Monday, June 24, 2013

Alleyne v. United States: An Element By Any Other Name...

The Supreme Court had decided US v. Alleyne
In Alleyne v. United States, the Supreme Court dropped the biggest bombshell on criminal sentencing since Booker in 2005. The holding is relatively simple, overruling the 2002 case Harris v. United States to find that any fact which increases the minimum sentence for a crime must be proved to a jury beyond a reasonable doubt and cannot be found by a judge on a preponderance standard. This renders current federal sentencing procedure unconstitutional and invalidates the sentencing schemes in a large number state jurisdictions. It's an important decision that has been a long time coming, but it leaves some big questions unanswered.


The Facts of Alleyne

I discussed the facts and relevant case law at some length in an earlier post and you can read that for more details. The basic facts are as follows: Two men robbed a store manager who was taking cash to the bank. One of the robbers stood outside his car pretending it was broken down. He flagged down the the manager who stopped to help. The robber pulled a gun, took the money, returned to the passenger side of his car and was driven away. The victim never saw the driver and the man with the gun was never caught. The prosecution believed that Allen Alleyne was the get away driver and he was charged in a Virginia Federal court with two crimes: (1) robbery affecting Interstate commerce, and (2) using, carrying or brandishing a firearm during a crime of violence.

The Jury convicted Alleyne on both counts, but a special verdict form asked them to determine whether he brandished the weapon and they found that he did not. At sentencing, the judge imposed a 46 month sentence on the robbery, but also found, by a preponderance of the evidence, that Alleyne knew or should have known that his accomplice would display a gun. That's enough to trigger a brandishing enhancement and a mandatory minimum 84 months consecutive to the 46. The total sentence of 130 months did not exceed the statutory maximum. The defense appealed to the Fourth Circuit arguing that the process violated Alleyne's right to a jury trial and to proof beyond a reasonable doubt. The sentence was affirmed there. The Supreme Court has now vacated.

The Supreme Court Opinion

In 2000, the Court decided Apprendi v. New Jersey and held that facts which increase the maximum sentence must be submitted to the jury for proof beyond a reasonable doubt. The question in Alleyne was, can judicially found facts be used to trigger a mandatory minimum sentence that is still below the statutory maximum? The exact issue was considered right after Apprendi in in the 2002 case of Harris v. United States. That case also involved the seven year brandishing enhancement, but there, the court refused to extend Apprendi, holding that there was no sixth amendment violation in using judicially found facts to trigger minimum sentences.

Today that's all changed. Thomas, joined by Ginsberg, Kagen and Sotomayor, states the holding concisely in the first few lines of his majority opinion.
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... Mandatory minimum sentences increase the penalty for a crime. It follows, then, that any fact that increases the mandatory minimum is an “element” that must be submitted to the jury. Accordingly, Harris is overruled. Slip p. 1
The court reasons that facts which have such a significant impact on the sentence are effectively elements of of a distinct, more serious offense and the sixth amendment therefore requires that they be submitted to the jury. On appeal, the government argued that, since the total sentence was less than the maximum, Alleyne could well have received the same term with or without the brandishing. They argued that the factual finding does not have a substantial enough impact on the sentence to be "elemental". The majority rejected this argument reasoning that:
because the fact of brandishing aggravates the legally prescribed range of allowable sentences, it constitutes an element of a separate, aggravated offense that must be found by the jury, regardless of what sentence the defendant might have received if a different range had been applicable. Slip p. 14
Thomas, who wrote the Harris dissent, here writes a simple opinion that states the holding and reverses Harris. He cites to his own Harris dissent six times by my count and also quotes language from Breyer's concurrence in that case. Breyer agreed with the Harris holding, but only because he found no sixth amendment problem with judicial sentencing factors whether they increase the maximum (he dissented in Apprendi) or the minimum. He argued persuasively, however, that Harris was not logically distinguishable from Apprendi and that, while the result was right, the majority rationale was wrong.

It is interesting then that Justice Breyer concurred with the Alleyne majority and provided the decisive 5th vote. Though he fought this outcome at every turn, Breyer has finally capitulated to the Apprendi rationale and cast his vote to harmonize the Harris issue with that holding. As he writes in page 2 of his slip concurrence:
At the very least, the [6th] Amendment seeks to protect defendants against “the wishes and opinions of the government”... And, that being so, it seems to me highly anomalous to read Apprendi as insisting that juries find sentencing facts that permit a judge to impose a higher sentence while not insisting that juries find sentencing facts that require a judge to impose a higher sentence.
Scalia foreshadowed this outcome when he said of Breyer during the Alleyne oral argument: "Apprendi is so bad, he wants to extend it!"

So What Facts Must Go to the Jury?


Clearly, the holding has limits, and the majority recognizes as much: "Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury." Slip p. 15. But the opinion never really nails down what exactly counts as "any fact which by law increases the penalty for a crime." What about offense conduct, like possessing a knife during a robbery? The knife triggers no mandatory minimum sentence but it does increase the offense level from 20 to 23 and moves the bottom end of the guideline range from 33 up to 46 months. So does the knife need to go to the jury or can the judge find that fact at sentencing?

Interestingly, the Supreme Court started to answer this question in Peugh v. United States, decided one week before Alleyne. There, the court found that the Sentencing Guidelines are "law" for ex post facto purposes and a retroactive increase in the guideline range is unconstitutional. The unanimous court considered procedural rules and empirical data, to find that, though no longer mandatory, "the [guideline] range is intended to, and usually does, exert controlling influence on the sentence that the court will impose." Slip p. 14. Though an increase in the guideline sentencing range does not mandate a higher sentence, it does create a "sufficient risk of a higher sentence to constitute an ex post facto violation." Id. at 13. So it seems there's an argument that all offense conduct which increases the offense level must go to the jury. Sounds like good fodder for a circuit split.

Retroactive Application

Another big issues is, will Alleyne be applied retroactively? If it is, many thousands of sentences would be under attack. The discussion must consider the retroactive application test announced in Teague v. Lane and that test was taken up earlier this term in Chaidez v. United States. There the court refused to apply Padilla v. Kentucky retroactively; the good news is that the opinion pulls together most of the relevant language:
Teague makes the retroactivity of our criminal procedure decisions turn on whether they are novel. When we announce a "new rule," a person whose conviction is already final may not benefit from the decision in a habeas or similar proceeding…Only when we apply a settled rule may a person avail herself of the decision on collateral review."[A] case announces a new rule," Teague explained, "when it breaks new ground or imposes a new obligation" on the government. "To put it differently," we continued, "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." And a holding is not so dictated, we later stated, unless it would have been "apparent to all reasonable jurists."…But that account has a flipside. Teague also made clear that a case does not "announce a new rule, [when] it `[is] merely an application of the principle that governed'" a prior decision to a different set of facts. Chaidez Slip p. 3-4
We can consider the Teague factors as applied to the Alleyne rule:
  1. Does it place a new obligation on the government? Well, kinda. Now they need to present more evidence to the jury and must meet a higher burden. But then again, they don't need to prove anything new, they just need to present the proof to the jury rather than the judge.
  2. Is it dictated by precedent? The answer in one sense is "yes." The 2000 decision in Apprendi, when correctly applied, creates the Alleyne result, the problem is that Harris got it wrong for 11 years, that is why it is now overruled. Then again, Harris was good law for over a decade and it's holding dictated the opposite result, so maybe the answer is "no"?
  3. Was the Alleyne rule "apparent to all reasonable jurists"? This is a difficult one too. Defense attorneys always thought Harris was a travesty, but prosecutors had grown fond of it. I guess the question is, do you find defense lawyers or prosecutors more reasonable? If the answer is a tie, keep in mind that the Supreme Court just sided with the defense.
  4. Is Alleyne just the "application of the principle that governed a prior decision to a different set of facts"? Well yeah, it just applies Apprendi's logic to factors that increase the minimum sentence, even though it had previously been applied only to facts that increase the maximum.
On balance, there seems to be a good argument for retroactivity, but practical roadblocks inherent in federal post conviction procedure could really screw things up for those serving unconstitutional sentences imposed years ago. There are sure to be other unanswered questions and unintended consequences. It's interesting to think about how the decision will impact federal plea bargaining and sentencing hearing procedure. Jury instructions and verdict forms will need a close look, and some new drafting. As the issues work through, we may find that the holding means more than originally thought. The bottom line is that Alleyne is cause for celebration; it's been a long time coming, but a change finally came.