949 F.3d 30
1st Cir.2020Background
- Indicted for conspiracy to distribute/possess with intent to distribute heroin (alleged ≥1 kg); convicted by jury in November 2017.
- Government filed a 21 U.S.C. § 851 Information identifying appellant Alfredo Gonzalez's 1997 New Hampshire narcotics conviction, which would trigger a 20-year mandatory minimum under then-applicable law.
- After verdict and after the jury was discharged, the court discovered Juror No.127 had been residing in Massachusetts for ~15 months; his supplemental questionnaire (available before voir dire) reflected that residency.
- Gonzalez moved for a new trial under the Jury Selection and Service Act (JSSA) and the Sixth Amendment; the district court denied the motion (found waiver and no prejudice).
- At sentencing the court imposed the 20-year mandatory minimum; Gonzalez appealed raising (1) the nonresident juror claim and (2) sentencing challenges: vagueness of “felony drug offense,” failure to conduct the §851(b) colloquy, Apprendi challenge to use of prior conviction, and First Step Act retroactivity.
Issues
| Issue | Plaintiff's Argument (United States) | Defendant's Argument (Gonzalez) | Held |
|---|---|---|---|
| Nonresident juror (JSSA & Sixth Amendment) | Timely challenge was waived because juror questionnaire showing MA residence was available before voir dire; no prejudice shown | Juror was ineligible; counsel and court staff had inconsistent information; waiver should be excused | Waived under §1867(a); in any event no prejudice or bias shown; Sixth Amendment claim also waived; new trial denied |
| Vagueness of “felony drug offense” (Due Process/Johnson line) | Statutory definition §802(44) supplies clear, objectively ascertainable elements; not vague | Term is void for vagueness by analogy to ACCA residual-clause cases | Term is not unconstitutionally vague; no plain error in applying the enhancement |
| §851(b) colloquy omission | Omission harmless here because the 1997 conviction is >5 years old so §851(e) bars collateral challenge; review for plain error | Court must ask and advise defendant; failure to do so is error and should be reviewed more forgivingly | Reviewed for plain error (binding circuit precedent); omission harmless because §851(e) precludes challenge; no plain error |
| Apprendi challenge to using prior conviction to increase penalty | Almendarez‑Torres permits use of prior convictions at sentencing without jury finding | Apprendi requires any fact that increases penalty beyond statutory maximum be submitted to a jury; prior conviction not alleged in indictment | Almendarez‑Torres remains controlling; no Apprendi violation; enhancement permissible |
| First Step Act retroactivity (reduction of mandatory minimum from 20 to 15 years) | “Imposed” means pronounced/entered in district court; Gonzalez was sentenced before the Act and so is ineligible | Sentence on appeal is not final, so reduction should apply to pending appeals | Act applies only where sentence had not yet been imposed as of enactment; Gonzalez was sentenced in June 2018, so Act does not apply |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual‑clause holding vagueness precedent)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (residual‑clause vagueness in immigration context)
- United States v. Davis, 139 S. Ct. 2319 (2019) (residual‑clause vagueness for §924(c))
- Almendarez‑Torres v. United States, 523 U.S. 224 (1998) (prior convictions may be used to enhance sentences without jury finding)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing penalty beyond statutory maximum must be proved to a jury)
- McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548 (1984) (test for juror impartiality when voir dire answers are mistaken or incomplete)
- Sampson v. United States, 724 F.3d 150 (1st Cir. 2013) (standard for juror nondisclosure and bias analysis)
- United States v. Uribe, 890 F.2d 554 (1st Cir. 1989) (timeliness/waiver under JSSA)
- United States v. Curet, 670 F.3d 296 (1st Cir. 2012) (review standard for §851(b) colloquy claims)
- United States v. Novod, 923 F.2d 970 (2d Cir. 1991) (timely objection to juror residency can cure JSSA defects)
- United States v. Haywood, 452 F.2d 1330 (D.C. Cir. 1971) (juror ineligibility for residency does not automatically show bias)