Back in 2013, the Supreme Court in Alleyne v. United States, 133 S.Ct. 2151 (2013) extended its holding in Apprendi v. New Jersey, 530 U.S. 466 (2000), to apply to mandatory minimum sentences as well as statutory maximums. After Alleyene, a defendant cannot be subjected to a mandatory minimum sentence unless the triggering facts (usually a drug amount) are proved beyond a reasonable doubt. While many defendants were hopeful that Alleyene would help them get reduced sentences, in practice few people have benefited. Which is why the First Circuit’s decision last month in United States v. Barnes, 2014 WL 507284 (October 10, 2014), is worth noting. The defendant in that case had pled guilty to conspiring to distribute more than 50 kilograms of marijuana – an offense with a 20-year maximum, but no mandatory minimum. At sentencing, the court found by a preponderance of the evidence that the defendant was responsible for 3,000 kilograms and made it clear that as a result he was subject to mandatory minimum of ten years’ imprisonment and five years’ supervised release. The court imposed a sentence of 210 months’ imprisonment and five years’ supervised release. On appeal, the government conceded Alleyene error, but argued that it was harmless, since the court imposed a sentence of imprisonment higher than the mandatory minimum. With respect to the term of supervised release, the government argued the Court should review that error under the less favorable “plain error” standard because defense counsel did not explicitly object to the five year term. The Court rejected both of the government’s arguments. First, the Court ruled that the error was not harmless because the district court seemed to have taken the mandatory minimum into account in arriving at the final sentence. But for the mandatory minimum, the final may well have been shorter. With regard to the supervised release, the Court construed defense objection to the imposition of any mandatory minimum as covering supervised release.
The Court noted that Alleyne error can be harmless if no reasonable jury hearing the same evidence could have found beyond a reasonable doubt the defendant responsible for less than the triggering amount of drugs. Since the government never made that argument, the Court considered it waived. The takeaway from the case may well be that it is important to make any non-frivolous Alleyene objections even if the government has good defenses to them. Sometimes the government forgets to raise them. United States v. Barnes, 2014 WL 507284 (October 10, 2014).