Filed: Oct. 10, 2014
Latest Update: Mar. 02, 2020
Summary: arguments, we vacate Barnes's sentence and remand for resentencing.5, An Alleyne error can be harmless if no reasonable jury hearing the same evidence that the sentencing judge heard could, hold the defendant responsible for a drug amount below the .effect on the 210-month prison term.
United States Court of Appeals
For the First Circuit
No. 11-1093
UNITED STATES OF AMERICA,
Appellee,
v.
JEREMY BARNES,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Mark L. Wolf, U.S. District Judge]
Before
Torruella, Howard, and Thompson,
Circuit Judges.
Judith H. Mizner, Assistant Public Defender, for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.
October 10, 2014
THOMPSON, Circuit Judge.
Overview
Jeremy Barnes is here again, this time because the
Supreme Court granted his certiorari petition, vacated our
judgment, and remanded his case for reconsideration in light of
Alleyne v. United States, 133 S. Ct. 2151 (2013). See Barnes v.
United States,
133 S. Ct. 2851 (2013). We asked for and received
supplemental briefing from the parties regarding Alleyne and heard
oral argument too. So the matter is teed up for decision. And
after summarizing the case's background and discussing the parties'
arguments, we vacate Barnes's sentence and remand for resentencing.
Background
Barnes pled guilty under a plea agreement to one count of
conspiring to distribute at least 50 kilograms of marijuana, in
violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), as well as
one count of distributing or aiding and abetting the distribution
of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.
§ 2. Sentencing in a case like this largely depends on the amount
of drugs involved. See, e.g., United States v. Acosta-Colón, 741
F.3d 179, 192 (1st Cir. 2013). For example, a § 841(a) violation
involving, say, 50 kilograms of marijuana activates no mandatory-
minimum prison sentence (but a 20-year maximum) and carries a
mandatory-supervised release term of 3 years (with a life maximum).
See 21 U.S.C. §§ 841(b)(1)(B) and 841(b)(1)(C); see also United
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States v. Nieves, 322 F.3d 51, 56 (1st Cir. 2003) (discussing
supervised release). But a violation involving 1,000 kilograms or
more of marijuana triggers a mandatory minimum of 10 years in jail
and 5 years of supervised release (with a mandatory maximum of life
for both). See 21 U.S.C. § 841(b)(1)(A). The plea agreement here
reserved Barnes's right to challenge any drug amount over 50
kilograms and the government's right to ask for a drug quantity
between 3,000 and 10,000 kilograms.
With all this in mind, what follows is a stripped-down
explanation of how the judge calculated Barnes's sentence:
Grouping the two counts together for sentencing purposes,
see USSG § 3D1.2(d), the judge found Barnes responsible for over
3,000 kilograms of marijuana — a finding made using the
preponderance-of-the-evidence standard that triggered the
mandatory-minimum sentence mentioned a second ago (10 years in
prison plus 5 years of supervised release). Noting that Barnes had
only copped to at least 50 kilograms of marijuana, defense counsel
had basically argued in a prehearing filing that a judge should not
get to impose a mandatory minimum that depends on facts neither
admitted by the defendant nor proved beyond a reasonable doubt.
But the judge rejected that argument at sentencing because then-
current law held that a defendant can get a mandatory minimum based
on a judicial drug-quantity finding under the preponderance test.
See United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003).
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Anyway, this drug-quantity finding helped yield a
guideline-sentencing range of 210-262 months in prison, the judge
explained (the other details of that calculation are irrelevant for
current purposes). The supervised-release range, the judge added,
"is 3 years to life." Both sides agreed with the judge's take on
the ranges. But a probation officer spoke up, saying "to the
extent the [judge] found that the drug weight was more than 1,000
kilograms, the supervised-release range would be 5 years." "Okay,"
the judge said. Defense counsel peeped no words of protests.
The prosecutor asked the judge to sentence Barnes to 210
months in prison. That would "capture[] the applicable 10-year
mandatory minimum," she said. She also recommended that the judge
impose a 3-year term of supervised release. But she said that she
"recognized that a 5-year —" before being cut off by the judge, who
said "[n]ow you're recommending 3 years." Correct, the prosecutor
replied.
When his turn to speak came, Barnes's counsel again said
that judges should not be able to determine drug quantity by a
preponderance of the evidence. The "current state of law" lets
judges do just that, the judge noted. Counsel agreed (he raised
the issue simply to preserve it for possible further review) and
then talked about Barnes's troubled history. The judge stopped him
and asked if "there is a 10-year mandatory minimum based on what I
found?" Barnes's lawyer answered "yes" and suggested that a "10-
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year mandatory minimum" prison stint was "sufficient but not
greater than necessary" to achieve the goals of sentencing. And
counsel quickly added that the judge, "pursuant to the minimum
mandatory, has to impose at least five years of supervised
release."
Ultimately, the judge sentenced Barnes to 210 months'
imprisonment and five years' supervised release.1 The judge
thought about giving him a "higher sentence." But "I don't usually
exceed the government's recommendation" if "there is a plea
agreement," the judge said. And he also found that the selected
sentence jibed with the sentencing factors in 18 U.S.C. § 3553(a)
— e.g., Barnes's personal history and characteristics, the
seriousness of the crime, the need for adequate deterrence, and the
need to protect the public. Significantly, in his written
statement of reasons for the sentence, the judge checked the box
indicating that he had imposed a "[m]andatory minimum sentence."
Barnes appealed, arguing (among other things) that drug
quantity must be treated as an element of the offense and thus
proved beyond a reasonable doubt. We affirmed because then-
controlling caselaw let a judge use a preponderance standard in
finding facts that increase a defendant's mandatory-minimum
1
The judgment shows that the judge gave him a 210-month
incarcerative term on the first count, a concurrent 60-month
incarcerative term on the second count, and a 60-month term of
supervised release.
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sentence. See Goodine, 326 F.3d at 32. Barnes sought certiorari.
A little later the Supreme Court held in Alleyne that most (but not
all) facts that increase statutory minimum penalties must (if the
defendant does not admit them) be proved beyond a reasonable
doubt.2
See 133 S. Ct. at 2161-63. Not surprisingly, the Court
"GVR'd" — granted certiorari, vacated the judgment, and remanded
the case — for further consideration in view of Alleyne.
Analysis
So here we are. Helpfully, the parties do not dispute
that the judge's drug-quantity calculation reflects Alleyne error.
Rightly so, because the judge reached the 1,000-plus kilogram
figure — the amount needed to trigger mandatory minimums — using a
preponderance standard.3 See United States v. Harakaly, 734 F.3d
88, 93-94 (1st Cir. 2013) (discussing Alleyne error). They also do
not dispute that an Alleyne error is of constitutional magnitude.
About this, they are right again. See United States v. Pena, 742
2
Alleyne did not change the preexisting rule that a judge may
find the fact of a prior conviction. See 133 S. Ct. at 2160 n.1;
see also United States v. Rodriguez,
759 F.3d 113, 122 (1st Cir.
2014).
3
Recently we held that no Alleyne error arises if "a
defendant's sentence is based entirely on [g]uidelines
considerations without changing the applicable mandatory minimum."
United States v. Ramírez-Negrón, 751 F.3d 42, 49 (1st Cir. 2014).
Neither the judge nor the parties there ever mentioned at
sentencing that a mandatory minimum was in play.
Id. at 50. The
government here does not make any Ramírez-Negrón-type claim,
telling us at oral argument that, unlike that case, Barnes's case
does involve Alleyne error.
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F.3d 508, 514 (1st Cir. 2014). And they do not dispute that Barnes
preserved his claim of Alleyne error regarding the 210-month jail
term — which they agree means that we must vacate his sentence
unless the government proves the error's harmlessness beyond a
reasonable doubt. Right they are. See United States v. Pérez-
Ruiz, 353 F.3d 1, 17 (1st Cir. 2003) (explaining that the
government must prove "beyond any reasonable doubt that the
assigned error did not contribute to the result of which the
appellant complains"); see also United States v. Melvin,
730 F.3d
29, 32 (1st Cir. 2013) (calling the government's burden here a
"heavy" one).
Two issues divide the parties, however. The first is
whether the Alleyne error involving the 210-month prison term is
harmless — the government says it is; Barnes says it is not. The
second is whether Barnes preserved the Alleyne error regarding the
5-year supervised-release term — the government says he did not,
and so argues plain-error review applies; Barnes says he did, and
so argues harmless-error review controls. We think Barnes has the
better of the arguments.4
4
Barnes also argues that the Alleyne error is structural,
requiring reversal even if everyone thinks it is harmless. He says
that his argument appears foreclosed by Harakaly, 734 F.3d at 94-
95, and raises it — without developing it in any meaningful way —
simply to preserve it for possible en banc or certiorari review.
So we need say no more about that issue.
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The Prison Term
For those keeping track, the prison term imposed — 210
months — is 90 months above the 10-year mandatory minimum. The
government pounces on this fact, insisting it shows the judge based
the jail sentence on guideline considerations, like the applicable
guideline-sentencing range and the relevant section 3553(a)
factors. The applicable mandatory minimum, in other words, "had no
practical effect" on the prison sentence that the judge chose, at
least in the government's mind. Ergo, the government contends, the
Alleyne error was harmless beyond a reasonable doubt. We view
matters quite differently, however. Here's why:
The key players at sentencing, recall, talked about
mandatory minimums. True, the probation officer did not use the
words "mandatory minimum," but she did advise the judge that for
1,000 kilograms or more of marijuana, "the supervised release range
would be 5 years" — which is the mandatory minimum under section
841(b)(1)(A). And if, as probation suggested, that amount
activated a mandatory minimum supervised-release term, then
everyone at sentencing could assume probation thought that amount
activated a mandatory minimum jail term too. The prosecutor did
use the words "mandatory minimum" hard on the heels of probation's
comment, telling the judge that the government's recommended prison
sentence of 210 months would "capture[] the applicable 10-year
mandatory minimum." The judge later used "mandatory minimum" lingo
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too, asking Barnes's lawyer whether "a 10-year mandatory minimum"
applied given the drug-quantity findings, to which counsel
responded "yes." All of this throws cold water on the government's
attempt to downplay the mandatory minimum's role at sentencing.
But wait, protests the government. The judge also said
there that he had actually considered giving Barnes a "higher
sentence." Surely that comment shows the mandatory minimum did not
affect the sentence selected, the government argues. Not quite.
Remember, the judge followed his "higher sentence" remark by
saying, in almost the same breath, that he decided not to jack up
the prison stay because he "usually" does not "exceed the
government's recommendation" in plea-agreement cases — a
recommendation, we repeat, that the prosecutor made while
explaining how a 210-month sentence "captures the applicable 10-
year mandatory minimum." Remember too that in his formal statement
of reasons (which judges must complete when sentencing defendants),
the judge indicated that he had handed out a "[m]andatory minimum
sentence." So the government's protest fails.5
5
An Alleyne error can be harmless if "no reasonable jury" —
hearing the same evidence that the sentencing judge heard — could
hold the defendant responsible for a drug amount "below the . . .
threshold[] triggering the mandatory minimum[]." Ramírez-Negrón,
751 F.3d at 51 n.8 (citing
Harakaly, 734 F.3d at 95-96). But the
government makes no argument like that here. And so we move on.
See, e.g., United States v. Politano,
522 F.3d 69, 75 n.5 (1st Cir.
2008) (holding that an argument never made on appeal is waived).
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The bottom line here is this. The government offers a
variety of theories why, in its view, the Alleyne error had no
effect on the 210-month prison term. But none proves the error's
harmlessness under our stiff test — i.e., none proves beyond a
reasonable doubt that the error did not "contribute" to the
complained-about sentence. See Pérez-Ruiz, 353 F.3d at 17.
Consequently we must vacate the prison component of Barnes's
sentence.
The Supervised-Release Term
And we must do the same with the supervised-release part
of Barnes's sentence too. That 5-year term, we remind the reader,
corresponds exactly to the statutory mandatory minimum. Faced with
this circumstance, the government pins its principal hope on
persuading us that the defense acquiesced to the 5 years. The
record, however, undercuts that theory.
Yes, as the government notes, defense counsel did not
object when the probation officer told the judge a 5-year
supervised-release term applied, assuming the judge found a drug
weight of at least 1,000 kilograms. And yes, as the government
also notes, defense counsel later told the judge that he had to
"impose at least five years of supervised release." But those
things happened after the defense lost the drug-quantity battle,
with the judge's findings activating mandatory minimums. Well, the
government says, when the judge handed down the sentence, the
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defense never asked him to explain whether (to quote its latest
brief) "the term was statutorily required or simply desirable."
Essentially, the government wants us to ignore everything that
preceded the sentence's imposition — e.g., the defense's fighting
and losing on drug quantity and the probation officer's then
telling the judge that 1,000 kilograms or more of marijuana (the
threshold for triggering a 5-year supervised-release term) made
Barnes eligible for at least 5 years of supervised release. And
that we will not do. Ultimately, then, this concatenation of
events kiboshes the government's forfeiture argument.
And with the forfeiture issue out of the way, the rest of
the analysis is easy. On the harmlessness question, considering
everything in context — with the talk of mandatory minimums in the
air at sentencing, with a check next to "[m]andatory minimum
sentence" on the judge's statement-of-reasons form, etc. — we
cannot say beyond a reasonable doubt that the Alleyne error did not
contribute to the complained-of supervised-release result. So we
must vacate that part of the sentence as well.
Final Words
Our work over, we vacate Barnes's sentence in its
entirety and remand the case for new sentencing proceedings
consistent with this opinion.
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