United States v. McIvery

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
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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.
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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-
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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.
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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.
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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.
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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
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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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