Crayton Concurrence Should Guide Litigation On Alleyne Retroactivity, Guideline Facts, And ACCA Procedures

In June, the Seventh Circuit joined other circuits in refusing to give retroactive effect to Alleyne’s holding that the Sixth Amendment’s jury trial right and reasonable doubt standard apply to facts that increase a mandatory minimum sentence. In United States v. Crayton, the majority held that Alleyne did not provide a basis for collateral relief from a 20-year mandatory minimum under the drug statute for death resulting from distribution. But the assumption-breaking concurring opinion by Judge Ann Claire Williams should provide guidance for our efforts in three cutting-edge areas for potential Supreme Court litigation:

• Alleyne’s holding on the reasonable doubt standard and mandatory minimum sentences should apply retroactively as both a procedural watershed rule and a substantive rule under Teague analysis, as signaled in Judge Williams’ concurrence;

• The reasonable doubt standard should apply to within statutory maximum sentences that, without guideline error, would be substantively unreasonable, as Justices Scalia, Thomas, and Ginsburg signaled in the 2014 dissent from denial of certiorari in Jones v. United States;

• Sixth Amendment trial rights and the Fifth Amendment right to grand jury indictment should apply to the sequence of prior convictions under the Armed Career Criminal Act (ACCA), as then-Chief Judge Wilkins signaled in his 2005 dissent in United States v. Thompson.

In each of these areas, the lower courts have been avoiding full application of governing Supreme Court authority on the Sixth Amendment. The lower courts’ feet-dragging on full application of the reasonable doubt standard in these three contexts is reminiscent of the reluctance to apply Taylor, which the Descamps decision corrected, and the reluctance to apply Apprendi, which the Booker decision corrected. By incorporating and building on Judge Williams’ analysis of Alleyne, we should be pushing lower courts to be faithful to controlling Supreme Court authority and, failing that, urging the Supreme Court to resolve the constitutional questions to benefit our clients.

Alleyne Retroactivity

Given the unanimity of superficial opinions finding Alleyne not to apply retroactively, Judge Williams’ concurrence is like the only clear-eyed person stating the obvious: the Emperor is wearing no clothes. The basic message is that the majority’s premise – the facts triggering the minimum do not constitute a new offense – is “simply not true.” As Judge Williams states, Alleyne made clear that “[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms part of a new offense,” adding emphasis to “new offense.” From there, the judge points out how decisions finding Apprendi non-retroactive got it completely wrong because Apprendi and Alleyne are not about sentencing: “They are about the accurate determination of a defendant’s guilt of a particular offense.”

Judge Williams’ analysis demonstrates why Alleyne meets the standard for a “watershed” new rule of constitutional criminal procedure under Teague. She places special emphasis on two Supreme Court rulings – Ivan V. and Hankerson – both of which held that the expansion of the reasonable doubt standard in Winship applied retroactively. In support of her position, Judge Williams provides an eye-opening history of Gideon to illustrate how lower courts have interpreted Teague too narrowly over the years, treating the right to counsel as the unique exemplar of a watershed rule, instead of an incremental expansion in the right to counsel, following numerous Supreme Court decisions in the same vein.

Ultimately, Judge Williams reluctantly concurred in the majority’s holding that Alleyne does not apply retroactively on the grounds that the Supreme Court has never found a new rule to meet the Teague standard: “However, I hope that the Supreme Court will find in its retroactivity jurisprudence space on the Gideon pedestal for other new rules, particularly those so important to our criminal justice system as the reasonable-doubt standard.”

While we’re preserving challenges to mandatory minimum sentences in cases on collateral review, we can also build on Judge Williams’ concurrence to blaze another path to review in lower courts and, if necessary, to the Supreme Court. Judge Williams’ quarrel with precedent in this area “is the characterization of Alleyne as a decision about sentencing, rather than guilt.” Justice Thomas’s opinion in Alleyne points out (and repeats six times in the course of the opinion) that, under 18 U.S.C. § 924(c), the facts that aggravate the mandatory minimum from five to seven to ten years are elements of the offense. At the first step of Teague retroactivity analysis, a new rule regarding the substantive scope of a crime – both on whether acts are punishable or what the punishment shall be – always apply retroactively. As with Bousley and Fiore, when the high court speaks regarding the definition of the offense, the new rule applies retroactively, so the lower courts should apply the new substantive law to ameliorate existing sentences.

Clemency, retroactive drug amendments, and Johnson have forced open long closed files. For the clients who win the sentencing reform lottery, all is well. For our clients who are serving mandatory minimum sentences that were never proved to a jury beyond a reasonable doubt, we should be litigating the retroactivity of Alleyne, asserting that both the substantive and procedural aspects of the Supreme Court’s decision apply retroactively.

Reasonable Doubt Requirement For Factors Within The Statutory Maximum

Judge Williams missive to the Supreme Court regarding the retroactivity of Alleyne brings to mind the 2014 dissenting opinion on denial of certiorari in Jones v. United States. Three justices, relying on Alleyne, found the Court’s precedent to unavoidably require that “any fact necessary to prevent a sentence from being substantively unreasonable – thereby exposing the defendant to the longer sentence—is an element that must be either admitted by the defendant or found by the jury. It may not be found by a judge.” Justice Scalia’s logic, joined by Justices Thomas and Ginsburg, starts with the same point made by Judge Williams about Alleyne referencing guilt, not sentencing. Because any fact that increases the penalty to which a defendant is exposed constitutes an element of a crime, a fact that would render a sentence substantively unreasonable is an element and must be found by a jury beyond a reasonable doubt or admitted by the defendant.

Before Jones, the Court identified in Rita the Sixth Amendment question created when courts impose sentences that, but for a judge-found fact, would be reversed for substantive unreasonableness. But the Court “left [that question] for another day.” The lower courts to date have often allowed judicial fact-finding to support an otherwise unreasonable sentence as long as it is within the statutory maximum. The lower court decisions cited in the Jones dissent that allow judicial fact-finding predate Alleyne, and none focus on the substantive elements of an offense.

The three dissenters in Jones are saying the Court should put up or shut up on what look like unconstitutional sentences: “We should grant certiorari to put an end to the unbroken string of cases disregarding the Sixth Amendment – or to eliminate the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.” Our clients need us to push the former position, both in direct representation and collateral attacks. We can argue that the intervening decision in Alleyne undermines the reasoning of previous cases in this area and, failing that, the Supreme Court should accept certiorari to bring the lower courts into conformity with the reasoning and logic of Supreme Court precedent.

The Rights To Grand Jury Indictment And Petit Jury Verdict On The Sequence Of ACCA Predicates

The Alleyne clarification of Apprendi should have special resonance for our ACCA litigation regarding Fifth and Sixth Amendment rights. In 2004, then-Chief Judge Wilkins of the Fourth Circuit filed a dissent in United States v. Thompson, expressing the view that the sequence of ACCA predicates necessary to trigger the mandatory minimum of fifteen years had to be alleged by the grand jury and proven to a jury beyond a reasonable doubt under the Fifth and Sixth Amendments. Judge Wilkins’ reasoning is impeccable: the “different occasions” requirements for the predicates under the ACCA constitute facts that increase the penalty for a crime beyond the prescribed statutory maximum, and, therefore, must be both proven beyond a reasonable doubt to a jury under Apprendi and found by a grand jury under Cotton. We have litigated and lost on this theory, both directly under the Constitution and as a required construction of the ACCA to avoid serious constitutional problems (the argument is elaborated in the memorandum found here).

The Alleyne opinion supercharges Judge Wilkins’ reasoning. Any fact that provides the basis for an increased mandatory minimum must be proved to the jury beyond a reasonable doubt. And any fact that increases the statutory maximum triggers one of the key purposes of a grand jury: to insulate the community from overly harsh charges that are not warranted by the facts. The sequence of prior convictions is a fact subject to dispute and mistake in the absence of procedural protections.

As Judge Wilkins reminded us, the Court in Apprendi questioned the exception for the existence of a prior conviction from Alemendarez-Torres and characterized the case as creating a “narrow” exception. The dates and sequence of prior convictions go beyond “the fact of a prior conviction,” thereby triggering the reasoning of Apprendi, as now clarified by Alleyne. Justice Scalia’s footnote in the Jones dissent signals the last layer of our argument: if the sequence of prior convictions is included in the Almendarez-Torres exception, the Court should revisit and reverse Almendarez-Torres, just as the Court did in Alleyne by revisiting Harris, bringing precedent on proof of mandatory minimum facts into line with the Court’s post-Apprendi Sixth Amendment jurisprudence.

In layering our arguments under the ACCA, remember that the Supreme Court in Johnson has just found the residual clause of this miserably written statute unconstitutionally vague. Johnson should strengthen our arguments for strong procedural pleading and proof requirements to trigger the harsh ACCA consequences.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon