Supreme Court Opens Pandora’s Sentencing Box

On June 17, 2013 the U.S. Supreme Court upended 12 years of sentencing law and procedure when it decided Alleyne v. United States, 133 S.Ct. 2151 (2013). In Alleyne the defendant had been convicted of using a firearm in relation to a crime of violence - here robbery for which he was also convicted. Federal criminal law requires a 5 year mandatory minimum for this offense. The five year minimum is increased to a seven year minimum if the firearm used in relation to the offense was "brandished." Alleyne's jury verdict supported only that he had used the firearm. At his sentencing the judge found that he had also brandished the firearm thereby increasing the mandatory minimum sentence to seven years. Alleyne objected and argued that the jury was required to find he "brandished" the firearm beyond a reasonable doubt before he could be exposed to the longer seven year mandatory minimum. He appealed after the judge sentenced him to the seven year mandatory minimum.

Some 12 years ago in Harris v. United States, the Court had answered this precise question and held that judges had the authority to make findings of fact that exposed defendants to higher mandatory minimums. In that court's view, juries were required to make findings beyond a reasonable doubt only for any facts (other than prior convictions) that elevated a crime's maximum punishment. Simply put, a jury had to find facts beyond a reasonable doubt if they raised a crime's penalty ceiling, but a sentencing judge could find facts at a lesser more-likely-than-not standard if those facts only raised the penalty floor.

Some practical impacts of the Alleyne decision will be easily apparent. Prosecutors will now include in their Indictments allegations of any fact(s) that might subject the defendant to an increased mandatory minimum. Such "aggravating" facts are common in federal criminal law and typically involve circumstances under which the offense may have been committed. Two reported 9th Circuit cases have already relied on Alleyne to overturn sentences based on unconstitutional judicial fact-finding. In United States v. Lira, --- F.3d --- (9th Cir. 2013) the 9th Circuit overturned a ten year mandatory minimum sentence that was based on the judicial finding that the defendant had discharged a firearm "during and in relation to or in furtherance of" a drug trafficking offense. Alleyne was also cited in overturning an Arizona state death sentence on the grounds that the defendant therein had a 6th Amendment right to have a jury and not the judge decide whether or not mitigating facts existed such as to preclude the sentence of death. Murdaugh v. Ryan, ---F.3d--- (9th Cir, 2013).

Difficult and no doubt soon to be litigated issues will also arise. For example, what of defendants who were convicted in the preceding 12 years since Harris was decided? If their sentences were enhanced based upon the type of judicial fact-finding authorized by Harris but now disavowed in Alleyne, may they now return to court seeking to overturn their convictions and/or sentences? It seems unlikely, but there is language in Alleyne upon which creative defense attorneys could seize upon in making their arguments that Alleyne's rules should be applied retroactively. Indeed Justice Thomas, who penned most of the Alleyne decision has been vocally and visibly arguing that Harris was obviously wrongly decided from the get go.

Also, while Alleyne goes so far as to say that "Facts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt." It just as clearly states in various places that not all facts that increase a defendant's sentence within a prescribed range must be found by the jury. The problem is the Alleyne decision leaves it at that with no further clarity or guidance. Does Alleyne, as almost all assume it does not, apply to the fact of a prior conviction used to enhance a sentence? Does Alleyne, prevent judicial fact finding from aggravating a federal criminal defendant's sentencing guidelines range? If not, what is the precise relationship of Alleyne's holding and the rules used to enhance a defendant's Federal Sentencing Guidelines score?

Another Supreme Court case from this past October term may provide further ammunition to lawyers who wish to argue that any fact finding required to enhance a defendant's sentence under the Federal Sentencing Guidelines must be performed by a jury and to the reasonable doubt standard. In Peugh v. United States, 133 S.Ct. 2072 (2013), the Supreme Court was faced with the question of whether or not the Federal Ex Post Facto clause applies to changes in the Federal Sentencing Guidelines. The government had argued that since the Guidelines were no longer mandatory they no longer could be considered "laws" to which the Ex Post Facto clause applied. While acknowledging their advisory nature the Supreme Court went on to thoroughly demonstrate that the Guidelines are something more than simply advisory. While by no means mandatory, they are not simply advisory either. The Guidelines now occupy some new middle ground, as they in a very real sense serve as the functional basis for the majority if not all federal sentencing decisions. As recognized in Peugh, a Guidelines finding that a defendant's sentence should be enhanced has a very demonstrable real-world effect on that sentencing.

This analysis then begs the following question: "Does the broader language in Alleyne, stating simply that facts which enhance a defendants sentence must be submitted to a jury and proven beyond a reasonable doubt apply to Federal Sentencing Guidelines enhancements?" Defense lawyers should be arguing vigorously that it does.

The rapid and continuing evolution of the rules regarding federal criminal sentencing make it apparent that anyone facing federal criminal charges or sentencing must continue to push these arguments through counsel. After all, it took 12 years after Harris for the Court to realize it was mistaken and overrule itself in Alleyne. Alleyne's lawyers might not have objected to the seven year sentence on the ground that the issue had been settled over a decade ago. Kudos to them that they did.