Case Information
*1 Before LUCERO , BALDOCK , and HOLMES , Circuit Judges.
BALDOCK , Circuit Judge.
For this appeal, we must decide whether Alleyne v. United States, 133 S. Ct. 2151 (2013), allows a district court to enhance a criminal defendant’s Sentencing Guidelines range for a 21 U.S.C. § 841 conviction based on a judicial drug quantity *2 finding greater than what the jury found at trial. We hold that, so long as the court does not use its own drug quantity finding to alter the defendant’s statutory sentencing range, such an enhancement is entirely consistent with Alleyne. Here, nothing indicates the trial court altered Defendant Timothy Cassius’s statutory sentencing range in any way, so the court did not contravene Alleyne. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742, we affirm.
I.
To best understand Alleyne, one must go back at least to McMillan v.
Pennsylvania, 477 U.S. 79 (1986). There, the Supreme Court first attempted to
distinguish the “elements” of a crime, which must be found by a jury beyond a
reasonable doubt, from mere “sentencing factor[s],” which are “facts that are not
found by a jury but that can still increase the defendant’s punishment.” Alleyne, 133
S.Ct. at 2156–57 (quoting McMillan,
In Apprendi v. New Jersey,
Two years later, a sharply divided Court stressed, in line with McMillan , that
Apprendi did not apply to mandatory minimum sentences. Compare Harris v. United
States,
Over a decade passed, and then the Supreme Court granted certiorari to a
defendant who—like the Harris defendant—was convicted under 18 U.S.C.
*4
§ 924(c)(1)(A). See Alleyne,
An appeal in Alleyne was a lost cause so long as Harris remained good law.
After granting certiorari, however, the Supreme Court explicitly overruled Harris and McMillan and held the district court had violated the defendant’s Sixth Amendment right to trial by jury. Id. at 2155, 2164–65. Extending Apprendi, the Court held “facts that increase mandatory minimum sentences must be submitted to the jury,” as well. Id. at 2163. “When a finding of fact alters the legally prescribed punishment so as to aggravate it,” explained the Court, “the fact necessarily forms a constituent part of a new offense and must be submitted to the jury.” Id. at 2162. Significantly, Alleyne also made clear what the Constitution does not require: “Our ruling today does not mean that any fact that influences judicial discretion must be found by a jury. We have long recognized that broad sentencing discretion, informed by judicial factfinding, does not violate the Sixth Amendment.” Id. at 2163.
II.
Denver Police Department officers arrested Defendant Timothy Cassius in
*5
June 2006. At the time, he was carrying a briefcase that was found to contain crack
cocaine, digital scales, and a semi-automatic handgun. He was subsequently indicted
on over a half-dozen criminal counts. At trial, the Government put forth evidence
that the cocaine discovered in the briefcase totaled 20.869 grams. The jury then
found Defendant guilty under 21 U.S.C. § 841(a), which makes it unlawful to possess
a controlled substance (such as crack cocaine) with intent to distribute. After
classifying Defendant as a career offender under § 4B1.1 of the Sentencing
Guidelines, the district court sentenced Defendant to 25 years in jail for his § 841(a)
violation. (For all six of Defendant’s convictions combined, he received 30 years’
imprisonment.) We dismissed Defendant’s direct appeal. See United States v.
Cassius,
To determine the appropriate Guidelines range for resentencing, the district court held an evidentiary hearing to resolve the quantity of crack cocaine attributable to Defendant. At the end of this hearing, the court found Defendant responsible for 450.462 grams. Four days later, the Supreme Court issued Alleyne. Defendant quickly filed an objection, arguing the district court was violating Alleyne by utilizing its larger crack amount to drastically increase his sentencing range under the Guidelines. The court disagreed and sentenced Defendant to 204 months in *6 prison ( i.e. , 17 years) for the § 841 conviction. Overall, the court varied downward and sentenced Defendant to 264 months in jail—88 months below the bottom of the Guidelines range for all six of his convictions combined. Defendant appealed.
III.
On appeal, Defendant argues the district court committed procedural error in
calculating the applicable Guidelines range. Because Defendant preserved this
procedural argument below, we review for an abuse of discretion. See United States
v. Gordon,
Defendant contends drug quantity is an “element” of all 21 U.S.C. § 841 violations—meaning it must be found by a jury beyond a reasonable doubt—and therefore the district court erred by computing his Guidelines range using a crack cocaine amount the court found by a preponderance of the evidence. And drug quantity is plainly an element of any § 841 violation, Defendant insists, because maximum and minimum penalties available under § 841 vary depending on the drug quantity involved.
Defendant is correct that the § 841 statutory penalties vary based on the quantity of crack cocaine in question. Since mid-2010, a basic § 841 violation involving 280 grams or more of crack cocaine results in a statutory sentencing range of 10 years to life imprisonment, see id. § 841(b)(1)(A), a basic violation involving 28 grams or more results in a sentencing range of 5 years to 40 years imprisonment, see id. § 841(b)(1)(B), and a basic violation involving an unspecified amount results in a sentencing range with a maximum of 20 years imprisonment and no minimum, see id. § 841(b)(1)(C). These numbers increase if certain aggravating factors exist. For example, if a person is convicted under § 841(a) “after a prior conviction for a felony drug offense has become final”—as occurred here [1] —the statutory parameters will be as follows:
21 U.S.C. Crack cocaine Minimum Maximum § 841(b)(1)(C) Unspecified — 30 years § 841(b)(1)(B) 28 grams or more 10 years Life § 841(b)(1)(A) 280 grams or more 20 years Life In its brief, the Government argued that drug quantity is not an element under § 841(b)(1)(C)—unlike (b)(1)(A) and (b)(1)(B)—because that specific subsection “does not require proving to the jury any quantity of drugs.” The Government changed its tune at oral argument, however, asserting instead that drug quantity is an element of § 841 violations. Thankfully, we need not discern which of the *8 Government’s positions is correct, as nothing in the record here indicates the district court’s actions were improper. Even assuming (without deciding) that drug quantity is an element of all § 841 violations, the court properly treated it as such when it calculated Defendant’s statutory sentencing range (0 to 30 years) based on the jury’s drug quantity finding. The court only used its own drug quantity finding as a mere sentencing factor to help choose a sentence within the proper statutory range ( i.e. , 17 years). This duality is quite permissible.
Indeed, despite Defendant’s protestations to the contrary, Alleyne is perfectly
clear on this point. There, the Court emphasized that the district court only violated
the defendant’s rights during sentencing because it altered his
statutory
sentencing
range based on a finding not made by the jury. “When a finding of fact alters the
legally prescribed punishment so as to aggravate it,” the Court explained, “the fact
necessarily forms a constituent part of a new offense and must be submitted to the
jury.” Alleyne,
In sum, nothing in the record indicates the district court increased Defendant’s statutory sentencing range or otherwise altered his legally prescribed punishment; rather, by all indications the court used its larger drug quantity finding solely as a sentencing factor to help determine Defendant’s sentence within the prescribed statutory range. We find no error in this procedure under Alleyne.
This conclusion is fully supported by our sister circuits who have analyzed,
pursuant to Alleyne, a district court’s finding of a higher drug quantity when
calculating the Guidelines range for a § 841 conviction. See United States v.
Freeman,
Other circuits have held similarly, albeit on sentencing enhancements
unrelated to drug quantity. See United States v. Holder,
Cir. 2014) (per curiam) (unpublished) (“[A]lthough judicially determined facts are
no longer relevant after Alleyne to deciding the applicable mandatory minimum, the
factual findings needed to calculate a defendant’s advisory Guidelines range are still
within the district court’s province.”); United States v. Tuma,
Obviously, the deck is stacked against Defendant here, as not a single circuit
has ruled in favor of the position he espouses. Still, we would be remiss not to
address several of his attacks on our holding. For starters, Defendant points out we
have twice ruled recently that Alleyne does
not
allow a district court to calculate the
Guidelines range using judge-found facts. See United States v. Lake, 530 F. App’x
831 (10th Cir. 2013) (unpublished) (Lake I); United States v. Lake,
the government was required to prove the number of images [of child pornography] beyond a reasonable doubt because the enhancement increased his advisory Guidelines range. Yet Alleyne addressed ‘[a]ny fact that, by law, increases the penalty for a crime’ and specifically noted that the case ‘does not mean that any fact that influences judicial discretion must be found by a jury.’ The district court thus did not err . . . .” (internal citations omitted)).
Defendant also implies that perhaps the district court did view itself bound by a mandatory minimum sentence even though the jury’s finding merited no such thing. [3] Specifically, he cites the following statement made by the court at sentencing: “The drug related and firearm related felony offenses for which Mr. Cassius [has] been convicted are inherently extremely serious offenses which carry lengthy prison terms. In fact, many of the counts of conviction carry mandatory minimum sentences .” (emphasis added). This last line is particularly troubling, Defendant asserts. We are not so troubled. The sentence in question is ambiguous at worst, and it specifically acknowledges that some of Defendant’s convictions did not carry a mandatory minimum sentence. Indeed, the court made clear elsewhere at sentencing and in its subsequent statement of reasons that only one count required a mandatory minimum: Defendant’s conviction for carrying a firearm during and in relation to a drug crime. Most importantly, the Court explicitly discussed Alleyne *13 at sentencing, noted that it only applied where mandatory minimum sentences were increased due to judicial fact-finding, and that “[t]here is no such issue in this case.” In the end, we will not hang our hat on such a flimsy hook as the above quote.
Finally, Defendant insinuates our holding violates the will of Congress by
allowing a district court to “transform an element of a crime into a mere sentencing
factor through its choice of how to conduct sentencing.” But, as we explained above,
the court’s “choice of how to conduct sentencing” here was in clear accordance with
Supreme Court precedent, which in our view allows a district court to make any
relevant factual findings—even if that finding involves an element of the crime
found by the jury—so long as it does not alter a defendant’s statutory sentencing
range. See Alleyne,
AFFIRMED. [4]
Notes
[1] Defendant was originally convicted and sentenced under a prior, harsher version of 21 U.S.C. § 841. The district court re-sentenced Defendant in line with the present version, however, and neither party has objected to the court’s doing so.
[2] Notably, Ramírez-Negrón held drug quantity is not an element under 21 U.S.C. § 841’s “default” drug distribution crime— i.e. , distribution punishable under § 841(b)(1)(C). Id. at 49. This may indeed be correct, but as we explained above, (continued...)
[2] (...continued) we need not reach the issue because Alleyne ’s logic and principles apply here even if drug quantity is in some sense an element under every branch of § 841.
[3] Defendant admits, however, that the “district court did not explicitly say it felt constrained to impose a mandatory minimum sentence.”
[4] Defendant contends, alternatively, that even sentencing factors solely used
to calculate a Guidelines range must be found by a jury and not a judge. Defendant
concedes, however, that this argument is precluded by binding precedent. See, e.g.,
Alleyne,