APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO. (D.C. No. 1:06-CR-00270-REB-1).
John M. Tanski, Axinn, Veltrop & Harkrider LLP, Hartford, CT, for Defendant-Appellant.
Michael C. Johnson, Assistant United States Attorney (John F. Walsh, United States Attorney, with him on the brief), Denver, CO, for Plaintiff-Appellee.
Before LUCERO, BALDOCK, and HOLMES, Circuit Judges.
BALDOCK, Circuit Judge.
For this appeal, we must decide whether Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), allows a district court to enhance a criminal defendant's Sentencing Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity finding greater than what the jury found at trial. We hold that, so long as the court does not use its own drug quantity finding to alter the defendant's statutory sentencing range, such an enhancement is entirely consistent with Alleyne. Here, nothing indicates the trial court altered Defendant Timothy Cassius's statutory sentencing range in any way, so the court did not contravene Alleyne. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
To best understand Alleyne, one must go back at least to McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986). There, the Supreme Court first attempted to distinguish the " elements" of a crime, which must be found by a jury beyond a reasonable doubt, from mere " sentencing factor[s]," which are " facts that are not found by a jury but that can still increase the defendant's punishment."
Alleyne, 133 S.Ct. at 2156-57 (quoting McMillan, 477 U.S. at 86). In McMillan, the Court held that a fact was not an element just because it created or increased a mandatory minimum sentence.
McMillan, 477 U.S. at 80-93. As such, Pennsylvania did not violate the Constitution when it imposed mandatory minimum sentences based on trial courts finding, by a mere preponderance of the evidence, that various defendants " visibly possessed a firearm" while committing certain felonies. Id.
">In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), however, the Supreme Court held that any factual determination increasing a defendant's maximum statutory sentence is an element that must be proved to a jury beyond a reasonable doubt. Id. at 490. Applying this principle, the Court struck down a New Jersey statutory scheme by which a defendant's maximum allowable sentence for unlawfully possessing a firearm jumped from 10 years to 20 years when the trial court found--again, by a mere preponderance of the evidence--that the crime was a " hate crime." See id. at 469-70, 497.
Two years later, a sharply divided Court stressed, in line with McMillan, that Apprendi did not apply to mandatory minimum sentences. Compare Harris v. United States, 536 U.S. 545, 568-69, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (explicitly reaffirming
McMillan, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67), with id. at 572-73
(Thomas, J., dissenting) (" The Court's holding today . . . rests on either a misunderstanding or a rejection of the very principles that animated Apprendi just two years ago. . . . I would reaffirm Apprendi[ and] overrule McMillan . . . ." ). Specifically, the Court upheld a federal statute that allowed a district court to increase a defendant's mandatory minimum sentence for using or carrying a firearm in relation to a drug trafficking crime from 5 years to 7 years because the judge found by a preponderance of the evidence that he had also " brandished" the weapon. Id. at 568-69 (citing 18 U.S.C. § 924(c)(1)(A)). " Basing a 2-year increase in the defendant's minimum sentence on a judicial finding of brandishing," the Court wrote, " does not evade the requirements of the Fifth and Sixth Amendments." Id. at 568.
Over a decade passed, and then the Supreme Court granted certiorari to a defendant who--like the Harris defendant--was convicted under 18 U.S.C. § 924(c)(1)(A).
See Alleyne, 133 S.Ct. at 2155. More precisely, a jury found this defendant guilty of using or carrying " a firearm during and in relation to a crime of violence," but did not find he had " brandished" the weapon, which would have triggered the mandatory seven-year minimum. Id. at 2156. Regardless, the district court found by a preponderance of the evidence that he had brandished a firearm and sentenced him to ...