A jury found Allen Alleyne guilty of robbery under a federal statue, but the jury did not find him guilty of brandishing a weapon during the robbery. A federal criminal statute provides that a judge can raise the mandatory minimum sentence for robbery with a finding that it was more likely than not that the defendant brandished a firearm. Thus, a judge’s finding can raise the mandatory minimum prison sentence even when a jury was unable to come to that same conclusion beyond a reasonable doubt. The Supreme Court allowed such findings from judges in Harris v. United States. Now, the court will reconsider that position or have the opportunity to further clarify how much sentencing discretion can be given to judges under federal statutes.
Questions as Framed for the Court by the Parties
Should the Supreme Court overrule Harris v. United States and require that a jury find facts beyond a reasonable doubt in order to enhance a sentence beyond the ordinarily prescribed statutory maximum?
The petitioner Allen Alleyne was convicted of robbery for his role in a plot to steal store deposits from a convenience store owner. According to Alleyne’s girlfriend, she had suggested that Alleyne rob the manager of the Virginia convenience store where she worked. His girlfriend provided Alleyne with information about the manager’s deposit procedures. On October 1, 2009 Alleyne and an unknown accomplice took action. When the manager left the convenience store, Alleyne and his accomplice drove ahead of the manager and the accomplice got the attention of the manager, who assumed the two men were having car troubles. The accomplice then approached the manager’s car and the manager rolled down the car window. Once the car window was down, the accomplice forced the manager to hand over the deposit bag by placing a gun to the manager’s neck. After obtaining the deposit bag, Alleyne drove himself and the accomplice away from the scene. Although the manager never identified either robber, Alleyne was charged with the robbery while the accomplice was not.
At Alleyne’s trial, the jury found Alleyne guilty of aiding and abetting the robber, and also of using or carrying a firearm during the robbery. However, the jury did not find Alleyne guilty of waving the firearm. At the sentencing phase, the government argued that Alleyne could have reasonably foreseen that his accomplish would brandish a weapon, and the government requested a seven-year mandatory minimum sentence. Without a finding that Alleyne brandished a firearm, the mandatory minimum sentence based on the jury’s verdict was five years. The court found by a preponderance of the evidence that Alleyne reasonably foresaw that the gunman would brandish a firearm during the robbery. That finding triggered a mandatory consecutive seven-year sentence in accordance with 18 USC §924(c)(1)(A)(ii).
The Court of Appeals for the Fourth Circuit affirmed the district court. The Fourth Circuit rejected Alleyne’s argument that there was insufficient evidence to support his convictions. In addition, the Fourth Circuit determined that previous Supreme Court decisions, in particular Harris v. United States, precluded Alleyne’s argument that having the findings of a judge raise the mandatory minimum sentence he could receive violated Alleyne’s constitutional rights.
In deciding whether to overturn Harris, the Supreme Court will determine how much flexibility legislatures can have in creating sentencing schemes. Altering the way sentencing is conducted could have meaningful consequences for the length of sentences individuals receive as well as how the government approaches imposing punishment.
Rights of Individual Defendants
Alleyne contends that the federal sentencing scheme for brandishing a firearm violates his Fifth and Sixth amendment rights. Alleyne argues that the line of cases that led to his sentencing, as well as the federal statute enacted in response to that line, should not hold force of law because their underlying scenarios do not apply to most cases today, such as the one involving Alleyne. Along this vein, Alleyne notes that to remove from the jury the factfinding power in sentencing hearings is to permit government abuse of the sentencing procedure. Alleyne next points out that it is simply unfair to permit the judge to find other facts in a sentencing decision because a defendant would not know, with specificity, what penalties may arise. A victory for Alleyne would make his mandatory minimum sentence five years instead of seven, but the judge would retain discretion in determining Alleyne’s actual sentence. The sentencing judge even acknowledged, before he made the finding of fact that Alleyne brandished a firearm, that it was within the judge’s power to not make any additional findings of fact and to just impose a sentence of seven years to life. So, even if Alleyne is victorious, he could still face the same sentence. Whether Alleyne’s sentence will be lowered would be decided on remand.
The government first responds by noting that judges have historically been afforded, consistent with the Constitution, factfinding discretion that does not impinge upon the jury’s factfinding role. The government next points out that Alleyne’s proposed expansion of the sorts of facts that increase a defendant’s range of punishment is irreconcilable with precedent and historical understandings. The government then turns to history, arguing that discretionary sentencing has always been accompanied by the ability for the sentencing judge to look to facts outside of the original indictment. Finally, the government argues that, regardless of what precedent the Court ultimately sides with, nothing should be overturned, as Alleyne suggests, because such a move would engender volatile legislative responses harmful to future participants in the legal system.
Government’s Ability to Punish
The way the law currently operates, the government has great flexibility to choose how criminal sentencing is imposed. Legislatures can create sentencing schemes that raise the mandatory minimum sentence through a judge’s finding that a particular fact is more likely than not to be true. Many laws using mandatory minimums already exist and the government has an interest in seeing that these laws can be enforced as they were written.
The American Civil Liberties Union ("ACLU") believes the Harris decision has created undue confusion. A ruling in favor of Alleyne could provide greater clarity and fairness for sentencing in drug-related cases. In drug cases, the federal appellate courts are split as to whether a jury or judge must make a finding of fact as to the quantity of drugs possessed; each view is based on a different interpretation of Harris. Overruling Harris would resolve this split, while upholding Harris would allow the courts to continue with different interpretations of Harris. The ACLU further argues that overruling Harris would not create any additional burdens on courts and prosecutors because the practice of requiring charged quantity findings is already practiced heavily and is not difficult to implement and execute. Not only does the ACLU contend that Harris has created differences in the way defendants are treated in different circuits, the ACLU further claims that Harris can lead to greater racial disparities in sentencing because mandatory minimum sentences are more likely to be imposed on black offenders.
According to the National Association of Criminal Defense Lawyers ("NACDL") and National Association of Federal Defenders ("NAFD"), what is at stake is not the ability of the courts to increase a mandatory minimum sentence but the ability of courts to increase the mandatory maximum sentence. The NACDL and NAFD contend that the statutes in this case create fixed sentences. Under that interpretation of the statutes, the options for sentencing were five years or seven years. If that were the case, then the courts could avoid disturbing their own precedent by ruling on mandatory maximum sentences rather than on mandatory minimum sentences. The NACDL and NAFD propose that the determination of facts that can raise a mandatory maximum should be left to a jury. The two groups contend that requiring prosecutors to prove beyond a reasonable doubt such facts as “brandishing” or “discharging” a firearm to a jury would neither create a new significant burden for prosecutors nor drastically alter sentences. The government supports this contention in pointing out that the “brandishing” requirement is not steep and is a fairly normal legislative exercise.
In this case, the Supreme Court will reconsider the statutory construction of 18 U.S.C. § 924(c). Alleyne argues that by independently finding that the defendant brandished a weapon, thereby increasing the statutory minimum for sentencing, the judge violated Alleyn’s constitutional rights. Alleyne insists that facts that have the effect of increasing the minimum sentencing threshold must be presented to the jury and proven beyond a reasonable doubt. In the alternative, Alleyne contends that brandishing a weapon is either an element of an offense, or providing for a fixed term imprisonment. By contrast, the United States argues that judicial factfinding does not undermine the defendant’s right to a jury trial. Moreover, the United States argues that brandishing a weapon is a sentencing factor, and not an element of an offense, nor a fixed-term imprisonment.
The Applicability of Apprendi. v. New Jersey
Here, Alleyne believes that the Supreme Court should overturn Harris and hold that a factor that increases punishment beyond the range that the court would otherwise have the ability to consider should be charged in an indictment, brought before a jury, and be proven beyond a reasonable doubt. Alleyne also asserts that these arguments are embodied in Apprendi v. New Jersey. Futhermore, Alleyne argues that Apprendi stands for the proposition that a legislature cannot remove these facts out of the realm of consideration by the jury. Alleyne asserts that the Harris holding-that a fact that imposes a minimum sentencing requirement does not change the range of statutorily imposed penalties-is erroneous. Alleyne reasons that to alter either the minimum or the maximum sentencing requirement is to subject the defendant to harsher penalties than before the change. Therefore, Alleyne points out that facts that result in a general increase in the penalty requires a finding by the jury. To do otherwise, Alleyne argues, is to break the “historical link” between a verdict and a judgment, and to undermine the role of a jury. For further support to the argument that Harris should be overruled, Alleyne argues that the Fifth Amendment mandates that facts be proven beyond a reasonable doubt. Alleyne also insists that the Sixth Amendment mandates that the jury is the factfinder, and only juries can find facts that subject defendants to harsher penalties.
By contrast, the United States argues that Harris should be reaffirmed, and that the holding of Apprendi v. New Jersey was limited to statutory maximums. The United States asserts that Apprendi safeguarded the role of the jury by precluding the legislature from removing from the consideration of the jury facts that would increase the statutory maximum for sentencing. Therefore, the United States argues that Apprendi is not applicable in this instance where the issue concerns statutory minimums. Because Apprendi concerned upper statutory limits on sentencing, the United States argues that Apprendi does not preclude the legislature from mandating that judicial factfinding may increase the threshold of a minimum sentence. In doing so, the United States contends that the legislature is simply offering additional clarification to factors in which the sentencing courts had power to consider. Therefore, the United States asserts that legislatures have the constitutional power to raise the minimum sentence due to certain factors, and that this does not give the judge more discretion than he or she otherwise would have.
Brandishing as an Element or a Sentencing Factor
Alleyne argues that the Court should construe the brandishing provision of the statute 18 U.S.C. § 924(c)(1)(A) as an element of an offense, or as providing for fixed terms of imprisonment. If the Court were to adopt either of these alternate interpretations of the statute, then Alleyne’s sentence would be unconstitutional because it would have been a violation of his Sixth Amendment right to a jury finding the fact upon which the fixed-term sentence, or aggravated offense, is contingent. Alleyne finds support that the Court should interpret the statute to provide for fixed terms of imprisonment by pointing out that the statute does not expressly state a life sentence maximum. In addition, Alleyne contends that the brandishing provision is an element, rather than a sentencing factor. Alleyne looks to the five-factor test the Court utilizes in determining whether something is an element: language, the risk of partiality, the severity of the penalty, legislative history, and tradition. Based on the wording of the statute, Alleyne concludes that the text establishes different offenses, with varying degrees of severity. Alleyne contends that this proves that brandishing a weapon makes the offense more severe than merely possessing a firearm, thus supporting the argument that it is an element. Moreover, Alleyne asserts that Congress defined the “brandish” as involving both a mental state and an act – two essential elements of a crime. In addition, Alleyne points out that brandishing a weapon has traditionally been treated differently under the law than discharging a firearm. Moreover, Alleyne insists that the legislative history proves that Congress intended for brandishing to be treated as an element. Alleyne contends that these factors suggest that brandishing is an element, and therefore must be found by the jury beyond a reasonable doubt.
However, the United States argues that brandishing of a weapon is a sentencing factor, and that the statute provides for a single offense with varying degrees of punishment. The United States asserts that Alleyne has not sufficiently proven, using the five-factor test, that brandishing a weapon is an element of the crime. The United States provides that by stating the base offense first, the structure of the statute actually suggests that brandishing is a sentencing factor. Moreover, the United States points out that Alleyne has not proven that the criminal provisions – act and mental state – are not commonly found in sentencing factors. The United States also cites to numerous sources, including reports and treatises, that show that brandishing has traditionally been considered a sentencing factor. Moreover, the United States asserts that the increases in severity of the sentences at issue are incremental, and do not weigh in favor of treating brandishing as an element. Furthermore, the United States argues that legislative history reveals that Congress intended brandishing to be treated as a sentencing factor because Congress rejected a bill treating brandishing as an element.
In this case, the Supreme Court is reexamining its previous decision in Harris v. United States. In Harris, the Court held that 18 U.S.C. § 924(c)(1)(A) defines a single offense, in which brandishing a firearm is a sentencing factor to be found by the judge, not an offense element to be found by the jury beyond a reasonable doubt. Alleyne argues that the brandishing of a gun in relation to a crime is a fact that a jury must find beyond a reasonable doubt because it is either an element of an offense, or it provides for a fixed-term imprisonment. However, the United States argues that brandishing a weapon should be treated as a sentencing factor. The outcome of this case will affect the scope of a judge’s discretion in factfinding.
- ACLU, Alleyne v. United States, (Dec. 12, 2012).
- Kansas Defenders, SCOTUS to Decide if Judicial Fact-Finding to Increase Mandatory Minimum Violates Right to Jury Trial (Oct. 5, 2012).