Case o' The Week: Don't Devalue Lira - Apprendi and Mandatory Minimums
For over a decade we’ve waited for Apprendi to apply to facts that trigger mandatory minimum sentences in the Ninth.
Wait’s over. United States v. Lira, 2013 WL 3958250 (9th Cir. Aug. 2, 2013), decision available here.
Players: Decision by Judge Christen, joined by Judges Tashima and M. Smith.
|The Hon. Judge Morgan Christen|
Facts: Joseph Lira went to trial on charges that he used or carried firearms in furtherance of a drug trafficking offense, in violation of 18 USC § 924(c). Id. at *1. Discharging a gun in in relation to, or in furtherance of a drug crime carries a ten-year mandatory minimum sentence. Counts 1-3 were drug charges, Count 4 was the § 924(c) count, and Count 5 was (apparently) a § 922(g)(1) charge. Id. Lira was convicted of the drug charges, acquitted of the § 922(g), and convicted by the jury of Count 4: the § 924(c) count. Id. At sentencing, Lira got 262 months on the drugs counts, plus ten years for the mandatory minimum § 924(c) count. Id. The district court imposed the ten year sentence “based on a fact found by the district court by a preponderance of the evidence.” Id. (Specifically, the fact that the gun was discharged “during and in relation to or in furtherance” of a drug trafficking offense.). Id. Lira appealed the § 924(c) sentence on grounds not relevant to the holding. At the time of sentencing, Harris, 536 U.S. 545 (2002) was the controlling law. Id. In Harris, the Supreme Court “held that whether a defendant discharged a firearm under § 924(c)(1)(A) is a sentencing element that may be found by a judge by a preponderance of the evidence.” Id.
Issue(s): Whither Harris and the Ninth’s Harris line after Alleyne?
Held: “[T]he rule in Harris was reconsidered in Alleyne v. United States, 133 S. Ct. 2151 (2013) . . . and overruled. Alleyne held that facts that increase mandatory minimum sentences must be submitted to the jury and established beyond a reasonable doubt . . . [T]he sentence on Count IV must be vacated.” Id. (internal citations and quotations omitted).
Of Note: There is much to unpack from this brief little opinion. Note that the decision doesn’t mention whether the element of discharging a gun was alleged in the indictment and necessarily found by the grand jury. That’s a real factual question in this case, because only one of four witnesses offered admissible evidence that Lira actually discharged the gun. Id. Alleyne is thought of as a petit jury case, but think about Alleyne challenges to the indictment before trial (and in Rule 29 motions): we’ll have a little window to exploit where AUSAs will forget to allege elements creating mandatory minimum sentences in indictments.
How to Use: Drugs. Alleyne is a Section 924(c) case, but it is Section 841 (drug) mand-mins that plague the most number of cases. Does Alleyne change the Ninth’s law on drugs and mandatory minimums? This question has probably occurred to one of the panelists on Lira: Judge Tashima.
More than a decade ago, Judge Tashima was deeply involved in the fierce litigation over drug amounts as elements of the offense after Apprendi. That litigation ended in 2002 in the bitterly disappointing Buckland en banc decision. 289 F.3d 559 (9th Cir. 2002) (en banc). In 2004, Judge Tashma wrote United States v. Thomas, 355 F.3d 1191 (9th Cir. 2004). In Thomas, Judge Tashima tweaked the Buckland en banc victors a bit . Judge Tashima explained that because drug quantities were not separate elements according to Buckland, a defendant didn’t have to admit drug quantity at a plea. Id. at 1197 (“Thus, even where due process requires that a drug quantity allegation be pleaded in the indictment and proved to a jury beyond a reasonable doubt, a defendant can plead guilty to the elements of the offense without admitting the drug quantity allegation.”)
Does Alleyne now nullify Thomas? Let’s find out –run a Thomas plea without admitting drug weight with your friendly local AUSA. When the AUSA balks, and frets to the judge that drug weight is an element after Alleyne, use that transcript for your next Section 841 trial.
For Further Reading: Seth Waxman was the United States’ 41st Solicitor General. He has strong views on the cuts now devastating the federal defender system. Sequestration, he explains, threatens “to eviscerate this lauded [federal defender] program.” “This is not justice,” Mr. Waxman opines. For Mr. Waxman’s compelling editorial, visit the Baltimore Sun here.
Image of Judge Christen from http://farm8.staticflickr.com/7229/7337074222_6c965a98d4_z.jpg
Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org