United States v. McIvery
2015 U.S. App. LEXIS 20202
| 1st Cir. | 2015Background
- McIvery was indicted in 2009 in the District of Massachusetts on one count of conspiracy to possess crack cocaine with intent to distribute and two counts of possession with intent to distribute crack cocaine.
- Indictment stated five grams or more of cocaine base was involved in each count, under the prior law that triggered a five-year minimum.
- In 2011 the government sought a sentencing enhancement under § 851 based on prior convictions, potentially yielding a ten-year minimum.
- Congress then enacted the Fair Sentencing Act (FSA) increasing the crack quantity to 28 grams for the five-year minimum, with guidelines updated in 2010.
- Defendant pled guilty in 2011; district court sentenced him to concurrent ten-year terms, relying on a quantity exceeding 28 grams.
- Alleyne overruled Harris, requiring any fact that increases penalty to be submitted to a jury; the appeal was stayed pending Alleyne's decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Alleyne error is harmless error for mandatory minimums | McIvery argues Alleyne requires reversal; error is not harmless. | McIvery contends Harakaly allows harmless error review for preserved Alleyne errors. | Harmless error review applies; Alleyne error found but harmless beyond a reasonable doubt. |
| Whether the error constitutes a constructive amendment | Indictment did not reflect current law; error altered the theory after grand jury. | No constructive amendment; theory of the case remained the same; error due to intervening law only. | No plain error for constructive amendment; claim is dubious and fails. |
| Whether the government’s failure to charge prior state convictions affected the outcome under Almendarez-Torres | Almendarez-Torres may be undermined by Alleyne's reasoning; prior convictions should be charged. | Almendarez-Torres remains binding; prior convictions need not be charged. | Almendarez-Torres remains binding; no error reversal on this basis. |
| Whether the drug quantity finding was within the indictment and consistent with its terms | Quantity charged triggered mandatory minimum under then-existing law. | Quantity required by new law varied; may clash with indictment. | No functional mismatch; quantity aligned with indictment and later changes did not constitute a constructive amendment. |
Key Cases Cited
- Harris v. United States, 536 U.S. 545 (U.S. 2002) (set baseline for using set of facts to trigger penalties in indictments)
- Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (overruled Harris; any fact increasing penalty must be jury-found)
- Harakaly, 734 F.3d 88 (1st Cir. 2013) (harmless error review applied to preserved Alleyne errors)
- Pérez-Ruiz v. United States, 353 F.3d 1 (1st Cir. 2003) (applies harmless error standard to Apprendi-like challenges)
- Zavala-Martí v. United States, 715 F.3d 44 (1st Cir. 2013) (distinguishes different responses to post-A Alleyne changes; vs Harakaly approach)
- Almendarez-Torres v. United States, 523 U.S. 224 (U.S. 1998) (prior convictions are not elements requiring indictment and proof to a jury)
- Brandao v. United States, 539 F.3d 44 (1st Cir. 2008) (constructive amendment framework)
- Iacaboni v. United States, 363 F.3d 1 (1st Cir. 2004) (sentence-based constructive amendment considerations)
- Dubón-Otero v. United States, 292 F.3d 1 (1st Cir. 2002) (indictment notice and grand jury role in charging oscillations)