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«On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF THE SENTENCING PROJECT AND THE AMERICAN CIVIL LIBERTIES ...»

-- [ Page 1 ] --

No. 11-9335

In the Supreme Court of the United States

ALLEN RYAN ALLEYNE,

Petitioner,

v.

UNITED STATES,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Fourth Circuit

BRIEF OF THE SENTENCING PROJECT

AND THE AMERICAN CIVIL LIBERTIES

UNION AS AMICI CURIAE IN SUPPORT OF

PETITIONER

FRANK M. DICKERSON III ALISON SIEGLER

CHARLES M. WOODWORTH Counsel of Record Mayer Brown LLP University of Chicago 71 S. Wacker Drive Federal Criminal Justice Chicago, Illinois 60606 Clinic (312) 782-0600 1111 E. 60th Street Chicago, Illinois 60637 (773) 834-1680 alisonsiegler@uchicago.edu Additional counsel on signature page i

TABLE OF CONTENTS

Page TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. HARRIS AND APPRENDI HAVE

CREATED AN IMPORTANT AND

PERSISTENT CIRCUIT SPLIT OVER

MANDATORY MINIMUMS IN DRUG

CASES.

A. Harris Has Consequences Beyond 18 U.S.C. § 924(c).

B. Lower Courts Disagree Over The Application Of Harris In Federal Drug Cases.

II. OVERRULING HARRIS WOULD

NECESSARILY RESOLVE THIS

CONFLICT WITH MINIMAL EFFECT ON

DRUG PROSECUTIONS.

A. A Decision In Favor Of Alleyne Necessarily Resolves The Circuit Split Over Mandatory Minimums In Drug Cases.

B. Requiring Drug Quantity To Be Pleaded And Proved To A Jury Poses A Minimal Burden On The System.

III.OVERRULING HARRIS IS CONSISTENT

WITH THIS COURT’S PRECEDENT, THE

STATUTORY STRUCTURE OF 21 U.S.C.

§ 841, AND SOUND SENTENCING POLICY.

ii TABLE OF CONTENTS—continued Page A. Harris Was Inconsistent With Apprendi When Decided, And Is Inconsistent With This Court’s Subsequent Jurisprudence.

B. Treating Drug Quantity As An Element For Mandatory Minimum Sentences Is Consistent With § 841(b)(1).

C. Treating Drug Quantity As An Element For Mandatory Minimum Sentences Reduces Racial Disparity In Sentencing.......27 CONCLUSION

iii

TABLE OF AUTHORITIES

Page(s) CASES Apprendi v. New Jersey, 530 U.S. 466 (2000)

Blakely v. Washington, 542 U.S. 296 (2004)

Cunningham v. California, 549 U.S. 270 (2007)

Gall v. United States, 552 U.S. 38 (2007)

Harris v. United States, 536 U.S. 545 (2002)

Jones v. United States, 526 U.S. 227 (1999)

Kimbrough v. United States, 552 U.S. 85 (2007)

Rita v. United States, 551 U.S. 338 (2007)

United States v. Booker, 543 U.S. 220 (2005)

United States v. Chicago, M., St. P. & P. R.

Co., 312 U.S. 592 (1941)

United States v. Clark, 538 F.3d 803 (7th Cir. 2008)

United States v. Clay, 376 F.3d 1296 (11th Cir. 2004)........... 5, 11, 12, 17 United States v. Cotton, 535 U.S. 625 (2002)

United States v. Darby, 312 U.S. 100 (1941)

iv TABLE OF AUTHORITIES—continued

–  –  –

United States v. Flowal, 234 F.3d 932 (6th Cir. 2000)

United States v. Gonzalez, 420 F.3d 111 (2d Cir. 2005)

United States v. Goodine, 326 F.3d 26 (1st Cir. 2003)

United States v. Graham, 317 F.3d 262 (D.C. Cir. 2003)............. 5, 10, 22, 24 United States v. Graham, 75 F. App’x 145 (4th Cir. 2003)

United States v. Keith, 230 F.3d 784 (5th Cir. 2000)............... 5, 11, 17, 26 United States v. Krieger, 628 F.3d 857 (7th Cir. 2010)

United States v. Leachman, 309 F.3d 377 (6th Cir. 2002)

United States v. Martinez, 277 F.3d 517 (4th Cir. 2002)

United States v. Mouling, 557 F.3d 658 (D.C. Cir. 2009)

United States v. O’Brien, 130 S. Ct. 2169 (2010)

United States v. Promise, 255 F.3d 150 (4th Cir. 2001)

United States v. Ramirez, 43 F. App’x 358 (10th Cir. 2002)

United States v. Serrano-Lopez, 366 F.3d 628 (8th Cir. 2004)

v TABLE OF AUTHORITIES—continued

–  –  –

United States v. Solis, 299 F.3d 420 (5th Cir. 2002)

United States v. Stark, 499 F.3d 72 (1st Cir. 2007)

United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001).................. 5, 12, 18, 32 United States v. Velasco-Heredia, 319 F.3d 1080 (9th Cir. 2003)

United States v. Washington, 558 F.3d 716 (7th Cir. 2009)

United States v. Webb, 545 F.3d 673 (8th Cir. 2008)............... 5, 11, 12, 17 United States v. Wilson, 244 F.3d 1208 (10th Cir. 2001)

STATUTES, RULES AND REGULATIONS

18 U.S.C. § 924(c)

18 U.S.C. § 2119

21 U.S.C. § 841

21 U.S.C. § 841(b)(1)

21 U.S.C. § 841(b)(1)(A)

21 U.S.C. § 841(b)(1)(A)(iii)

21 U.S.C. § 841(b)(1)(B)

21 U.S.C. § 841(b)(1)(C)

21 U.S.C. § 846

21 U.S.C. § 960

Fed. R. Crim. P. 11(b)(1)(I)

vi TABLE OF AUTHORITIES—continued

–  –  –





OTHER AUTHORITIES

Amy Baron-Evans & Kate Stith, Booker Rules, 160 U. PA. L. REV. 1631 (2012)

Joshua B. Fischman & Max M. Schanzenbach, Racial Disparities Under the Federal Sentencing Guidelines: The Role of Judicial Discretion and Mandatory Minimums, 9 J.

EMPIRICAL LEGAL STUD. 729 (2012)

Sonja B. Starr & M. Marit Rehavi, Racial Disparity in the Criminal Justice Process:

Prosecutors, Judges, and the Effects of United States v. Booker (U. Mich. L. & Econ. Research Paper No. 12-021, 2012)..... 28, 29 MICHAEL TONRY, SENTENCING MATTERS (1996)...... 33 United States Sentencing Commission, Federal Sentencing Statistics by State, District & Circuit for Fiscal Year 2011 (2011)

United States Sentencing Commission, Fifteen Years of Guidelines Sentencing: An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform (2004)

United States Sentencing Commission, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System (2011)

BRIEF OF THE SENTENCING PROJECT AND

THE AMERICAN CIVIL LIBERTIES UNION AS

AMICI CURIAE IN SUPPORT OF

PETITIONER

INTEREST OF THE AMICI CURIAE1

This amicus curiae brief is submitted on behalf of The Sentencing Project and the American Civil Liberties Union. Each organization has a special interest and expertise in criminal justice matters.

1. The Sentencing Project is a national nonprofit organization established in 1986 to engage in public policy research and education on criminal justice reform. The Sentencing Project has produced a broad range of scholarship assessing the effects of mandatory minimums on racial disparities in the American criminal justice system, and members of its staff have been invited to testify before Congress, the United States Sentencing Commission, and professional audiences on the topic. Because mandatory minimums are a primary catalyst for fundamental inequities and flaws in the American federal criminal court system, this case raises questions of fundamental importance to The Sentencing Project and its members.

2. The American Civil Liberties Union is a nationwide, nonprofit, nonpartisan organization with more than 500,000 members dedicated to the prinPursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person other than amici and their counsel made a monetary contribution to its preparation or submission. The parties’ letters consenting to the filing of this brief have been filed with the Clerk’s office.

ciples of liberty and equality embodied in the Constitution and this nation’s civil rights laws. The ACLU Criminal Law Reform Project is a division of the ACLU, whose goal is to put an end to excessively harsh crime policies that result in mass incarceration and stand in the way of a just and equal society. Since its founding in 1920, the ACLU has appeared before this Court in numerous cases, both as direct counsel and as amicus curiae. Because this case calls into question the meaning and scope of the jury trial right, both as a means to protect against arbitrary government action and to preserve public confidence in the criminal justice system, it raises questions of fundamental importance to the ACLU and its members.

SUMMARY OF ARGUMENT

1. Harris v. United States, 536 U.S. 545 (2002), must be overturned. Harris’s logic is impossible to reconcile with Apprendi v. New Jersey, 530 U.S. 466 (2000). These irreconcilable differences have resulted in a persistent circuit split in federal drug cases. The courts of appeals are divided over whether drug quantity must be charged in an indictment and proved to a jury beyond a reasonable doubt in order to impose a mandatory minimum sentence under 21 U.S.C. § 841. Seven circuits allow judges to set and increase mandatory minimum sentences after finding drug quantity by a mere preponderance of the evidence. Because such a factual finding raises the statutory maximum, this approach violates Apprendi. These courts have evaded this problem by mixing and matching mandatory minimums and statutory maximums, thus disregarding the statutory text.

2. Overturning Harris would eliminate the circuit split by requiring that drug quantity be charged in an indictment and proved to a jury beyond a reasonable doubt to set or increase a mandatory minimum.

3. Requiring drug quantity to be charged in an indictment and proved to a jury imposes a minimal burden on the system. A sample of indictments and verdict forms reveals that some United States Attorneys’ Offices in all twelve circuits charge drug quantity in their indictments. Prosecutors outside of the sample districts also likely charge drug quantity, because they must do so to request a sentence above the default statutory maximum.

4. Overruling Harris is consistent with this Court’s precedent, the structure of § 841, and sound sentencing policy. Harris was inconsistent with Apprendi when decided, and is inconsistent with this Court’s subsequent jurisprudence. Treating drug quantity as a sentencing factor is likewise inconsistent with the statute, which sets out independent ranges, not untethered mandatory minimum penalties. Finally, treating drug quantity as a sentencing factor is inconsistent with sound sentencing policy.

Mandatory minimum sentences are a significant driver of racial disparity in sentencing. Overruling Harris will mean that drug quantity is charged and proved in fewer cases and will thus lead to fewer mandatory minimum sentences. Because a higher percentage of black defendants are subjected to mandatory minimums, fewer mandatory minimum sentences will reduce unwarranted racial disparity in sentencing.

ARGUMENT

HARRIS AND APPRENDI HAVE CREATED

I.

AN IMPORTANT AND PERSISTENT CIRCUIT SPLIT OVER MANDATORY MINIMUMS IN DRUG CASES.

A. Harris Has Consequences Beyond 18 U.S.C. § 924(c).

Allen Ryan Alleyne petitions this Court to overrule Harris v. United States, 536 U.S. 545 (2002), by applying the holding of Apprendi v. New Jersey, 530 U.S. 466 (2000), to any fact that increases the range—whether the upper or lower bound—of punishment to which a criminal defendant is exposed.

Although Alleyne’s case arose under 18 U.S.C.

§ 924(c), that is not the only criminal statute that contains mandatory minimums. In 2010, 77% of federal convictions carrying a mandatory minimum were for drug trafficking offenses, and approximately two-thirds of drug offenders were convicted of an offense carrying a mandatory minimum. See U.S. Sentencing Comm’n, Report to Congress: Mandatory Minimum Penalties in the Federal Criminal Justice System 122, 153 (2011) (2011 Report), available at http://www.ussc.gov/Legislative_and_Public_Affairs/ Congressional_Testimony_and_Reports/Mandatory_ Minimum_Penalties/20111031_RtC_Mandatory_ Minimum.cfm.

B. Lower Courts Disagree Over The Application Of Harris In Federal Drug Cases.

Overruling Harris would resolve a deep circuit split over mandatory minimum sentences in federal drug cases and would resolve that split in a way that is most consistent with Apprendi.2 On one side of the split, four courts of appeals require drug quantity to be charged in an indictment and proved to a jury beyond a reasonable doubt before a court can impose a mandatory minimum sentence.3 On the other side of the split, seven courts of appeals interpret Harris to mean that when a drug quantity finding sets or increases a mandatory minimum penalty, but the sentence imposed does not exceed the unenhanced statutory maximum, drug quantity may be omitted from an indictment and found by a judge by a preponderance of the evidence.4

1. Courts have struggled to understand the constitutional requirements for imposing mandatory minimums in federal drug cases, and have had difficulty squaring Harris with Apprendi in that context.

Apprendi held that “any fact that increases the maximum penalty for a crime beyond the prescribed statutory maximum must be” “charged in an indictThe circuit split implicates drug cases arising under 21 U.S.C.

§§ 841, 846, and 960.

See United States v. Gonzalez, 420 F.3d 111, 123, 120–23 (2d Cir. 2005); United States v. Martinez, 277 F.3d 517, 528, 530 (4th Cir. 2002); United States v. Velasco-Heredia, 319 F.3d 1080, 1085–87 (9th Cir. 2003); United States v. Graham, 317 F.3d 262, 273–75 (D.C. Cir. 2003).

See United States v. Goodine, 326 F.3d 26, 33 (1st Cir. 2003);

United States v. Keith, 230 F.3d 784, 786–87 (5th Cir. 2000);

United States v. Leachman, 309 F.3d 377, 382–83 (6th Cir.

2002); United States v. Washington, 558 F.3d 716, 719 (7th Cir.

2009); United States v. Webb, 545 F.3d 673, 677–78 (8th Cir.

2008); United States v. Ramirez, 43 F. App’x 358, 360 (10th Cir.

2002); United States v. Clay, 376 F.3d 1296, 1301 (11th Cir.



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