Reconciling ceilings and floors: Alleyne v. United States
on Jun 17, 2013 at 9:39 pm
If at first you don’t succeed, try, try again. That would seem to be the lesson from the Court’s decision in Alleyne v. United States, which today resolved a decade-old controversy regarding the constitutional distinction between two kinds of sentences: mandatory minimums and statutory maximums.
Congress uses a variety of devices to constrain judges’ sentencing discretion. One method is to define a maximum punishment allowed by law, but to permit that maximum to be increased where certain facts are shown. For instance, Congress frequently authorizes higher maximum penalties for those who possess or sell illegal drugs – the greater the quantity, the higher the maximum sentence a judge may lawfully apply. A second method constrains the judge’s discretion by requiring the judge to impose at least a specified minimum sentence under certain circumstances. For example, federal child exploitation laws calibrate the minimum sentence to be applied to a sexual predator based upon the age of the victim – the younger the victim, the longer the mandatory minimum. These kinds of floors and ceilings have many critics and fans. From the legislature’s perspective, they provide predictability and uniformity with respect to the sentences applied to particular classes of defendants; judges, however, generally view these provisions as depriving the judiciary of the discretion necessary to tailor a sentence to the specific characteristics of the offender.
Since its Apprendi v. New Jersey decision in 2000, the Court has granted defendants the right under the Sixth Amendment to demand that a jury find any and all facts – using the “beyond a reasonable doubt” standard – that could enhance a statutory maximum sentence. Apprendi held that any fact which increases a defendant’s maximum sentence is considered an “element” of the criminal offense, and that the Sixth Amendment requires all offense elements to be proven to a jury beyond a reasonable doubt.
Yet the Court has simultaneously maintained that a defendant has no right to insist on similar jury findings for facts that trigger mandatory minimums. Under its 2002 decision in Harris v. United States, the Court has permitted sentencing floors to be triggered by a judge’s factual findings using a “preponderance of evidence” standard. The Harris Court reasoned that Apprendi’s rule applied only to statutory ceilings, not floors, because only the former expose a defendant to a longer sentence than the law would otherwise permit. In other words, what the Harris Court found significant was that a mandatory minimum is likely always to be lower than the maximum sentence the judge could lawfully impose. Accordingly, only those facts that authorize the maximum sentence are “essential” elements of the offense that must be proven to a jury beyond a reasonable doubt. .
Harris was a five-to-four decision that has been long been criticized for its seeming inconsistency with the constitutional rule in Apprendi. The five-member majority in Harris included Justice Breyer, who explained in his separate concurrence that his vote was based on his inability “yet [to] accept [Apprendi’s] rule,” rather than his agreement with the proposition that a sentencing floor is constitutionally distinct from a sentencing ceiling. As Apprendi was reinforced and applied to new contexts in the dozen years after it was decided, observers increasingly asked whether Justice Breyer’s rationale in Harris had withstood the test of time. Raising precisely that question, defendants have repeatedly, and until today unsuccessfully, asked the Court to overrule Harris over the past several years.
Enter Alleyne. Alleyne’s case arose out of a robbery in which he and an accomplice robbed a local store’s daily deposits from a manager who was driving the deposits to the bank. The duo tricked the manager into stopping his car, after which Alleyne’s accomplice walked up to the car, pulled out a gun, pushed it up against the manager’s neck, and demanded the deposits. The manager surrendered the money, and Alleyne drove away with his accomplice from the scene of the crime.
Alleyne was charged in federal district court with two crimes: one count of robbery affecting interstate commerce, and one count of “using or carrying a firearm in relation to a crime of violence.” The latter offense, which is found in federal law at 18 U.S.C. § 924(c)(1)(A), is often referred to as a “924(c)” charge. Congress has provided three levels of mandatory minimum sentences for Section 924(c) offenses. The baseline mandatory minimum is five years, but it moves up to seven years if the firearm was “brandished” during the course of the offense, and ten years if the firearm is “discharged” during the same. This offense is precisely the same one that was at issue in Harris.
The verdict form asked the jury whether Alleyne had “used or carried a firearm during and in relation to” the robbery, and whether he had “brandished” the firearm in connection with the robbery. The jury found beyond a reasonable doubt that Alleyne had used or carried a firearm in connection with the robbery, but made no findings with respect to brandishing. The presentence report, however, recommended a seven-year sentence based on the fact that a firearm was “brandished” during the offense. Conceding that Harris was controlling, Alleyne nevertheless objected that the trial court’s enhancement of his sentence based upon a fact not found by the jury violated his Sixth Amendment jury trial rights under Apprendi and that Harris should be overruled.
The district court easily rejected Alleyne’s Sixth Amendment claim under Harris, which had involved the same constitutional objection to the same provision of Section 924(c). Relying on Harris, the district court held that it could impose the seven-year mandatory minimum required by the “brandishing” provision of Section 924(c) without jury findings, and based on a preponderance of the evidence, because Alleyne’s ultimate sentence fell below the maximum sentence of life in prison that is permitted by law.
The Fourth Circuit affirmed on appeal. In its brief opposing certiorari, the Solicitor General urged the Court to deny Alleyne’s petition, in part, by emphasizing the repeated number of unsuccessful petitions over the past several years that had asked the Court to overrule Harris. The Court, however, granted certiorari on precisely that question.
The criminal defense bar’s persistence was rewarded. In a five-to-four decision by Justice Thomas (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), the Court decided that Harris could not be reconciled with Apprendi, and accordingly held that Alleyne’s seven-year mandatory minimum sentence violated the Sixth Amendment because the question of brandishing was never submitted to the jury. Justice Thomas’s opinion explained that the history of the Sixth Amendment and the general principle applied in Apprendi make it “impossible to disassociate the floor of a sentencing range from the penalty affixed to the crime.” The Sixth Amendment requires a jury to find all facts that fix the penalty range of a crime. And, contrary to what the Court held in Harris, the mandatory minimum is just as important to the statutory range as is the statutory maximum. Just as the statutory maximum limits a judge’s discretion by capping the sentence, a mandatory minimum accomplishes the same objective by precluding the judge from imposing a lower sentence. Thus, sentencing ceilings and floors are “[b]oth kinds of facts [that] alter the prescribed range of sentences to which a defendant is exposed” and hold the potential to increase a defendant’s punishment above that which a judge might otherwise impose. Applying Apprendi’s rule, the Court therefore vacated Alleyne’s sentence and remanded the case for resentencing in line with the jury’s verdict.
As was the case in Harris, Justice Breyer provided the pivotal fifth vote by concurring in part and in the judgment. His concurrence reiterated his belief that Apprendi was wrongly decided, but explained that because “Apprendi has now defined the relevant legal regime for an additional decade… the law can no longer tolerate the anomaly that the Apprendi/Harris distinction creates.” Justice Sotomayor’s concurrence (joined by Justices Ginsburg and Kagan) defended the majority against charges, chiefly raised by Justice Alito’s dissent, that stare decisis required the Court to adhere to Harris. The Chief Justice (joined by Justices Scalia and Kennedy) also dissented, advancing similar arguments to those advanced by the Harris majority.
Alleyne is a significant case in the Apprendi line. Even opponents of the decision would likely concede that the decision provides additional consistency to the Court’s Sixth Amendment jurisprudence. Alleyne, moreover, demonstrates that at least one of Apprendi’s most vocal critics, Justice Breyer, is now convinced of the doctrine’s staying power, though it remains to be seen how that shift will affect future cases. As a practical matter, prosecutors will now have to submit additional facts to juries before they can ask judges to apply a wide range of mandatory minimum sentences prescribed by federal statutes. And the criminal defense bar may take some comfort in the knowledge that repeating an oft-denied request to overrule one of the Court’s precedents is not always a dead end.