United States v. McIvery ( 2015 )


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  •           United States Court of Appeals
    For the First Circuit
    No. 12-1257
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JAYSON ANTHONY McIVERY,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Richard G. Stearns, U.S. District Judge]
    Before
    Howard, Chief Judge,
    Selya and Lipez, Circuit Judges.
    William W. Fick, Assistant Federal Public Defender, with whom
    Federal Public Defender Office was on brief, for appellant.
    Dina Michael Chaitowitz, Assistant United States Attorney,
    with whom Carmen M. Ortiz, United States Attorney, was on brief,
    for appellee.
    November 20, 2015
    SELYA, Circuit Judge.   This is a case caught in a time
    warp.   The government indicted the defendant under a legal regime
    that was modified by the subsequent passage of the Fair Sentencing
    Act of 2010 (FSA), Pub. L. No. 111-220, 
    124 Stat. 2372
    , and the
    adoption of its implementing sentencing guidelines.     The district
    court accepted the defendant's guilty plea and — relying on its
    authority under Harris v. United States, 
    536 U.S. 545
     (2002), to
    find the drug quantities needed to calibrate the sentencing scales
    — proceeded to sentence the defendant.
    While this case was pending on appeal, the matter grew
    more complicated: the Supreme Court overruled Harris.    See Alleyne
    v. United States, 
    133 S. Ct. 2151
     (2013).      Buoyed by this sea
    change in sentencing law, the defendant argues, among other things,
    that the district court erred in imposing a mandatory minimum
    sentence and that its error is both structural and non-harmless.
    Although the legal landscape is pitted, we can see a
    clear decisional path.    We follow that path and, after careful
    consideration, we reject the defendant's asseverational array.
    Accordingly, we affirm.
    I.   BACKGROUND
    We start by delineating the anatomy and travel of the
    case.   In October of 2009, a federal grand jury sitting in the
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    District   of   Massachusetts   indicted   defendant-appellant   Jayson
    Anthony McIvery on one count of conspiracy to possess cocaine base
    (crack cocaine) with intent to distribute (count one) and two
    specific-offense counts of possession of crack cocaine with intent
    to distribute (counts two and three).      See 
    21 U.S.C. §§ 841
    (a)(1),
    846.    These charges stemmed from two sales of crack cocaine to a
    cooperating individual.     The first sale, charged in count two,
    took place on May 11, 2009, and involved 13.7 grams of crack
    cocaine; the second sale, charged in count three, took place on
    August 8, 2009, and involved 42.5 grams of crack cocaine.
    The indictment did not specify the precise drug amounts
    involved, instead stating that each of the three counts "involved
    five grams or more of a mixture and substance" containing cocaine
    base.    Under then-prevailing law, five grams was all that was
    needed to trigger a five-year mandatory minimum sentence pursuant
    to 
    21 U.S.C. § 841
    (b)(1)(B)(iii).
    In August of 2011, the government filed an information
    in accordance with 
    21 U.S.C. § 851
    (a)(1) indicating that it planned
    to seek a sentencing enhancement premised on the defendant's two
    prior drug-trafficking convictions.        This proposed enhancement,
    coupled with the drug quantities charged, exposed the defendant to
    a mandatory minimum sentence of ten years.     See 
    id.
     § 841(b)(1)(B).
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    The defendant originally maintained his innocence but,
    on September 29, 2011, pled guilty to all three counts.                  In the
    period between the indictment and the plea, Congress enacted the
    FSA, which elevated the quantity of crack cocaine required to
    impose a five-year mandatory minimum sentence to twenty-eight
    grams.    See United States v. Douglas, 
    644 F.3d 39
    , 40-41 (1st Cir.
    2011).    Revised sentencing guidelines implementing the FSA went
    into effect on November 1, 2010.           See 
    id. at 41
    .
    At   the    change-of-plea     hearing,      the   government   made
    pellucid that counts one and three carried a ten-year mandatory
    minimum    sentence     (a    statement    that    reflected    the    statutory
    mandatory   minimum,        doubled   because     of   the   section   851(a)(1)
    information).1      During the plea colloquy, the district court did
    not discuss with the defendant the exact amount of drugs sold on
    each occasion, though the government did specify the quantities
    involved in each of the two transactions.
    Prior      to    sentencing,   the    defendant    challenged    the
    applicability of the statutory mandatory minimum, arguing that
    1 For aught that appears, count two did not trigger any
    mandatory minimum sentence as the quantity of crack cocaine
    involved in that sale was less than twenty-eight grams. In this
    court, however, the parties treat the three counts as a unit, and
    we follow their lead.
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    attributing twenty-eight grams or more of crack cocaine to him
    would entail the use of a fact not charged in the indictment.            In
    other words, the defendant contended that because the indictment
    had not charged him with intent to distribute twenty-eight grams
    or more, no foundation existed for a mandatory minimum sentence.
    Nevertheless, his objection straightforwardly acknowledged that
    this argument was foreclosed by Harris, which had held that a fact
    not charged in an indictment still could trigger a mandatory
    minimum sentence.    See 
    536 U.S. at 568
    .         The defendant preserved
    his claim that Harris had been wrongly decided.
    The district court convened the disposition hearing on
    February 10, 2012.      The court did not explicitly address drug
    quantity   before   invoking    the   statutory   mandatory   minimum   and
    sentencing    the   defendant    to    concurrent    ten-year   terms    of
    immurement.   It is clear from the context, however, that the court
    held the defendant accountable for more than twenty-eight grams of
    crack cocaine.
    The defendant appealed.       During the course of briefing,
    the Supreme Court granted certiorari in Alleyne, and we stayed the
    appeal in this case.
    When deciding Alleyne, the Supreme Court revisited its
    decision in Harris and concluded that the decision was inconsistent
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    with the principles enunciated in Apprendi v. New Jersey, 
    530 U.S. 466
    ,   490   (2000),   which   had   held    that   any   fact   increasing    a
    statutory maximum sentence (other than a prior conviction) must be
    charged in the indictment and found by a jury.              See Alleyne, 
    133 S. Ct. at 2155
    .    The Court proceeded to overrule Harris, declaring
    that "[a]ny fact that, by law, increases the penalty for a crime
    is an 'element' that must be submitted to the jury and found beyond
    a reasonable doubt."     
    Id.
    At that point, we lifted the stay in this case and
    ordered supplemental briefing in light of Alleyne.               In that round
    of briefing, the defendant advanced several claims of error.                  We
    consider those claims below.
    II.    ANALYSIS
    There is no question that an Alleyne error occurred here.
    The drug quantity necessary to ground the mandatory minimum under
    the FSA was not specified in the indictment.               The only relevant
    question, therefore, is how to address this conceded error.
    The defendant principally asserts that the Alleyne error
    requires vacation of his sentence because it is not subject to
    harmless error review.         That assertion trips over this court's
    precedent.     In United States v. Harakaly, 
    734 F.3d 88
     (1st Cir.
    2013), cert. denied, 
    134 S. Ct. 1530
     (2014), the sentencing court
    - 6 -
    made   a   factual   finding,   pre-Alleyne,   that   the   defendant   had
    possessed a sufficient quantity of methamphetamine to necessitate
    a ten-year mandatory minimum sentence.         See id. at 92-93.        The
    court made this finding despite the fact that no drug quantity had
    been alleged in the indictment.      See id. at 90.
    On appeal, we took note that Alleyne had extended the
    principles of Apprendi to the context of mandatory minimums and
    looked to the standards of review applied to Apprendi errors to
    determine the appropriate form of scrutiny for Alleyne errors.
    See id. at 94-95.       We concluded that harmless error review was
    appropriate with respect to preserved claims of Alleyne error.
    See id. at 95; see also United States v. Pérez-Ruiz, 
    353 F.3d 1
    ,
    14, 17 (1st Cir. 2003) (applying harmless error review to a
    preserved Apprendi challenge).
    The defendant concedes — as he must — that harmless error
    review is available if Harakaly controls.         See United States v.
    Rodríguez-Vélez, 
    597 F.3d 32
    , 46 (1st Cir. 2010) (explaining that,
    with only narrow exceptions, in-circuit panels are bound by prior
    panel decisions closely on point); United States v. Wogan, 
    938 F.2d 1446
    , 1449 (1st Cir. 1991) (same).        But the defendant labors
    to distinguish Harakaly and, relatedly, strives to convince us
    that his case should instead be governed by our decision in United
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    States v. Zavala-Martí, 
    715 F.3d 44
     (1st Cir. 2013).                    We are not
    persuaded.
    To    begin,     the       defendant's   attempt      to   distinguish
    Harakaly is impuissant.             He presses the fact that in Harakaly —
    unlike this case — the indictment did not state a specific drug
    quantity.         This   is   a   distinction     without      a   difference:   the
    Harakaly court's rationale for harmless error review did not turn
    in any way on the presence or absence in the indictment of an
    allegation of a specific quantity of drugs.                    As the court made
    clear, a challenge to the indictment's failure to invoke the
    necessary drug quantities "establishes only that there was Alleyne
    error; it says nothing about whether that error was harmless."
    734 F.3d at 95-96.            The harmlessness of the error was instead
    determined by reference to the overwhelming — indeed, unchallenged
    — evidence that the defendant was responsible for a drug quantity
    sufficient    to    require       the    imposition   of   a   mandatory   minimum
    sentence.2    See id. at 96.
    2 In point of fact, the defendant here is arguably in a better
    position than the defendant in Harakaly. The indictment in this
    case put him on notice of a specific drug quantity calibrated to
    the mandatory minimum. In contrast, the indictment in Harakaly
    left the defendant to infer the applicability of the mandatory
    minimum from the facts of the charged conduct.
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    Nor does Zavala-Martí assist the defendant's cause.
    There, the court sentenced the defendant to life in prison even
    though   none   of   the   charges    of   conviction   authorized   such    a
    draconian sentence.        See 715 F.3d at 52.       Applying plain error
    review, we vacated the sentence and remanded for resentencing.
    See id. at 52-54.     The case simply did not involve the application
    of the drug-quantity revisions contained in the FSA.          Although the
    defendant was indicted for conspiring to distribute fifty grams or
    more of crack cocaine, id. at 51, the district court "explicitly
    disclaimed reliance on any amount of crack cocaine in imposing
    sentence," id. at 52.       And although we noted that the indictment
    alleged "a drug quantity and thereby set specific, statutorily
    prescribed limits on the sentence," id. at 53, we pointed out that
    datum only to emphasize that the error resulted from the district
    court's departure from the terms of the indictment (which was
    designed to set a range of appropriate sentences).            "[T]here was
    no flaw in the indictment resulting from a subsequent change in
    the law" but, rather, an error rooted in "disregarding . . . the
    grand jury's judgment."       Id.
    We   conclude    that,    rather   than   being   controlled     by
    Zavala-Martí, the case at hand is more akin to the situation that
    Zavala-Martí distinguished.          The indictment here charged a drug
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    quantity — "five grams or more" — that was sufficient to kindle a
    statutory mandatory minimum under existing law.                       A subsequent
    change in the law altered the needed quantity; and a further
    alteration in the legal regime — the Alleyne decision — called
    into question the district court's imposition of a mandatory
    minimum predicated on the new twenty-eight gram threshold.                       That
    was error, but the error flowed entirely from the subsequent change
    in law, in the same fashion as the error reviewed in Harakaly.
    Unlike     Zavala-Martí,     this   case     presents        no     concern      about
    undermining the role of the grand jury in setting the range of
    applicable    punishments:     applying      the    mandatory        minimum     here
    respects the grand jury's will as expressed in the indictment.
    In an effort to snatch victory from the jaws of defeat,
    the defendant suggests that Alleyne errors are structural and,
    thus, not amenable to harmless error review.             See, e.g., Neder v.
    United States, 
    527 U.S. 1
    , 8 (1999).           This suggestion is futile.
    Harakaly     unambiguously     holds   that        Alleyne        errors   are     not
    structural, see 734 F.3d at 94-95; see also United States v.
    Morris, 
    784 F.3d 870
    , 874 n.3 (1st Cir. 2015), petition for cert.
    filed, 
    84 U.S.L.W. 3087
     (U.S. Aug. 7, 2015) (No. 15-170), and we
    are bound to respect that holding.
    - 10 -
    Consistent with Harakaly, the appropriate standard of
    review is for harmless error.        Where, as here, the relevant error
    is of constitutional dimension and has been preserved below, the
    harmless error standard requires the government to "prove that the
    error was harmless beyond a reasonable doubt, or, put another way,
    that it can fairly be said beyond any reasonable doubt that the
    assigned error did not contribute to the result of which the
    appellant complains."    Pérez-Ruiz, 
    353 F.3d at 17
    .
    In     reviewing    Alleyne      errors   under    this    standard,
    "'overwhelming     evidence    of    the     requisite      drug    types   and
    quantities' generally serves as a proxy for determining whether
    the Alleyne error contributed to the result."               Morris, 784 F.3d
    at 874 (quoting Harakaly, 734 F.3d at 95) (collecting cases).
    "Overwhelming evidence" consists of "a corpus of evidence such
    that no reasonable jury could find, based on the record, that the
    crack quantity was less than that required for the mandatory
    minimum to apply."    Id.
    In this case, the government clears this hurdle with
    room to spare.       The district court accurately described the
    evidence of the defendant's guilt as "overwhelming," and the
    evidence that the offense conduct involved twenty-eight grams or
    more of crack cocaine is uncontested.           Indeed, at the change-of-
    - 11 -
    plea hearing, the defendant admitted that he had engaged in the
    charged transactions — and the second sale alone involved 42.5
    grams.    So, too, the presentence investigation report determined,
    without objection, that the offenses of conviction involved a total
    of 56.2 grams of crack cocaine.      On this record, a reasonable jury
    could not have found that the defendant was responsible for less
    than the requisite drug quantity.        See Harakaly, 734 F.3d at 96.
    To say more about the harmlessness of the error would be
    to paint the lily.         In the circumstances of this case, we are
    confident that the Alleyne error was harmless beyond a reasonable
    doubt.3
    Next, the defendant submits that his sentence resulted
    from a constructive amendment to the indictment.        We do not agree.
    Unlike   the   defendant's   principal   claims   of   Alleyne
    error, his constructive amendment claim was not raised below and
    was therefore forfeited.       See Puckett v. United States, 
    556 U.S. 129
    , 134 (2009).     Forfeited errors are normally reviewed only for
    plain error, see 
    id. at 135
    , and forfeited constructive amendment
    3 We acknowledge that the retrospective application of Alleyne
    to pending cases has not been uniform across the circuits. See,
    e.g., United States v. Lewis, 
    802 F.3d 449
    , 454-56 (3d Cir. 2015)
    (en banc). In the last analysis, however, we remain bound by our
    own precedent — and our determination in this case is faithful to
    that precedent.
    - 12 -
    claims are no exception, see United States v. Brandao, 
    539 F.3d 44
    , 57 (1st Cir. 2008).          Although the defendant asserts that the
    constructive amendment claim flows from the decision in Alleyne
    and therefore is not forfeited, he cannot avoid plain error review
    on that basis.         Even when the law changes between the time of a
    lower court ruling and the time a subsequent appeal is heard,
    objections      not    interposed      before    the   lower   court    are   deemed
    forfeited and are reviewed for plain error.                See Johnson v. United
    States, 
    520 U.S. 461
    , 466-70 (1997); United States v. Barone, 
    114 F.3d 1284
    , 1294 (1st Cir. 1997).
    Review for plain error is not appellant-friendly.                 Such
    review "entails four showings: (1) that an error occurred (2) which
    was   clear     or    obvious    and    which    not   only    (3)   affected    the
    defendant's substantial rights, but also (4) seriously impaired
    the   fairness,        integrity,      or   public     reputation      of   judicial
    proceedings."         United States v. Duarte, 
    246 F.3d 56
    , 60 (1st Cir.
    2001).    The defendant's attempt to satisfy this daunting standard
    falters    at    the     first   and    second     steps   (which      we   consider
    together).4
    4We think it likely that the defendant's attempt fails at
    every step of the analysis. But because an appellant bears the
    burden of satisfying all four facets of the plain error inquiry,
    see United States v. Vega Molina, 
    407 F.3d 511
    , 521 (1st Cir.
    - 13 -
    As we have stated, "[a] constructive amendment occurs
    when the charging terms of an indictment are altered, either
    literally or in effect, by prosecution or court after the grand
    jury has last passed upon them."   Brandao, 
    539 F.3d at 57
     (quoting
    United States v. Pierre, 
    484 F.3d 75
    , 81 (1st Cir. 2007)).    This
    construct is designed "to preserve the defendant's Fifth Amendment
    right to indictment by grand jury, to prevent re-prosecution for
    the same offense in violation of the Sixth Amendment, and to
    protect the defendant's Sixth Amendment right to be informed of
    the charges against him."   
    Id.
    Constructive amendments typically arise from a mismatch
    between the indictment's description of the charged offense and
    some other variable.   That variable may be the evidence offered
    in support of the charge, see, e.g., United States v. Muñoz-Franco,
    
    487 F.3d 25
    , 64 (1st Cir. 2007); a jury instruction, see, e.g.,
    United States v. Vizcarrondo-Casanova, 
    763 F.3d 89
    , 98-99 (1st
    Cir.), cert. denied, 
    135 S. Ct. 307
     (2014); Brandao, 
    539 F.3d at 56-57
    ; or the sentence imposed, see, e.g., United States v.
    Iacaboni, 
    363 F.3d 1
    , 7 (1st Cir. 2004).
    2005), it would serve no useful purpose here to go beyond the first
    two facets.
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    The defendant says that the critical gap in this instance
    is the lack of fit between the indictment and the sentence.                 But
    as our prior discussion demonstrates, there was no impermissible
    change   in     the   theory   of   the    case    remotely   resembling    the
    constructive amendments that we identified in other cases.                 See,
    e.g., Vizcarrondo-Casanova, 763 F.3d at 99; Brandao, 
    539 F.3d at 56-57
    ; Iacaboni, 
    363 F.3d at 7
    .           Here, an identical theory of the
    case persisted from the indictment phase through the sentencing
    phase.   The asserted inconsistency between the indictment and
    sentence resulted from intervening actions of Congress and the
    Supreme Court: any lack of fit between the indictment and the
    sentence is due to a change in the law, which modified the
    threshold amount of drugs needed to trigger the statutory mandatory
    minimums.
    The short of it is that the grand jury handed up an
    indictment that specified a drug quantity calculated to invoke the
    mandatory minimum under existing law.             Thus, the defendant was on
    ample notice from the very beginning of both the government's
    assertion that the statutory mandatory minimum applied and his
    potential exposure to that mandatory minimum.            Here, moreover, the
    indictment invoked a drug quantity that was sufficient under then-
    prevailing law to trigger a mandatory minimum sentence.                    This
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    awareness is of critical importance because "[a] primary objective
    of the rule against constructive amendment of indictments is to
    ensure defendants have notice of the charges they must defend
    against."          United States v. Dubón-Otero, 
    292 F.3d 1
    , 5 (1st Cir.
    2002).       And in all events, the quantity of drugs for which the
    defendant          was   sentenced     was   entirely    consistent     with     the
    indictment's description of the charged conduct as involving "five
    grams or more" of crack cocaine (emphasis supplied).
    The bottom line is that, in the circumstances of this
    case,       any    constructive      amendment   claim   is   dubious   at     best.
    Surely, then, there is no plain error.5
    This brings us to the defendant's final claim of error:
    his plaint that the government's failure to include his prior state
    5
    This case is distinguishable from United States v. Hackett,
    
    762 F.3d 493
    , 501-02 (6th Cir. 2014), cert. denied, 
    135 S. Ct. 1518
     (2015), in which a panel of the Sixth Circuit concluded that
    an Alleyne error constituted a constructive amendment. There, the
    defendant was charged with using or carrying a firearm "during and
    in relation to" a "crime of violence." Id. at 501 (quoting 
    18 U.S.C. § 924
    (c)(1)(A)). Although the defendant was found guilty
    of that offense, he was sentenced under a subsection of the statute
    — 
    18 U.S.C. § 924
    (c)(1)(A)(iii) — which applies only "if the
    firearm is discharged" during the commission of the offense. 
    Id.
    The defendant argued that the district court's decision to sentence
    him under the "discharge" subsection was an improper deviation
    from the terms of the indictment, and the court agreed. Id. at
    502. Here, unlike in Hackett, there is no mismatch between the
    charged conduct and the sentenced conduct.
    - 16 -
    convictions in the indictment was reversible error.           This plaint
    runs headlong into the Supreme Court's decision in Almendarez-
    Torres v. United States, 
    523 U.S. 224
     (1998), which held that prior
    convictions that aggravate a sentence are not elements of a crime
    that must be charged in the indictment and proved to a jury.           See
    
    id. at 228-35, 239
    .
    To be sure, the defendant construes Alleyne as eroding
    the   theoretical   underpinnings   of   Almendarez-Torres.      But   the
    Alleyne Court took pains to disclaim any intention of revisiting
    Almendarez-Torres, see Alleyne, 
    133 S. Ct. at
    2160 n.1, and
    Almendarez-Torres remains binding Supreme Court precedent.         Unless
    and until the Supreme Court overrules that decision, we must
    continue to adhere to it.     See United States v. Jiménez-Banegas,
    
    790 F.3d 253
    , 258 (1st Cir. 2015) (noting, post-Alleyne, that the
    Supreme Court "has never . . . disavowed" Almendarez-Torres);
    United States v. Rodriguez, 
    759 F.3d 113
    , 122 (1st Cir.) (same),
    cert. denied, 
    135 S. Ct. 421
     (2014); United States v. Carrigan,
    
    724 F.3d 39
    , 51 n.4 (1st Cir.) (same), cert. denied, 
    134 S. Ct. 668
     (2013); see also Rodriguez de Quijas v. Shearson/Am. Express,
    Inc., 
    490 U.S. 477
    , 484 (1989) ("If a precedent of this Court has
    direct application in a case, yet appears to rest on reasons
    rejected in some other line of decisions, the Court of Appeals
    - 17 -
    should follow the case which directly controls, leaving to this
    Court the prerogative of overruling its own decisions.").
    III.   CONCLUSION
    We need go no further.    For the reasons elucidated
    above, the judgment of the district court is
    Affirmed.
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