Reply Brief — Harris v. United States

supreme Court Ds

° FILED

a Fs MAR 19 2002

He. 6b-20888 | OFFICE OF THE CLERE

In The

Supreme Court of the United States

¢

WILLIAM JOSEPH HARRIS,

Petitioner,

V.

Jerrrey T. G

UNITED STATES OF AMERICA,

Respondent.

+

On Writ Of Certiorari To The

United States Court Of Appeals

For The Fourth Circuit

Sd

REPLY BRIEF OF PETITIONER

REEN WituraM C. INGRAM

JACQUELINE GERSON Cooper First Assistant Federal Public

ALEXANDRA R. GELBER Defender

Eric A. SHUMSKY

Counsel of Record

Sip_ey AusTIN BROowN & Louis C. ALtten, III

Woop LLP

1501 K Street, NW

Federal Public Defender

EvizasetH A. FLAGG

Washington, D.C. 20005 Research & Writing Attorney

(202) 736-8000 FepeRAL Pusiic DEFENDER

OFFICE

Suite 210

101 South Elm Street

Greensboro, North Carolina

27401

(336) 333-5455

Counsel for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800)

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

TABLE OF AUTHORITIES....... nt neeetewcotucnnes

REPLY BRIEF OF PETITIONER ................005-

I.

Il.

Il.

VI.

VI.

RESPONDENT FAILS TO DISTINGUISH

THE LEGISLATIVE HISTORY OF § 924(c)

DOES NOT SUPPORT RESPONDENT'S

SENT TT TTT TT TUT TTT Te

A STATUTE THAT INCREASES A MANDA-

TORY MINIMUM IMPOSES A GREATER

PUNISHMENT ON A DEFENDANT.........

ALLOWING JUDGES TO MAKE FINDINGS

THAT INCREASE A MANDATORY MINI-

MUM UNDERMINES THE RIGHT TO A JURY

PRTC TOT eT Ter eT TT TET T TTT TTT T Te

OVERRULING McMILLAN WOULD NOT

HAVE DISRUPTIVE EFFECTS ...............

OVERRULING McMILLAN WOULD NOT

INVALIDATE THE SENTENCING GUIDE-

Cf Ee ere eer rrr Pret SP rr T Tr re

TREATING BRANDISHING AS AN ELEMENT

WILL NOT HAVE THE NEGATIVE PRACTI-

CAL CONSEQUENCES CLAIMED BY

EET n 60.0% Cabo ce evesccuscecceesenss

SEY KEG cbCabeVeenns sees cvccocesvseaseeds

12

14

17

ii

TABLE OF AUTHORITIES

Page

Cases

Almendarez-Torres v. United States, 523 U.S. 224

t 0 POT rT ee 16, 20

Apprendi v. New Jersey, 530 U.S. 466 (2000) ....1, 16, 18

Bailey v. United States, 516 U.S. 137 (1995).......... 7, 8

Castillo v. United States, 530 U.S. 120

CRERED oc ccccccvccostcnectseeeenenene” 2, 6, 7, 19, 20

Hicks v. Oklahoma, 447 U.S. 343 (1980)............... 11

Hodel v. Virginia Surface Mining & Reclamation

hasan, Ga USB. BBG CeGeees 00 cs cctesssdecs eee 6

Jones v. United States, 526 U.S. 227 (1999)........ passim

Lindsey v. Washington, 301 U.S. 397 (1937)..... 9, 10, 11

Lynce v. Mathis, 519 U.S. 433 (1997) ..............05. 10

“McMillan v. Pennsylvania, 477 U.S. 79 (1986)..:.. passim

Miller v. Florida, 482 U.S. 423 (1987)........... 9, 10, 11

Mullaney v. Wilbur, 421 U.S. 684 (1975)............... 5

United States v. Bailey, No. 1:00CR151-1 (M.D.N.C.

oe Peer ee 19

United States v. Barker, 771 F.2d 1362 (9th Cir. 1985) .... 13

United States v. Bowser, 497 F.2d 1017 (4th Cir.

BOFG). wc ncccvcccecsegseseebenes :eheeehenenneeE 13

United States v. Brough, 243 F.3d 1078 (7th Cir.),

covt. Ganied, 122 G. CE SED Gas so vdsavusetuneus 16

United States v. Daniels, 446 F.2d 967 (6th Cir. 1971) .... 13

United States v. Harris, 558 F.2d 366 (7th Cir. 1977) .... 13

iii

TABLE OF AUTHORITIES - Continued

Page

United States v. Hartford, 489 F.2d 652 (5th Cir.

EEE SPE S IE PPPPT TTT TTTTIT TTT T TL Lee 13

United States v. McCoy, 429 F.2d 739 (D.C. Cir

cea sbeGesedusereceococcecccccccceccccces 13

United States v. Nance, 236 F.3d 820 (7th Cir. 2000),

cert. denied, 122 S. Ct. 79 (2001)........-.- eee eeeee 16

United States v. Roper, 681 F.2d 1354 (11th Cir.

EEE TEESE NESTE PPT TT TTT TTT ee 13

United States v. Schwarz, 500 F.2d 1350 (2d Cir

i itEE Gee geseseeseeescococcccccccecccocces 13

United States v. Wardlaw, 576 F.2d 932 (ist Cir.

ESE per vrrrrr rrr TTT Tete 13

Weaver v. Graham, 450 U.S. 24 (1981).......... 2, 10, 11

Willeford v. Estelle, 637 F.2d 271 (5th Cir. Unit A

Jan. 1981), remanded from 447 U.S. 931 (1960)...... 11

Williams v. Oklahoma, 358 U.S. 576 (1959)............ 13

Woosley v. United States, 478 F.2d 139 (8th Cir.

EE EES TTT LTTE COLL 13

STATUTES

18 UGG. © FZ2Ba) .... 2c cccccccsccccccccccccsccccess 15

18 U.S.C. § G24(C) ..... er rcccccccccccccccsccvees passim

18 U.S.C. § 924(c)(1)(A).....-- eee eee eee rere passim

18 U.S.C. § 924(c)(1)(B) ... 6. cece cece cece ee eee eeeees 19

18 U.S.C. § 924(C)4).. 0... cccccecccceccesecereesees 2, 5

Ne iuccascescesccces: 15

iv

TABLE OF AUTHORITIES - Continued

Page

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Se Ws 1S GEE 6 dav nccbveesscabastasmeansenanadie 16

SP Diaw © Becessecscccenedsusveosentsacsoneeien 18

Ala. Code § 13A-G-GlaMG), BG)... ccccccccccccccccces 15

male, Gat. Ace. © GHRTIED oc co eccccccccccecenssces 15

LecisLaTive History

De Ty TOG Cem, Ci cc ccccdvccctccceneseoces 7

Sue TE BOGE Camm, GN e ccc cccccccescccceosesecs 7

FLR. 3060, 106th Cong. (1996). ........ccccccccccccces 7

H.R. 3085, 104th Cong. (1996)..........-..ecccceeeees 7

PLR. 3362, 100th Comm. (1996).......ccccccccccccccces 7

FIR. 3454, 100th Cong. (1996)........cccccccccccccces 7

PLR. 3565, 100th Comm. (1996)........ccccccccccccccess 7

BIR. 3696, 106th Comm. (1996). ......ccccccccccccccess 7

Sue Dome Woes CMe, COTTD. oc ccccccccccccccccceces 7

BER. 4181, 100th Comm. (1996). .....ccccccccccccccccss 7

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S. B60R, 20GR Come, (I00ED 2.2 cc ccscccccescccvccseces 7

TE Be Soe, GI cn iceccdcccscetascsliccnces 7

Vv

TABLE OF AUTHORITIES - Continued

Page

SCHOLARLY AUTHORITIES

Mark Kelman et al., Context-Dependence in Legal

Decision Making, in Behavioral Law and Economics

61 (Cass R. Sunstein ed., 2000) .......-...--+-+0+: 11

Barbara S. Vincent & Paul J. Hofer, Fed. Judicial

Ctr., The Consequences of Mandatory Minimum

Prison Terms: A Summary of Recent Findings

I oc ccoseccvncoceveccsssascoctucescececeeeocns 17

OTHER AUTHORITIES

United States Sentencing Commission, Guidelines .

Manual (Nov. 2001) ....... 0.222 eeeeneeeeees passim

U.S. Sentencing Comm'n, Special Report to the Con-

gress: Mandatory Minimum Penalties in the Federal

Criminal Justice System (Aug. 1991).........--+++- 17

1

REPLY BRIEF OF PETITIONER

Nothing in Respondent's brief undermines two fun-

damental propositions: (1) This case is squarely governed

by Jones v. United States, 526 U.S. 227 (1999), which inter-

preted a structurally identical statute to set forth ele-

ments of the relevant criminal offense; and (2) this

Court's recent Fifth and Sixth Amendment jurisprudence,

including Apprendi v. New Jersey, 530 U.S. 466 (2000), have

so undercut McMillan v. Pennsylvania, 477 U.S. 79 (1986)

that, as a constitutional matter, any fact that triggers a

mandatory minimum sentence must be treated as an ele-

ment of-the underlying offense. Furthermore, Respon-

dent’s protestations to the contrary, overruling McMillan

will have only limited effects. For each of these reasons,

Petitioner must prevail.

I. RESPONDENT FAILS TO DISTINGUISH JONES.

As demonstrated in Petitioner’s opening brief, this

case is governed by Jones. The statute here is identical in

structure to that in Jones; the statutes’ subsections provide

for steeply higher penalties; the facts in the subsections

are as important as those in the principal paragraph; the

definition of the crime is not complete without the con-

clusions offered in the subsections; the acts in the subsec-

tions have traditionally been treated as elements of the

offense; and the legislative history expresses Congress's .

intent for the acts to be elements of the offense. Pet. Br. at

8-22. In short, Petitioner’s argument remains unrefuted:

Pursuant to this Court’s opinion in Jones, § 924(c)(1)(A)(ii)

and (iii) set forth elements of the offense and not sentenc-

ing factors.

2

Respondent attempts to distinguish the two statutes

on the basis of their sentence ranges. First, Respondent

argues that “the pivotal considerations in Jones are absent

here,” stating that “[uJnlike the carjacking statute, the

sentencing provisions in Section 924(c)(1)(A) do not raise

ther maximum, but only increase the minimum.” Resp. Br.

at 6; see also id. at 9-10. This was not a “pivotal” consider-

ation in Jones. Indeed, it was not a consideration at all. In

interpreting the statute, the Jones Court noted only that

the subsections provided for “steeper penalties,” but did

not concern itself with, nor even mention, the fact that

they raised the statutory maximum sentence. This is

unsurprising: Whether a particular provision increases

the statutory maximum or minimum sentence is irrele-

vant to whether the statute creates a sentencing factor or

an element of the offense.

Respondent next argues that “the findings under Sec-

tion 924(c) do not result in ‘steeply higher penalties,’ ” id.

at 12, and that the Court should therefore infer that

Congress did not intend the factors to be elements of the

offense. However, the Court has held that a two year

increase in punishment is sufficiently burdensome to

implicate liberty interests. See Weaver v. Graham, 450 U.S.

24, 32 n.17, 33-36 (1981). Furthermore, the minimum pen-

alty under § 924(c)(1)(A)(iii) for discharging a firearm is

heightened from five years to ten. In Castillo v. United

States, the Court noted the significance of exactly such a

five year enhancement in the minimum sentence. 530 U.S.

120, 131 (2000).

Because “all violations of Section 924(c) are punish-

able by life in prison,” Respondent next argues, the

increase in the mandatory minimum sentence does not

“affect the ‘available penalty’ at all.” Resp. Br. at 12. This

3

argument ignores reality. It is true, of course, that some

defendants could receive a seven or ten year sentence

without a finding of brandishing or discharging. But this

is not necessarily so, nor even likely.! As discussed in

greater detail below, a defendant who would have

received a five year sentence but instead receives the

increased minimum of seven or ten years surely suffers a

marked change in his “available penalty.” See infra Part

III.

Respondent goes on to offer the following syllogism:

The subsections in both the statute in Jones and the stat-

ute here appear at first glance to set forth sentencing

factors (even though the Court in Jones went on to reject

this initial impression, 526 U.S. at 233); unlike § 2119, the

maximum sentence for all violations of § 924(c)(1)(A) is

life in prison; therefore, the “look” of § 924(c)(1)(A)

should control because the subsections do not increase

the maximum sentence, but rather limit the sentencing

range. Resp. Br. at 11. Respondent again attempts to draw

significance from the differing sentences described in the

two statutes, but there is simply no logic to the argument.

While it is true that the brandishing and discharging

subsections do not raise the maximum sentence available

under the statute, Respondent fails to explain why this

would mean that § 924(c)(1)(A) was therefore intended to

set forth sentencing factors.

1 The Sentencing Guidelines recommend that a defendant

receive the mandatory minimum for violations of this statute.

United States Sentencing Commission, Guidelines Manual,

§ 2K2.4(a)(2) (Nov. 2001). Judges may only depart upward from

this recommendation if they articulate a legally permissible

justification, and there would rarely be enough aggravating

factors to warrant a sentence of life in prison.

4

Drawing on the Court’s observation in Jones that the

facts in the subparagraph of § 2119 are at least as impor-

tant as those in the principal paragraph, Respondent

attempts to distinguish Jones on the basis that “[iJn sec-

tion 924(c) . . . the basic evil is addressed in the principal

paragraph,” and that “the acts of ‘brandishing’ and ‘dis-

charging’ do not pose qualitatively different dangers

from the underlying prohibited conduct.” Id. at 11-12. As

an initial matter, Respondent offers no support for its

conclusion; this is little more than ipse dixit. Moreover,

this position defies common sense. Certainly the bran-

dishing or discharging of a weapon radically changes the

scenario for the victim, and poses dangers that are dis-

tinct and greater than simply possessing it. Obviously

Congress agreed, for it determined that those acts were

sufficiently more dangerous than the simple offense that

they warranted separate mention and steeper penalties.

Respondent attempts to dismiss the 225 statutes cited

by Petitioner to show that brandishing and discharging

have traditionally been treated as offense elements by

federal and state-governments. Pet. Br. at 13-14. Focusing

on the federal statutes, Respondent argues that “[t]hose

provisions - which use traditional offense-defining lan-

guage and do not separate ‘discharge’ from other ele-

ments by the word ‘shall’ or numbered subsections -

demonstrate only that Congress knows how to make

discharging an offense element when it wishes.” Resp. Br.

at 15. This argument does not refute the fact that Con-

gress has chosen to make discharging an offense element |

in these statutes. Nor does Respondent point to any stat-

utes that treat the discharge of a firearm as a sentencing

factor. Furthermore, in Jones the Court looked at whether

the acts were traditionally treated as offense elements,

5

not whether those acts were found in statutes identical in

‘structure to the statute at issue. 526 U.S: at 235-36. The

Court cited numerous statutes as evidence that serious

bodily injury was traditionally treated as an element of

the offense, id., most of which varied in structure from

§ 2119.

As demonstrated by Amicus Cato Institute, the inclu-

sion of a specific intent element in the definition of bran-

dishing in § 924(c)(4) further supports the conclusion that

brandishing is an element of the offense, because deter-

minations of a defer.dant’s intent traditionally fall within

the province of the jury. Br. of Cato Institute at 13; Mul-

laney v. Wilbur, 421 U.S. 684, 702 (1975). Respondent

answers that an identical definition of brandishing in the

Sentencing Guidelines “makes clear that Congress’s use

of the phrase ‘in order to intimidate’ does not mean that

brandishing is necessarily an offense element.” Resp. Br.

at 16 n.5. The Sentencing Commission’s inclusion of

intent language in the definition of brandishing in the

Sentencing Guidelines does not alter the fact that intent is

traditionally an element of the offense.

While Respondent argues that the hundreds of stat-

utes cited by Petitioner are not persuasive, it offers scant

evidence to support its own position that brandishing

and discharging are traditional sentencing factors, relying

only on a task force report and a handful of references to

the Sentencing Guidelines. Resp. Br. at 13-14. The mere

mention of an act in the Guidelines, however, does not

mean that the act has traditionally been treated as a

sentencing factor. Indeed, in Jones, the Court found that

“serious bodily injury” was an element of the offense,

despite the fact that serious bodily injury is mentioned

6

repeatedly in the Sentencing Guidelines. See USSG

§ 2A2.1(b)(1)(B); USSG § 2A2.2(b)(3)(B); USSG

§ 2A3.1(b)(4)(B).?

Il. THE LEGISLATIVE HISTORY OF § 924(c) DOES

NOT SUPPORT RESPONDENT’S ARGUMENTS.

A review of the legislative history reveals that Con-

gress intended brandishing and discharging to be ele-

ments of § 924(c)(1)(A). Pet. Br. at 15-22. Respondent

dismisses Petitioner’s analysis, claiming that “Peti-

tioner’s citations to the legislative history refer primarily

to the bill initially passed by the House, which differed in

critical respects from the statute ultimately passed.”

Resp. Br. at 17 (citation omitted). That is simply incorrect.

See Pet. Br. at 16-22. Petitioner cites to the legislative

history from two Congresses and a number of different

bills, which is appropriate here, as the process of amend-

ing the statute took place over two Congresses. See, e.g.,

Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452

U.S. 264, 277-80 & n.19 (1981) (relying on a mpretive

record compiled over six years).

While accusing Petitioner of not drawing broadly

enough from the legislative history, Respondent offers no

evidence from the legislative history that brandishing

and discharging were meant to be sentencing factors.

Rather, Respondent selects one of over twenty-five bills

that were introduced to amend § 924(c), then compares

2 Respondent also relies on a comment in Castillo in which

brandishing was used as an example of a manner in which a

crime is carried out. Resp. Br. at 13. As already discussed,

Castillo’s reference to brandishing was dicta. See Pet. Br. at 14

n.6.

——

7

the structure of that one bill to the statute that was

ultimately enacted. Resp. Br. at 16-17.5 Based on this

comparison, Respondent concludes that differences in the

structures of the statutes proposed in those two bills

mean that Congress intended brandishing and discharg-

ing to be sentencing factors. But Respondent fails to

identify a single statement by a member of Congress to

support this theory. Respondent’s conjecture about what

Congress intended cannot counter actual statements in

the legislative record.

Respondent also rejects Petitioner’s analysis of the

evolution of § 924(c) after Bailey v. United States, 516 U.S.

137 (1995), contending that brandishing and discharging

were not elements of the offense under the prior version

of § 924(c), and therefore that the amendment to the

statute did not constitute a significant departure from

3 Although not an exhaustive list, in addition to the bills

cited in Petitioner’s opening brief, Pet. Br. at 17 n.8., the 104th

Congress proposed amendments to § 924(c) in H.R. 125, H.R.

920, H.R. 3080, H.R. 3085, H.R. 3382, H.R. 3454, H.R. 3565, H.R.

3698, H.R. 3988, H.R. 4181, S. 3, S. 38, S. 1495, S. 1854.

¢ Relying on an opinion from the Fifth Circuit, Respondent

asserts that “statements by members of Congress referring to

‘mandatory minimum sentences’ do not support petitioner’s

reading of Section 924(c) but instead ‘indicate[ ] that Congress

viewed the subsections as penalty enhancements.’ ” Resp. Br. at

17 (alteration in original) (citation omitted). Réspondent

incorrectly claims that “penalty enhancement” is necessarily

synonymous with “sentencing factor.” The Court has rejected

such arguments before. Jones, 526 U.S. at 237-38 (“The

Government points to several statements in the 1996

amendment’s legislative history in which subsection (2) is

described as providing a ‘penalty enhancement’. . . . [We] find

the quoted statements unimpressive.”) (citation omitted);

Castillo v. United States, 530 U.S. 120, 129-30 (2000).

8

past practice. Resp. Br. at 18. Although it is true that the

prior version of the statute referred only to “use or

carry,” the specific types of use, such as brandishing or

discharging, were proved to a jury beyond a reasonable

doubt, not established before the sentencing judge by a

preponderance of the evidence. Bailey, 516 U.S. at 139. In

practice, then, brandishing and discharging were ele-

ments of the offense. Accordingly, under Respondent's

interpretation of the statute, the post-Bailey amendment

effected a fundamental change. However, such a funda-

mental change should not be presumed absent an explicit

expression by Congress of its intent to do so. See Jones,

526 U.S. at 234 (“[it is a] fair assumption that Congress is

unlikely to intend any radical departure from past prac-

tice without making a point of saying so”); Pet. Br. at

15-16.

Ill. A STATUTE THAT INCREASES A MANDATORY -

MINIMUM IMPOSES A GREATER PUNISH-

MENT ON A DEFENDANT.

In his opening brief, Petitioner explained that

increases in a mandatory minimum sentence implicate

the underlying concerns of the reasonable doubt require-

ment because they heighten the deprivation of liberty

and stigma attached to a crime. Pet. Br. at 30-34. Respon-

dent counters that an increase in a mandatory minimum

sentence does not expose a defendant to any punishment

to which he was not already exposed by the jury’s ver-

dict. See Resp. Br. at 12, 30-31. However, the Court has

recognized in the Ex Post Facto context that a statute that

increases a minimum sentence imposes a greater punish-

ment on a defendant even if it does not increase the

statutory maximum to which the defendant is exposed.

9

In Lindsey v. Washington, 301 U.S. 397 (1937), the

defendant was convicted of a crime that at the time of his

offense carried a sentence of six months to fifteen years in

prison, but that at the time of his conviction carried a

mandatory sentence of fifteen years. The State argued

that applying the new sentence to the defendant did not

violate the Ex Post Facto Clause because he could have

received fifteen years even under the old law. See id. at

400-01. The Court disagreed. It held that “the standard of

punishment adopted by the new statute is more onerous

than that of the old” and that “it is plainly to the substan-

tial disadvantage of petitioners to be deprived of all

opportunity to receive a sentence” less than fifteen years.

See id. at 401-02.

The Court embraced this same logic in Miller v. Flor-

ida, 482 U.S. 423 (1987). There, the defendant was con-

victed of crimes that carried a maximum sentence of life

in prison. See id. at 427. At the time the defendant com-

mitted the crimes, his sentencing range under the State’s

sentencing guidelines was three-and-one-half to four-

and-one-half years in prison. Prior to his conviction, how-

ever, the guidelines were revised such that the presump-

tive sentencing range increased to five-and-one-half to

seven years in prison. See id. at 424. The Court held that

applying the new range to the defendant and sentencing

him to seven years violated the Ex Post Facto Clause even

though he could have received a higher sentence even

under the old guidelines. See id. at 431-33. The Court

explained that the Ex Post Facto Clause prohibits the

government from “ ‘inflict[ing] a greater punishment’ ”

on a defendant “ ‘than the law annexed to the crime,

when committed.’ ” See id. at 429 (quoting Calder v. Bull, 3

U.S. (3 Dall.) 386, 390 (1798)). Although the defendant

10

could have received the higher sentence even under the

old range, the Court held that he was “ ‘substantially

disadvantaged’ ” by the retrospective application of the

new guidelines and that the punishment for his crime

was made “ ‘more onerous’ ” by subjecting him to a range

with a higher minimum. See id. at 433, 435.5

This case is nearly identical to Lindsey and Miller.

Petitioner was convicted of a crime that carries a sentenc-

ing range of five years to life in prison, but the judge

increased that range to seven years to life based on a

finding that Petitioner brandished a weapon. The judge’s

finding did not expose Petitioner to a sentence above the

statutory maximum, but his loss of liberty was nonethe-

less heightened. As in Lindsey and Miller, Petitioner’s

punishment was made “more onerous,” and he was “sub-

stantial[ly] disadvantage[d]” by the judge’s finding

because he was “deprived of all opportunity to receive a

sentence” less than seven years. See Lindsey, 301 U.S. at

401-02.

Although this case involves the Due Process Clause,

not the Ex Post Facto Clause, the reasoning of Lindsey and

Miller still applies. The question in those cases was

> See also Lynce v. Mathis, 519 U.S. 433, 447 (1997)

(cancellation of prisoner’s early release credits violated Ex Post

Facto Clause because it “prolonged his imprisonment” six

years, even though sentence was still within statutory range);

Weaver v. Graham, 450 U.S. 24, 32 n.17, 33-36 (1981)

(retrospective application of new formula for gain-time credits

violated Ex Post Facto clause because it increased defendant's

prison stay by two years, even though he was still within

statutory range; “critical question . . . is whether the new

provision imposes greater punishment after the commission of

the offense, not merely whether it increases a criminal

sentence”).

11

whether an increase in the bottom end of a statutory

range exposed a defendant to greater punishment even

though the statutory maximum remained unchanged. By

ruling in the affirmative, the Court recognized that a

defendant faces a greater loss of liberty when the bottom

end of a sentencing range is raised. Indeed, the Court in

Miller rejected the state’s claim that application of the

revised guidelines did not “alter ‘substantial personal

rights.’” Miller, 482 U.S. at 430. “[T]he revised guide-

lines,” the Court stated, “directly and adversely affect the

sentence petitioner receives.” Id. at 435; see also Weaver,

450 U.S. at 33 (stating that revision in formula for gain-

time credits “alters the consequences attached to a crime

already completed, and therefore changes ‘the quantum

of punishment’ ”). Moreover, the Court has applied the

same principle in due process cases. See Hicks v. Okla-

homa, 447 U.S. 343 (1980) (defendant was denied due

process where jury was erroneously instructed that it

must give forty year sentence even though jury could

have given same sentence under correct instructions); see

also Willeford v. Estelle, 637 F.2d 271, 272 (5th Cir. Unit A

Jan. 1981), remanded from 447 U.S. 931 (1980).°

6 Lindsey, Miller, and Hicks also recognize that changes in

the sentencing range may affect the sentence that judges and

juries choose within that range. See also Mark Kelman et al.,

Context-Dependence in Legal Decision Making, in Behavioral Law

and Economics 61 (Cass R. Sunstein ed., 2000) (demonstrating the

way in which the framing of choices influences the decisions

people make).

12

IV. ALLOWING JUDGES TO MAKE FINDINGS

THAT INCREASE A MANDATORY MINIMUM

UNDERMINES THE RIGHT TO A JURY TRIAL.

Respondent next argues that allowing a judge to

make findings that increase a mandatory minimum does

not undermine the protections of the Sixth Amendment

right to a jury trial. See Resp. Br. at 28-29. That right,

Respondent claims, is designed to guard against over-

zealous prosecutors and compliant or biased judges. But

because prosecutors can demand, and judges can impose,

higher sentences even without such a finding, Respon-

dent argues that “[p]rohibiting a judge from determining

a mandatory minimum sentencing factor would not” fur-

ther the values protected by the Sixth Amendment. See

Resp. Br. at 28.

This argument fails for two reasons. First, although

prosecutors can request a sentence above five years for

any conviction under § 924(c)(1)(A), they can only

“demand” a higher sentence if they prove that the defen-

dant brandished a weapon under subsection (ii). Prosecu-

tors face a higher standard in proving this fact to a jury

than to a judge; therefore, they gain a significant advan-

tage when the judge is allowed to make the critical find-

ing. Second, because the Guideline for § 924(c)(1)(A)

instructs judges to impose the minimum sentence avail-

able under the statute, a biased or compliant judge also

benefits when allowed to make findings that increase the

mandatory minimum. See USSG § 2K2.4(a)(2). Without

this authority, a judge can only impose a sentence above

five years if the jury finds that the defendant brandished

a weapon or if the judge offers a sufficient reason for

departing upward. With this authority, however, the

13

judge can impose seven years without the jury’s finding

and without departing upward from the Guideline.

Respondent also argues that because a single judge -

or even a group of judges - could decide to impose a

minimum sentence of seven years on all defendants who

brandish a weapon, there is no reason a legislature cannot

make that decision for them. Resp. Br. at 24-25. But it is

not clear that judges could decide ex ante to impose seven

year sentences on any defendant who brandished a fire-

arm without also considering mitigating factors. In Wil-

liams v. Oklahoma, 358 U.S. 576, 585 (1959), the Court

stated that “[iJn discharging his duty of imposing a

proper sentence, the sentencing judge is authorized, if not

required, to consider all of the mitigating and aggrava-

ting circumstances involved in the crime.” In addition,

nearly every circuit court of appeals has ruled that a

judge must exercise judicial discretion by determining the

appropriate sentence based on the individual offender

and not a particular offense.”

Even if judges could make this decision ex ante, there

is a difference between increasing a sentence based upon

judicial discretion and increasing a sentence based upon

an enactment of positive law. When a legislature deter-

mines that one aspect of a crime is so important that it

7 See United States v. Wardlaw, 576 F.2d 932, 939 (1st Cir.

1978); United States v. Schwarz, 500 F.2d 1350, 1352 (2d Cir. 1974)

(per curium); United States v. Bowser, 497 F.2d 1017, 1019 (4th Cir.

1974); United States v. Hartford, 489 F.2d 652, 655 (5th Cir. 1974);

United States v. Daniels, 446 F.2d 967, 971 (6th Cir. 1971); United

States v. Harris, 558 F.2d 366, 372 (7th Cir. 1977); Woosley v.

United States, 478 F.2d 139, 143 (8th Cir. 1973); United States v.

Barker, 771 F.2d 1362, 1367 (9th Cir. 1985); United States v. Roper,

681 F.2d 1354, 1361 (11th Cir. 1982); United States v. McCoy, 429

F.2d 739, 743 (D.C. Cir. 1970).

14

warrants an increased mandatory minimum sentence in

every case, the legislature has in effect created an aggra-

vated offense. See Br. of Families Against Mandatory Min-

imums Foundation at 7-12. To then take what is an

element of an aggravated offense and label it a mere

“sentencing factor” undermines the defendant's right to a

jury trial and due process.

V. OVERRULING McMILLAN WOULD NOT H

DISRUPTIVE EFFECTS. oe

Respondent argues that stare decisis precludes this

Court from overruling McMillan v. Pennsylvania, 477 U.S.

79 (1986), as such a decision would have “disruptive

effects.” Resp. Br. at 44. Respondent claims that overrul-

ing McMillan “would call into question thousands of

sentences imposed under” numerous statutes that man-

date minimum sentences, id., violating the various legis-

latures’ reliance interests, id. at 43. Likewise, Amici Curiae

ir'voke a parade of horribles, arguing that numerous

states have relied on McMillan in enacting thousands of

statutes, and that such reliance argues in favor of apply-

ing stare decisis. Br. of Criminal Justice Legal Foundation

(“CJLF”) at 23 (“Amicus will not recount in detail the

hundreds, if not thousands of mandatory minimum pro-

visions threatened by overruling McMillan”); Br. of 25

States and Territories (“25 States”) at 11-12 (suggesting

that overruling McMillan will affect laws in all fifty

States); id. at 13-15. This concern is illusory, and is unsup-

ported by the evidence purportedly marshaled in its

favor.

: First, many of the statutes supposedly enacted in

reliance on McMillan were in fact enacted prior to

McMillan. In fact, this is so for each of the five state

statutes identified as examples of mandatory minimums

15

that turn on judicially-determined gun factors. See Br. of

25 States at 13 (citing statutes). See, eg., Ala. Code

§ 13A-5-6(a)(4), (5) (enacted 1977; amended 1981); Minn.

Stat. Ann. § 609.11(5) (enacted 1981). A statute passed

prior to McMillan can hardly be said to have been enacted

in reliance upon that decision.

Furthermore, although some small number of stat-

utes would certainly be affected if McMillan were

reversed, such a ruling would hardly have the monumen-

tal effect that Respondent and Amici contend. The reason

is simple: Overruling McMillan would not affect all stat-

utes that contain a mandatory minimum penalty. Such a

ruling would not invalidate statutes that contain a tradi-

tional mandatory minimum sentence, in which Congress

simply specified some minimum sentence to accompany a

designated crime, see, e.g., 18 U.S.C. § 1111 (mandating

life imprisonment for first degree murder); 18 U.S.C.

§ 225(a) (mandating ten years to life imprisonment for a

continuing financial crimes enterprise). Rather, such a

decision would affect only those few statutes in which a

judicially-determined fact triggers an increase in the

mandatory minimum.

But even among the smaller category of statutes that

contain such an increased mandatory minimum, few stat-

utes would be affected. Overruling McMillan would not

affect statutes in which the increased mandatory mini-

mum is triggered by a fact that has been specifically

designated as an offense element, or in which the trigger-

ing fact is one that has traditionally been treated as an

offense element. See, e¢.g., Jones, 526 U.S. at 235-37

(“serious bodily injury” is traditionally treated as an

offense element). Such statutes would pass constitutional

muster precisely because the triggering fact is an element

of the offense.

16

Furthermore, overruling McMillan would not render

unconstitutional those statutes that do not specify

whether the fact that triggers the increased mandatory

minimum is an element or a sentencing factor. Most stat-

utes fall into this category, as statutes that impose

increased mandatory minimums upon the finding of an

additional factor generally do not address the procedure

for making that finding. See, e.g., United States v. Brough,

243 F.3d 1078, 1079 (7th Cir.) (“If Congress had specified

that only judges may make the findings required by

§ 841(b), or that these findings must be made by a pre-

ponderance of the evidence, then § 841 would create a

constitutional problem. But... the law attaches effects to

facts, leaving it to the judiciary to sort out who deter-

mines the facts, under what burden.”), cert. denied, 122

S. Ct. 203 (2001). In the face of such statutory ambiguity,

and following a decision overruling McMillan, courts

would simply apply the canon of constitutional avoid-

ance, and interpret the triggering factor as an element.

This is just what the courts have done since Apprendi,

simply characterizing (or recharacterizing) triggering

facts as elements of the underlying offense. See, e.g.,

United States v. Nance, 236 F.3d 820, 825 (7th Cir. 2000)

(overruling pre-Apprendi precedent that drug quantity is

a sentencing factor under 21 U.S.C. § 841, and recharac-

terizing it as an element of the offense), cert. denied, 122

S. Ct. 79 (2001).

Finally, overruling McMillan would not affect the

application of statutes - like 18 U.S.C. § 2252A, cited by

Respondent for the contrary point, see Resp. Br. at 44 - in

which the mandatory minimum is triggered by a provi-

sion that penalizes recidivism. See Almendarez-Torres v.

United States, 523 U.S. 224, 226 (1998).

17

In short, overruling McMillan would affect only those

few statutes in which (1) a judicially-determined fact (2)

triggers an increase in the minimum sentence. Thus,

although Petitioner’s review of the United States Code

has turned up approximately sixty federal statutes that

mandate some minimum sentence - a figure in which

Amicus Curiae CJLF concurs, see Br. of CJLF at 23 - the

application of only a handful of those statutes would be

affected by the ruling that Petitioner seeks.

VI. OVERRULING McMILLAN WOULD NOT

INVALIDATE THE SENTENCING GUIDELINES.

Respondent argues that overturning McMillan would

“call into question the Federal Sentencing Guidelines” —

because “[l]ike mandatory minimums, the Sentencing

Guidelines constrain the discretion of sentencing courts

in order to prevent the unfair disparities associated with

indeterminate sentencing.” Resp. Br. at 38. But the Sen-

tencing Guidelines differ greatly from increased manda-

tory minimums, both in structure and in their operation:

“(T]he guidelines take into account many more factors

than do the mandatory minimums; they maintain ‘suffi-

cient flexibility to permit individualized sentences when

warranted by mitigating or aggravating factors not taken

into account in the establishment of general sentencing

practices.” Barbara S. Vincent & Paul J. Hofer, Fed.

Judicial Ctr., The Consequences of Mandatory Minimum

Prison Terms: A Summary of Recent Findings 2 (1994). The

Guidelines consider the base offense level, specific

offense characteristics, and “certain generic adjust-

ments .. . to further individualize the sentence.” U.S.

Sentencing Comm'n, Mandatory Minimum Penalties in the

Federal Criminal Justice System 21 (Aug. 1991) (footnote

omitted). By contrast, increased mandatory minimums

18

operate upon the finding of a single factor. Furthermore,

they do not allow mitigating circumstances to offset the

statutory trigger. Thus, unlike the Guidelines, increased

mandatory minimums do not further the goal of individ-

ualized sentencing.

In addition, the Sentencing Guidelines leave judges

with considerable freedom to depart from the recom-

mended range, and judges depart downward in more

than one-third of all cases. See Pet. Br. at 40 n.15. Respon-

dent argues that judges can also depart downward from

mandatory minimums under the “substantial assistance”

provision of 18 U.S.C. § 3553(e) or the “safety valve”

provision of 18 U.S.C. § 3553(f). See Resp. Br. at 41. But a

judge has no discretion to depart downward for substan-

tial assistance without a request from the prosecution, see

18 U.S.C. § 3553(e), and safety valve departures are

allowed only in drug cases and only if the defendant

meets a five-part test, see 18 U.S.C. § 3553(f). Thus, an

increase in the mandatory minimum is far more detri-

mental to a defendant than application of the Sentencing

Guidelines because it leaves judges with much less dis-

cretion to depart downward.

VII. TREATING BRANDISHING AS AN ELEMENT

WILL NOT HAVE THE NEGATIVE PRACTICAL

CONSEQUENCES CLAIMED BY RESPONDENT.

Respondent argues that “a rule that requires that all

facts that increase the mandatory minimum punishment

be treated as elements of the offense could render indict-

ments unwieldy and could unnecessarily complicate

trials.” Resp. Br. at 26. That concern has no basis. Since

Apprendi, for example, the United States Attorney in the

Middle District of North Carolina has charged brandish-

ing and discharging in indictments under § 924(c). See,

oes

e.g., United States v. Bailey, No. 1:00CR151-1 (M.D.N.C.

Dec. 12, 2000) (defendant in a case brought under 18

U.S.C. § 924(c)(1)(A) charged in indictment with dis-

charging firearm). This practice has not rendered indict-

ments “unwieldy.”

Nor would trials be unnecessarily complicated. The

Court addressed this issue in the analogous context of

machinegun cases brought under § 924(c)(1)(B):

[T]o ask a jury, rather than a judge, to decide

whether a defendant used or carried a

machinegun would rarely complicate a trial or

risk unfairness. As a practical matter, in deter-

mining whether a defendant used or carried a

“firearm,” the jury ordinarily will be asked to

assess the particular weapon at issue as well as

the circumstances under which it was allegedly

used.

Castillo, 530 U.S. at 127-28 (citation omitted). Likewise,

given that juries must determine whether a defendant

used or carried a firearm - an inquiry that ordinarily

involves consideration of the circumstances surrounding

the alleged use or carrying — there is nothing particularly

complicated about juries determining whether the defen-

dant brandished or discharged the firearm.

Along similar lines, Respondent asserts that “requir-

ing jury determinations of facts that bear only on the

applicability of mandatory minimum punishment could

unnecessarily prejudice defendants. ‘A defendant might

not, for example, wish to simultaneously profess his inno-

cence of a drug offense and dispute the amount of drugs

allegedly involved.’” Resp. Br. at 28-29. Respondent's

concern for criminal defendants is misplaced. The mani-

fest unfairness to defendants of having brandishing

proven only by a preponderance of the evidence, rather

20

than beyond a reasonable doubt, is far greater than any

unfairness caused by the hypothetical situation posed by

Respondent. See Almendarez-Torres, 523 U.S. 267 (Scalia, J.,

dissenting). In any event, as this Court has previously

explained, such prejudice to defendants is likely to be

minimal. See Castillo, 530 U.S. at 127-28.

CONCLUSION

For the reasons stated in Petitioner’s opening brief

and above, Petitioner respectfully requests that the deci-

sion of the Fourth Circuit Court of Appeals be reversed,

Petitioner’s seven year term of imprisonment be over-

turned, and this case be remanded to the district court for

resentencing.

Respectfully submitted,

Jerrrey T. GREEN WriuraM C. INGRAM

JACQUELINE GERSON Cooper First Assistant Federal Public

ALEXANDRA R. GELBER Defender

Eric A. SHUMSKY Counsel of Record

Siptey AusTIN Brown & Louts C. ALten, III

Woop LLP. Federal Public Defender

1501 K Street, NW EuizaBeTH A. FLAGG

Washington, D.C. 20005 Research & Writing Attorney

(202) 736-8000 FEDERAL Pusiic DEFENDER

OFFICE

Suite 210

101 South Elm Street

Greensboro, North Carolina

27401

(336) 333-5455

Counsel for Petitioner