United States v. Pizarro, 2014 U.S. App. LEXIS 21630

Pizarro-Morales was convicted of conspiracy to distribute cocaine and heroin and possession with intent to distribute cocaine; district court applied §841(b)(1)(A) triggering life/mandatory-minimum ranges based on drug quantity without jury findings; Alleyne v. United States announced that drug-quantity triggering minimums must be jury-found; appellate remands in Casas and Correy required credibility assessments and consideration of weapon enhancement; at third sentencing (2012) the court imposed 23 1/3 years on each count, but the panel remanded to address Alleyne errors and credibility findings; evidence showed conspiracy quantities exceeding 150 kg with 81 kg seized; multiple witnesses and PSRs were part of the quantity calculations; the court ultimately vacated the sentence and remanded for a fourth sentencing with explicit instructions to conduct credibility assessments and reconsider firearm enhancement; the opinion affirms convictions but vacates the sentence and remands.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Alleyne error in conspiracy quantity finding	Pizarro contends jury-alone finding required	Casas/Correy guidance required individualized quantity finding by jury	Harmless error; convictions affirmed despite instructional error
Alleyne error in possession quantity finding	Jury must find quantity triggering minimum	Previously instructed quantity irrelevant in pre-Alleyne trial	Harmless error; convictions affirmed with enhanced quantities
Remand duty on credibility and firearm enhancement	District court failed to conduct credibility assessments and to consider firearm enhancement	Remand instructions were binding and must be followed	Sentence vacated and remanded for fourth sentencing with credibility assessments and consideration of firearm enhancement
Preservation and harmlessness standard for instructional Alleyne errors	Alleyne claim preserved at sentencing despite appellate timing	Harmlessness should be reviewed under Neder/Chapman framework	Harmlessness reviewed under Chapman framework; appellate preservation discussed; overall outcome unaffected by errors

Neder v. United States, 527 U.S. 1 (U.S. 1999) (harmless-error test for omitted element; uncontested and overwhelming evidence rule discussed)
Alleyne v. United States, 133 S. Ct. 2151 (U.S. 2013) (mandatory minimums for drug quantities to be jury-found)
Burrage v. United States, 134 S. Ct. 881 (U.S. 2014) (drug quantity creates aggravated offenses; jury findings required)
Recuenco v. United States, 548 U.S. 212 (U.S. 2006) (non-structural error; harmless-error analysis applies to sentencing-factor errors)
Casas v. United States, 425 F.3d 23 (1st Cir. 2005) (remand for individualized quantity determinations; credibility assessments required on remand)
Correy v. United States, 570 F.3d 373 (1st Cir. 2009) (remand lasting credibility assessments for drug-quantity findings; leadership/weapon issues on remand)
Ramírez-Negrón v. United States, 751 F.3d 42 (1st Cir. 2014) (Alleyne error harmless beyond a reasonable doubt where no reasonable jury could find below threshold quantity)
Pérez-Ruiz v. United States, 353 F.3d 1 (1st Cir. 2003) (non-structural Apprendi error; government bears burden to show harmlessness beyond a reasonable doubt)
Newell v. United States, 658 F.3d 1 (1st Cir. 2011) (Apprendi error harmless when evidence of materiality overwhelming)
McDonough v. United States, 727 F.3d 143 (1st Cir. 2013) (unanimous panel; erroneous instruction may be harmless if evidence supports convictions)