United States v. Herrerra Pena, 2014 U.S. App. LEXIS 2172

Pena pleaded guilty to two drug offenses in a scheme involving 1.6 kg of heroin and a death linked to a user who died after a distribution,” but the plea did not admit death resulting.
Alleyne error occurred when sentencing proceeded without a jury finding death resulting, creating a higher mandatory minimum.
District court found death resulting by preponderance and imposed the 20-year minimum; Alleyne later required jury proof beyond a reasonable doubt.
Pena argued death resulting was an element requiring jury verdict; government argued it was a sentencing factor proper to court finding.
Alleyne was decided after sentencing; the case on appeal raised whether remand could include empaneling a sentencing jury to reprove death resulting.
Court held the government’s proposed sentencing-jury remand is foreclosed on these facts and that remand should be for resentencing by the district judge without a sentencing jury.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a sentencing jury may be empaneled on remand after Alleyne error	Pena: jury-only issue; death resulting not admitted	Herrerra Pena: not an element; sentencing jury improper	Unclear for remand; court rejected sentencing-jury approach on these facts
Whether the remedy should be remand to district court for resentencing	Pena: remand appropriate for district court resentencing	Government: sentencing jury needed to cure error	Remand required, but without a sentencing jury; use district court resentencing only
Whether permitting a sentencing jury would violate double jeopardy or finality concerns	Pena: would risk double jeopardy and plea withdrawal	Government: could be permissible in some circuits	Double jeopardy concerns noted and avoided; finality and plea integrity cautioned against; process denied here
Whether death resulting should be treated as an element of a separate crime and thus require jury finding	Pena: death resulting is an element; must be jury-found	Government: death-resulting is a sentencing factor	Alleyne governs; death resulting is an element that must be proved beyond a reasonable doubt
What is the proper remedy under Alleyne for reversible error when not involving a prior conviction	Pena: standard remand suffices	Government: allow sentencing jury on remand	Remand to district court for resentencing; no sentencing jury on remand

United States v. Alleyne, 133 S. Ct. 2151 (U.S. 2013) (mandatory minimums must be proved to jury beyond a reasonable doubt when they raise elements of an offense)
Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (any fact increasing punishment beyond the statutory maximum must be pleaded, proven to a jury beyond a reasonable doubt)
Harris v. United States, 536 U.S. 545 (U.S. 2002) (distinguishes mandatory minimums from sentencing-range enhancements; not necessarily jury-found facts)
United States v. O'Brien, 560 U.S. 218 (U.S. 2010) (whether a firearm fact is an element or a sentencing factor depends on the context)
United States v. Booker, 543 U.S. 220 (U.S. 2005) (guidelines advisory; possible use of sentencing jury in some contexts)
United States v. Henry, 282 F.3d 242 (3d Cir. 2002) (sentencing jury questions after Apprendi in some circuits)
United States v. Keene, 341 F.3d 78 (1st Cir. 2003) (discusses bifurcated proceedings in some contexts)
United States v. DesMarais, 938 F.2d 347 (1st Cir. 1991) (notes on bifurcated proceedings)
United States v. Dominguez Benitez, 542 U.S. 74 (U.S. 2004) (finality concerns with guilty-plea proceedings)
Kercheval v. United States, 274 U.S. 220 (1927) (acceptance of guilty pleas as conclusive convictions)