase incentives to withdraw pleas, which would also
undercut the public interest in certainty and finality. These
interests are particularly strong as to guilty pleas in our legal
system. See United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004) (observing the "particular importance of the finality of
guilty pleas"). As the Supreme Court stated in United States v.
Timmreck, 441 U.S. 780 (1979):
[T]he concern with finality [in the context of
collateral relief] . . . has special force
with respect to convictions based on guilty
pleas. Every inroad on the concept of
finality undermines confidence in the
integrity of our procedures; and, by
increasing the volume of judicial work,
inevitably delays and impairs the orderly
administration of justice. The impact is
greatest when new grounds for setting aside
guilty pleas are approved because the vast
majority of criminal convictions result from
such pleas.
Id. at 784 (quoting United States v. Smith, 440 F.2d 521, 528-29
(7th Cir. 1971) (Stevens, J., dissenting)) (internal quotation mark
omitted).
15 We do not, of course, address the outcome of any such
motion. We merely note that if the plea were withdrawn and the
prosecution unsuccessful, the nearly two years Pena has already
spent in prison following his plea could not be given back to him.
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The prosecution tries to avoid our conclusion by saying
both parties and the court contemplated there would be follow-on
proceedings and its hands are now being unfairly tied. We
disagree. There was no doubt there would be sentencing proceedings
after Pena's guilty plea. But if the prosecution contemplated that
it would be free to present the "death resulting" theory to a
sentencing-only jury if the Supreme Court ultimately held that
"death resulting" was an element of the crime, it was remarkably
silent on the issue. Had it articulated such a position, there may
well not have been a guilty plea.
V.
The district court's sentencing order is vacated and the
case remanded for resentencing by the district judge in accordance
with this opinion.
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