United States v. Devan Pierson
925 F.3d 913
| 7th Cir. | 2019Background
- Police executed a search warrant at an apartment after observing Devan Pierson with a white bag; Pierson had been driving a gray Chevrolet Malibu whose modified center console contained a .45 Taurus (the "car gun").
- In the apartment, officers found the white bag on top of Pierson’s shoes containing large quantities of heroin, cocaine, and methamphetamine and other drug-trafficking paraphernalia.
- A second .45 Taurus (the "kitchen gun") was recovered from a kitchen drawer; both guns were shown to the jury, though only the car gun was named in the indictment by make/model.
- Indictment charged: (I) possession with intent to distribute controlled substances, (II) possession of a firearm in furtherance of a drug trafficking crime (specifying the car gun), and (III) possession of a firearm as a felon (specifying the car gun).
- At trial the government introduced evidence about both guns, the court used pattern jury instructions that did not explicitly limit the firearm counts to the car gun, the jury had the indictment and verdict form in deliberations, and the prosecutor repeatedly emphasized the car gun in closing.
- Pierson was convicted on all counts; at sentencing the government filed a §851 information alleging two prior drug felonies, producing a mandatory life sentence for the drug count; Pierson appealed raising three main issues.
Issues
| Issue | Plaintiff's Argument (Pierson) | Defendant's Argument (Government) | Held |
|---|---|---|---|
| Constructive amendment of indictment by admission of kitchen gun evidence + untailored jury instructions | Evidence of unindicted kitchen gun plus jury instructions allowed conviction on an uncharged firearm → Fifth Amendment violation requiring reversal | Any potential broadening was not prejudicial; prosecutor’s repeated clarifications, indictment/verdict form, and evidence strongly tied guilt to the charged car gun | Court found a constructive amendment error under Leichtnam but not a plain error; no reversal because error was not "plain" and did not affect substantial rights |
| Apprendi challenge to sentence based on prior convictions not found by jury | Mandatory life increased penalty based on facts (two prior convictions) not found by jury; violates Apprendi/Alleyne | Almendarez-Torres preserves exception: prior convictions may be found by judge; Apprendi/Alleyne do not displace that exception | Rejected: Supreme Court precedent (Almendarez-Torres) forecloses Pierson’s claim |
| Applicability of First Step Act §401 (reduced mandatory term) to Pierson | First Step Act’s reduction should apply because appeal was pending when Act enacted; sentence should be vacated or reduced | §401(c) applies only if sentence had not been imposed by date of enactment; district-court imposition of sentence controls and Pierson was sentenced before the Act | Rejected: Act does not apply because sentence was imposed before enactment; convictions and sentence affirmed |
Key Cases Cited
- United States v. Leichtnam, 948 F.2d 370 (7th Cir.) (constructive amendment when indictment specified a particular firearm but evidence and untailored instructions allowed conviction based on other firearms)
- Olano v. United States, 507 U.S. 725 (1993) (plain-error review framework for forfeited objections)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts that increase statutory penalty must be found by jury, subject to prior-conviction exception)
- Almendarez-Torres v. United States, 523 U.S. 224 (1998) (prior-conviction exception allowing judge-found prior convictions for sentencing)
- United States v. Remsza, 77 F.3d 1039 (7th Cir.) (requirement that defendant show prejudice under plain-error review of constructive amendment)
- United States v. Duran, 407 F.3d 828 (7th Cir.) (plain-error review of constructive amendment and sufficiency of evidence tying charged firearm to offense)
- United States v. Ramirez, 182 F.3d 544 (7th Cir.) (example where constructive amendment without objection resulted in reversal because prejudice was clear)