United States v. Harakaly , 734 F.3d 88 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-2274
UNITED STATES OF AMERICA,
Appellee,
v.
ERIK HARAKALY,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Stahl, and Thompson,
Circuit Judges.
William M. White, Jr., with whom William M. White, Jr. &
Associates was on brief, for appellant.
Jennifer H. Zacks, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
October 31, 2013
STAHL, Circuit Judge. Erik Harakaly pleaded guilty to
conspiracy to possess with intent to distribute methamphetamine.
After finding that Harakaly was responsible for a drug quantity
that triggered a ten-year mandatory minimum sentence and that he
was ineligible for safety-valve relief from that minimum, the
district court sentenced him to ten years' imprisonment. Under the
Supreme Court's subsequent decision in Alleyne v. United States,
133 S. Ct. 2151, 2155 (2013), the district court erred in making
the factual finding of drug quantity necessary to impose the
mandatory minimum where the quantity was neither alleged in the
indictment nor admitted by Harakaly at the time of his guilty plea.
Nevertheless, finding the error to be harmless, and finding no
merit in Harakaly's other contentions, we affirm.
I. Facts & Background
During the course of investigating Scott Ramsden for
alleged drug distribution, the Massachusetts State Police and the
Drug Enforcement Agency determined that Harakaly was Ramsden's
primary supplier of methamphetamine. On August 10, 2010, law
enforcement officials intercepted communications between the two
that indicated that Harakaly had recently sent a shipment of drugs
to a courier, Edmund Levine, for delivery to Ramsden. Shortly
thereafter, a Massachusetts state trooper stopped Levine's vehicle
and found a substance in the trunk that was later determined to be
189.9 grams of 99.8% pure methamphetamine. Levine advised
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investigators that Harakaly had sent him the methamphetamine with
directions to deliver it to Ramsden.
A grand jury returned a one-count indictment on September
23, 2010, charging Harakaly, Ramsden, Levine, and two other
individuals with conspiracy to possess with intent to distribute,
and to distribute, methamphetamine and gamma hydroxbutyric acid, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. A superseding
indictment was returned on October 27, 2011, charging the same
individuals, minus Ramsden, with conspiracy to possess with intent
to distribute, and to distribute, methamphetamine, in violation of
21 U.S.C. §§ 841(a)(1) and 846.
Neither indictment specified a drug quantity. At
Harakaly's arraignment on each, the government stated that the
maximum sentence he faced was twenty years' imprisonment.
On January 20, 2012, Harakaly pleaded guilty without a
plea agreement. When reciting the maximum penalties, the
government erroneously stated that he was subject to a maximum of
life imprisonment and a ten-year mandatory minimum "as charged in
Count One of the indictment." However, the government promptly
clarified that, because the indictment did not specify any drug
quantity, the default statutory maximum would be twenty years, see
21 U.S.C. § 841(b)(1)(C), but asserted that sufficient evidence
would be presented for the court to find, by a preponderance of the
evidence, that Harakaly was accountable for more than fifty grams
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of methamphetamine, triggering a ten-year mandatory minimum
sentence, see id. § 841(b)(1)(A). When asked whether Harakaly
conceded any drug quantity, defense counsel stated that he did not.
The government then summarized the evidence that it would
have presented and proved beyond a reasonable doubt at trial,
including: (1) Levine's admissions to investigators that Harakaly
supplied the 189.9 grams of methamphetamine found in his car and
that he had previously made around ten deliveries, each containing
approximately five ounces of methamphetamine, to Ramsden on
Harakaly's behalf, totaling approximately 1,400 grams; and (2)
evidence that Harakaly was Ramsden's sole supplier of
methamphetamine, and that Ramsden would send Harakaly payments,
usually in the amount of $10,000, via FedEx, in exchange for
methamphetamine, usually in the amount of five ounces. The court
then asked Harakaly whether, as alleged by the government, he had
been involved in an agreement to distribute methamphetamine, "as of
yet in an undetermined quantity," through Ramsden and others.
Harakaly disputed the assertion that he was Ramsden's sole
supplier, but said that he otherwise agreed with the government's
assertions. The court accepted his guilty plea.
Following a presentence investigation, the probation
department prepared a presentence report (PSR) that estimated that
Harakaly was responsible for between five and fifteen kilograms of
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methamphetamine,1 corresponding to a base offense level of 36.
After a three-level increase based on the determination that
Harakaly had occupied a managerial or supervisory role in the
conspiracy and a three-level decrease for acceptance of
responsibility, his total offense level was 36. Combined with a
criminal history category of I, Harakaly's sentencing guidelines
range was 188–235 months. The report also indicated that his
responsibility for more than fifty grams of methamphetamine
subjected him to a ten-year mandatory minimum sentence.
Harakaly made multiple objections to the PSR, disputing,
among other things: (1) the accuracy of the drug-quantity
calculation, arguing that he was responsible for only 1.5 to 5
kilograms of methamphetamine; (2) the applicability of the role
enhancement; (3) the constitutionality under Apprendi v. New
Jersey, 530 U.S. 466 (2000), of the imposition of a mandatory
minimum sentence based upon a finding, by a preponderance of the
evidence, of the triggering drug quantity where the quantity was
neither alleged in the indictment, nor submitted to and voted on by
1
This calculation was based upon: (1) forty-four FedEx
receipts for shipments of $10,000 in cash from Ramsden to Harakaly
in exchange for five ounces of methamphetamine (141.7 grams per
shipment x 44 shipments = 6.23 kilograms); (2) Ramsden's proffer
that, between January 2009 and September 2010, he purchased
approximately five ounces of methamphetamine from Harakaly every
two to four weeks (estimated to amount to 3.7 kilograms); and (3)
Levine's statement that he had made approximately ten deliveries,
of approximately five ounces of methamphetamine each, to Ramsden on
Harakaly's behalf (141.7 grams per delivery x 10 deliveries = 1.417
kilograms).
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the grand jury, nor admitted by him during the plea hearing; and
(4) the applicability of the ten-year mandatory minimum,
corresponding to § 841(b)(1)(A), where the government had
continuously represented that his maximum sentence was twenty
years, corresponding to § 841(b)(1)(C). He repeated these
arguments in his sentencing memorandum and in two sentencing
hearings, with the first, on August 6, 2012, focusing on drug
quantity and the second, on October 10, 2012, focusing on the role
enhancement.
At the first sentencing hearing, the district court
rejected Harakaly's Apprendi argument, noting that, under the
then-current state of law, Apprendi and its progeny applied only to
facts that increased the penalty beyond the otherwise-prescribed
statutory maximum. With respect to the notice problem raised by
the government's repeated indication that it was proceeding under
§ 841(b)(1)(C), the court stated that Harakaly could move to
withdraw his guilty plea if he believed it was not made
intelligently -- an offer that he rejected. Finally, the court
suggested the possibility of holding an evidentiary hearing
regarding drug quantity. At that point, after conferring with
counsel, Harakaly conceded responsibility for a quantity
corresponding to a base offense level of 34 -- which would still
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exceed the ten-year mandatory minimum triggering quantity -- with
the intent of arguing for safety-valve relief.2
At the second sentencing hearing, the court noted that
the Supreme Court was then considering whether the Apprendi
doctrine extends to judicial findings of fact that trigger
mandatory minimum sentences. After the government proffered
Ramsden's testimony and various exhibits regarding Harakaly's role
in the conspiracy, the district judge found, with evident
reluctance, that the government had met its burden in demonstrating
the propriety of a role enhancement:
I have looked for authority. I cannot
find it . . . . I do not see authority that
allows me to disregard the safety valve
considerations . . . . Having heard the
testimony this morning and having reviewed the
exhibits, and recognizing that the standard is
a preponderance-of-the-evidence standard, I do
not think there is any basis on which I could
not [sic] conclude that Mr. Harakaly did not
act as a manager . . . . I think the
government's evidence probably would satisfy a
reasonable-doubt standard, although I am not
going to venture that opinion because,
depending on what the Supreme Court does with
the case currently before it, we may be
revisiting this issue in the near future,
again, depending on the outcome of that
decision.
. . . .
2
Under the safety-valve provision, if the sentencing court
makes five specific factual findings, it may impose a sentence
below the mandatory minimum that would otherwise apply. See 18
U.S.C. § 3553(f); U.S.S.G. § 5C1.2.
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I think the sentence, again, is
significantly greater than warranted under the
circumstances, but, again, this is one of
those cases where Congress has dictated the
sentence, and I am, of course, sworn to obey
the law, and I am going to have to in this
circumstance.
Harakaly was sentenced to a ten-year term of incarceration followed
by a five-year term of supervised release. After announcing the
sentence, the court again made reference to the pending Supreme
Court decision, and "specifically for the record preserve[d]
[Harakaly's] right, should the Supreme Court change the law with
respect to judicial fact finding regarding sentencing matters."
Defense counsel affirmed that the record should so reflect. This
appeal followed.
II. Analysis
Harakaly raises three primary arguments on appeal. He
argues that the district court improperly imposed a ten-year
mandatory minimum sentence under § 841(b)(1)(A) because: (1) the
attributable drug quantity was not stated in the indictment, nor
was it proven to a jury beyond a reasonable doubt or stipulated by
Harakaly in his plea; (2) his role in the conspiracy also was not
stated in the indictment, nor was it proven to the jury beyond a
reasonable doubt or stipulated by Harakaly in his plea; and (3) it
was error to fail to give him proper notice of the applicability of
the mandatory minimum sentence where the government had repeatedly
indicated that it was proceeding under § 841(b)(1)(C).
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A. Alleyne Error
1. The Alleyne Decision
When Harakaly commenced this appeal, his arguments were
squarely foreclosed by Supreme Court and First Circuit precedent.
In Apprendi, the Supreme Court held that, "[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." 530 U.S. at 490.
However, in Harris v. United States, 536 U.S. 545 (2002), the
Supreme Court distinguished facts that increase a sentence beyond
a statutory maximum from facts that trigger or increase a mandatory
minimum sentence. The Court held that, where a defendant had been
convicted of carrying a firearm in relation to a drug-trafficking
offense, the district court did not err by making a factual finding
that he had brandished the weapon, thus exposing him to a
heightened mandatory minimum sentence. Id. at 568. The Court
stated that "brandishing" was a sentencing factor, rather than an
element of the offense, that "need not be alleged in the
indictment, submitted to the jury, or proved beyond a reasonable
doubt." Id. Under Harris, a district court could make drug-
quantity determinations, by a preponderance of the evidence, that
triggered or increased mandatory minimum sentences. See, e.g.,
United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003).
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However, after Harakaly filed his opening brief on
appeal, but before the government filed its brief, the Supreme
Court handed down its decision in Alleyne. Overruling Harris, the
Court held that the Sixth Amendment right to trial by jury requires
that the Apprendi doctrine apply equally to facts that increase a
mandatory minimum sentence.3 See 133 S. Ct. at 2155. Therefore,
Harakaly's opening argument -- that this court should reconsider
its earlier cases holding that facts that increase the mandatory
minimum are sentencing factors, rather than elements of the crime,
that may be found by the court by a preponderance of the evidence
-- has since been settled in his favor by the Supreme Court.4
2. Standard of Review
Harakaly preserved his Alleyne claims by objecting to the
imposition of a mandatory minimum sentence based upon judicial
findings, by a preponderance of the evidence, of drug quantity and
his managerial role. This court reviews unpreserved Apprendi
errors for plain error and preserved Apprendi errors for harmless
error. See United States v. Pérez-Ruiz, 353 F.3d 1, 14, 17 (1st
Cir. 2003). Since Alleyne is an extension of the Apprendi
3
We note that Alleyne did not reach the question of the
continued vitality of Almendarez-Torres v. United States, 523 U.S.
224 (1998), in which the Court "recognized a narrow exception to
this general rule for the fact of a prior conviction." Alleyne,
133 S. Ct. at 2160 n.1. Likewise, we need not do so today.
4
Because Alleyne was decided before Harakaly's case became
final, it applies to his direct appeal to this court. See Griffith
v. Kentucky, 479 U.S. 314, 328 (1987).
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doctrine, the same standards should apply to Alleyne errors.
Accord United States v. Hall, ___ F. App'x ___, 2013 WL 5226994, at
*1–2 (11th Cir. Sept. 18, 2013) (unpublished per curiam opinion)
(reviewing unpreserved Alleyne error for plain error); United
States v. Hernandez, ___ F.3d ___, 2013 WL 4804323, at *5 (7th Cir.
Sept. 10, 2013) (same); United States v. Mack, ___ F.3d ___, 2013
WL 4767176, at *10–12 (6th Cir. Sept. 6, 2013) (same); United
States v. Baylor, ___ F. App'x ___, 2013 WL 3943145, at *13 (4th
Cir. Aug. 1, 2013) (unpublished per curiam opinion) (applying
harmless-error review to preserved Alleyne/Apprendi error).
In his reply brief, Harakaly suggests that the
harmless-error standard does not apply because Alleyne established
a constitutional error. However, he does not elaborate on this
claim; it is contained entirely in a heading preceding a section
that makes no mention of the standard of review an appellate court
should apply to an Alleyne error, focusing instead on the
reasonable-doubt standard that the district court must apply, in
the first instance, to all elements of the offense. "[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived." United States v.
Zannino, 895 F.2d 1, 17 (1st Cir. 1990). In any event, the Supreme
Court has made abundantly clear that most constitutional errors are
subject to harmless-error review; only in rare cases will they be
deemed structural errors that would always require reversal. See,
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e.g., Washington v. Recuenco, 548 U.S. 212, 222 (2006) (holding
that preserved Apprendi/Blakely error is not structural and is
subject to harmless-error review); United States v. Cotton, 535
U.S. 625, 631 (2002) (treating unpreserved Apprendi error as
non-structural error subject to plain-error review). In light of
the long line of cases subjecting preserved Apprendi errors to
harmless-error review, there would appear to be no basis for
finding Alleyne error to be one of those rare cases to which
harmless-error review does not apply.5
Under harmless-error review, because an Apprendi (and
therefore Alleyne) error is of constitutional dimension, "the
government must prove that the error was harmless beyond a
reasonable doubt, or, put another way, that it can fairly be said
beyond any reasonable doubt that the assigned error did not
contribute to the result of which the appellant complains."
Pérez-Ruiz, 353 F.3d at 17.
5
We recognize that some courts have summarily vacated
sentences, without any discussion of the appropriate standard of
review, where there was Alleyne error below. See, e.g., United
States v. Donovan, ___ F. App'x ___, 2013 WL 4792866, at *7 (6th
Cir. Sept. 9, 2013) (unpublished) (vacating sentence, with no
discussion of harmlessness or plain error, based on judicial
finding that firearm was discharged where jury convicted only of
using firearm); United States v. Lira, 725 F.3d 1043, 1044–45 (9th
Cir. 2013) (same). With respect, absent any indication that these
courts even considered the appropriate standard of review, the
cases do not persuade us that a different standard should apply to
Alleyne error than to Apprendi error.
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3. Drug-Quantity Calculation
The parties agree that, because the drug quantity that
triggered the mandatory minimum sentence was not alleged in the
indictment or stipulated by Harakaly at the time of his guilty
plea, the district court's drug-quantity finding constituted
Alleyne error.
The government argues that, in light of overwhelming and
uncontested evidence that Harakaly was responsible for more than
fifty grams of methamphetamine, the Alleyne error was harmless
beyond a reasonable doubt. "In drug-trafficking cases involving
Apprendi errors, we sometimes have treated the presence of
overwhelming evidence of the requisite drug types and quantities as
a proxy for harmlessness." Pérez-Ruiz, 353 F.3d at 18 (internal
quotation marks omitted) (sentencing following jury trial); see
also United States v. Morgan, 384 F.3d 1, 8 (1st Cir. 2004)
(sentencing following guilty plea; noting, in dicta, that, "[i]n
the post-Apprendi world, this court adopted a rule that any such
error in sentencing should be held harmless so long as the evidence
for the trial judge's factual findings is overwhelming and no
reasonable jury could have disagreed with them"). Harakaly does
not seriously contest the finding that he was responsible for more
than fifty grams of methamphetamine;6 his argument is primarily
6
To the extent that he makes this argument at all, it is only
in his reply brief and largely consists of challenges to the
admissibility of Levine's out-of-court statements and to Ramsden's
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directed to the procedure by which it was made. But the latter
argument establishes only that there was Alleyne error; it says
nothing about whether that error was harmless.
The evidence that Harakaly was responsible for more than
fifty grams of methamphetamine was overwhelming. The delivery that
the police intercepted, taken alone, was nearly four times the
triggering amount. Levine told police that he had received the
methamphetamine from Harakaly to deliver to Ramsden, as he had done
around ten times before, estimating the total quantity to be
approximately 1,400 grams. While expressly not conceding total
drug quantity, Harakaly did acknowledge the accuracy of this
account during the change-of-plea hearing. Leaving aside Levine's
statements regarding the ten other deliveries, simply by admitting
that he had provided the single shipment of drugs that police found
in Levine's vehicle, Harakaly has acknowledged responsibility for
a quantity of drugs that far exceeds the triggering amount. In
addition, Ramsden testified under oath that Levine had made about
ten deliveries of approximately five ounces (141.7 grams) each on
Harakaly's behalf. He also testified that Harakaly used other
credibility. While these challenges may call into question the
determination that the weight exceeded five kilograms, they do
little to dislodge the overwhelming evidence that he was
responsible for some amount of methamphetamine in excess of fifty
grams. He also argues that the government may not rely on
information he gave and admissions he made during his safety-valve
proffer because he was granted immunity unless he were to testify.
Because that information is unnecessary to a determination of the
issues herein, it has been omitted from this opinion.
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couriers, besides Levine, to deliver shipments of methamphetamine
to him. Ramsden stated that at least forty-three or "almost all"
of forty-four FedEx receipts presented by the government were for
shipments of $10,000 to Harakaly, each (aside from some smaller
"test" shipments at the outset of their arrangement) representing
payment for approximately five ounces of methamphetamine. Any one
of these shipments far exceeds the triggering quantity.7 Had this
evidence been presented, no reasonable jury could have found that
Harakaly was responsible for under fifty grams of methamphetamine.
See Morgan, 384 F.3d at 8.
Harakaly's additional statements and admissions buttress
this conclusion. He lodged many objections to the PSR's
drug-quantity calculation, but even after accounting for all of his
requested adjustments, he stated that he was responsible for 1,500
to 5,000 grams.8 During the first sentencing hearing, he conceded
7
We recognize that, where there has been Alleyne or Apprendi
error and the relevant fact-finding was based solely upon co-
conspirator testimony, the error may not be harmless. But, in
United States v. Soto-Beníquez, we also rejected the contention
that such an error could never be harmless, at least where that
testimony was given to (and apparently believed by) a jury that
voted to convict the defendant of participation in the conspiracy.
356 F.3d 1, 47 (1st Cir. 2004). Thus, we will consider the co-
conspirator testimony as but one factor in our analysis, giving it
neither dispositive weight nor no weight at all. We note, however,
that, in light of the strength of the other evidence in this case,
we would reach the same result even without Ramsden's testimony.
8
For example, Harakaly admitted making the following
shipments of methamphetamine to Ramsden: five or more two-ounce
shipments, five or more three-ounce shipments, at least five four-
ounce shipments, and an unspecified number of five-ounce shipments.
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responsibility for the quantity of drugs that corresponds to a base
offense level of 34, which is also 1,500 to 5,000 grams. This
court has held that there is no Apprendi violation where the fact
triggering an increased maximum sentence was "anchored in the
appellant's own admission." United States v. Eirby (Eirby II), 515
F.3d 31, 36 (1st Cir. 2008). In Eirby II, the defendant stipulated
to a triggering quantity before the sentence was imposed. Noting
that "[f]actfinding premised on a defendant's admissions is not a
practice invalidated by Apprendi," id., the court held that there
was no error. Here, the government concedes error, so the court
need not determine whether Harakaly's concessions -- when not made
as part of his guilty plea and when not in the form of a formal
stipulation -- are sufficient to shield the sentence from
harmless-error review altogether. But these concessions, at a
minimum, reinforce the determination that any error was harmless.9
Harakaly contends on appeal that his concessions were
made against the backdrop of a preponderance-of-the-evidence
standard and that he never conceded that the government could prove
any of these quantities beyond a reasonable doubt. This claim is
unpersuasive for several reasons. First, it is belied by the
A single two-ounce shipment is equivalent to nearly 56.7 grams,
thus, by itself, triggering the ten-year mandatory minimum.
9
We need not decide whether these concessions would
independently suffice to establish harmlessness; we rely on them
here only to the extent that they corroborate Harakaly's earlier
concessions at his Rule 11 hearing.
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record. At the change-of-plea hearing, the government indicated
that its recitation would summarize what "[t]he government, were it
to proceed to trial, would prove beyond a reasonable doubt with
competent evidence." Although this preface could be construed to
have applied only to the remainder of that sentence (that the
government conducted an investigation into Ramsden's drug
distribution), the far more reasonable construction is that the
reasonable-doubt standard applied to the government's entire
recitation. At the conclusion of this recitation, Harakaly stated
that, aside from the assertion that he was Ramsden's sole
methamphetamine supplier, he agreed with "in essence, everything
[the assistant U.S. attorney] said." This statement was
unqualified; Harakaly did not indicate that he was applying a
different evidentiary standard than the one the government
indicated at the outset. Nor did he make any such qualification at
any other time. Second, even if Harakaly believed that he was
conceding only that the government's evidence satisfied the
preponderance-of-the-evidence standard, as detailed above, the
evidence in this case goes far beyond his own admissions. In
addition, the record would likely have been yet more robust had
Harakaly not, as soon as the district court suggested holding an
evidentiary hearing on drug quantity, conceded responsibility for
an amount corresponding to a base offense level of 34. Of note, he
made this concession with full knowledge that he would be exposed
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to a ten-year mandatory minimum unless he were deemed eligible for
safety-valve relief. In sum, we can find no support in the record
for Harakaly's claim that he did not concede that the government
could prove beyond a reasonable doubt a sufficient quantity to
trigger the ten-year mandatory minimum sentence. Moreover, the
admissions in his objections to the PSR and during the sentencing
hearing account for only a portion of the drug-quantity evidence.
Thus, we do not find his claim persuasive.
Because the evidence of the triggering drug quantity was
overwhelming, we hold that the Alleyne error was harmless beyond a
reasonable doubt.
4. Role Enhancement
Harakaly argues that the district court committed Alleyne
error by making a judicial finding, by a preponderance of the
evidence, that he occupied a managerial role in the conspiracy, and
thus was not eligible for safety-valve relief from the mandatory
minimum sentence.
Alleyne, by its terms, applies to facts that "increase[]
the mandatory minimum." 133 S. Ct. at 2155. Harakaly suggests
that Alleyne applies more broadly to any fact that "mandate[s] a
greater punishment than a court would otherwise have had discretion
to impose." We do not read Alleyne so expansively. A fact that
precludes safety-valve relief does not trigger or increase the
mandatory minimum, but instead prohibits imposition of a sentence
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below a mandatory minimum already imposed as a result of the guilty
plea or jury verdict. See United States v. Morrisette, 429 F.3d
318, 324–25 (1st Cir. 2005) ("Blakely, and by extension Booker,
expressly relate only to the constitutionality of judicial
factfinding which results in sentencing enhancements, not to
sentencing reductions.").
Harakaly's formulation stretches Alleyne well beyond its
actual holding; would invalidate Congress's command that "the court
find[] at sentencing" the relevant safety-valve factors, see 18
U.S.C. § 3553(f); and introduces problematic practical
considerations. Before granting safety-valve relief, the
sentencing judge must make five specific factual findings. See id.
§ 3553(f)(1)–(5). Under Harakaly's formulation, safety-valve
relief could not be denied at sentencing unless the judge had
previously submitted to the jury special verdict questions
corresponding to the safety-valve factors, or, in the plea context,
the guilty plea expressly recited the absence of one or more
factors. This arrangement would put the burden on the government
to prove that the safety valve is inapplicable, but it has long
been held that "[t]he defendant plainly has the burden of proving,
by a preponderance of the evidence, entitlement to relief under
[§] 3553(f)." United States v. Miranda-Santiago, 96 F.3d 517, 529
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n.25 (1st Cir. 1996).10 This allocation of the burden makes perfect
sense; were it otherwise, the government would be required to
disprove the safety-valve factors before the defendant ever
expressed an intent to seek a sentencing reduction via the safety
valve. Where the government seeks imposition of a mandatory
minimum sentence, it is "perfectly able to 'charge facts upon which
a mandatory minimum sentence is based in the indictment and prove
them to a jury.'" Alleyne, 133 S. Ct. at 2164 (Sotomayor, J.,
concurring) (quoting Harris, 536 U.S. at 581 (Thomas, J.,
10
The Second Circuit has articulated this rule effectively:
The operation of the safety-valve provision
does not admit to imposing on the government
the burden to disprove a defendant's
eligibility for relief from a
mandatory-minimum sentence. Once the
government has carried its burden to prove
those facts which trigger imposition of a
mandatory-minimum sentence, the safety valve
operates to impose on the defendant the burden
to prove that he is eligible for relief from
the mandatory-minimum sentence. The safety
valve certainly was not intended to impose on
the government five additional elements that
it must prove before triggering the imposition
of a mandatory-minimum sentence.
United States v. Jimenez, 451 F.3d 97, 102–03 (2d Cir. 2006)
(citations omitted).
Every circuit follows this rule. See, e.g., United States v.
Polk, 715 F.3d 238, 253 (8th Cir. 2013); United States v. Henry,
673 F.3d 285, 292–93 (4th Cir. 2012); United States v. Gales, 603
F.3d 49, 52–53 (D.C. Cir. 2010); United States v. Mejia-Pimental,
477 F.3d 1100, 1104 (9th Cir. 2007); United States v. Haynes, 468
F.3d 422, 427 (6th Cir. 2006); United States v. Stephenson, 452
F.3d 1173, 1179 (10th Cir. 2006); Jimenez, 451 F.3d at 102–03;
United States v. McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006);
United States v. Johnson, 375 F.3d 1300, 1302 (11th Cir. 2004);
United States v. Galbraith, 200 F.3d 1006, 1016 (7th Cir. 2000);
United States v. Sabir, 117 F.3d 750, 754 (3d Cir. 1997).
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dissenting)). The government, however, is not "perfectly able" to
predict, at the time of charging, trial, or plea negotiations, what
forms of relief, if any, the defendant may seek at sentencing.11
We thus hold that the jury verdict or guilty plea sets
the baseline sentencing range based upon the minimum and maximum
sentences, if any, authorized by statute for the offense of
conviction. Judicial fact-finding that precludes safety-valve
relief is permissible because it does not increase that baseline
minimum sentence. Therefore, the district court did not commit
Alleyne error in making a finding, by the preponderance of the
evidence, that Harakaly occupied a managerial role in the
conspiracy.
B. Lack of Notice in the Indictment
Harakaly argues that, where the government repeatedly
indicated that it was proceeding under § 841(b)(1)(C) by stating
that the maximum incarceration penalty he faced was twenty years,
the district court's imposition of the mandatory minimum sentence
found in § 841(b)(1)(A) "defeats rational notice to the accused."
He states that his Fifth Amendment due process and Sixth Amendment
rights were "implicate[d]" when the government induced him to rely
on its twenty-year representation when tendering his guilty plea,
11
Moreover, one of the safety-valve factors -- whether the
defendant, "not later than the time of the sentencing hearing,"
made a truthful and full proffer to the government, § 3553(f)(5) --
cannot, by its terms, be known at the time the jury renders its
verdict or the defendant tenders his plea.
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and only later, at sentencing, did "the switch occur before his
eyes." This claim is flatly contradicted by the record and
foreclosed by our precedent.
Before the district court accepted Harakaly's plea, the
government discussed at length its intent to seek a ten-year
mandatory minimum sentence and the permissibility, under
then-current First Circuit case law, of judicial fact-finding with
respect to drug quantity. The district court carefully explained
the interaction of the sentencing guidelines and statutory
mandatory minimum sentences, particularly with respect to drug
quantity in conspiracy cases, and noted that the issue of drug
quantity "still has to be worked out on an evidentiary basis . . .
[because] it certainly does impact the sentence because of the
mandatory minimum." Harakaly -- who is, incidentally, a lawyer --
subsequently confirmed that he understood what had been discussed
and reaffirmed his intent to offer a guilty plea. Moreover, after
raising this same claim to the district court, Harakaly was given
the opportunity to move to withdraw his plea as made based upon a
mistaken premise, and he did not do so.12 Against this backdrop,
12
This decision also arguably constitutes waiver. "[T]he
contours of the claim were known to [Harakaly] and identified to
the court by him prior to sentencing," United States v. Eisom, 585
F.3d 552, 556 (1st Cir. 2009), and he consciously and intentionally
relinquished the claim by not moving to withdraw his plea at the
court's suggestion, and by instead expressing the intent to seek
relief from the § 841(b)(1)(A) sentence via the safety valve.
"Typically, a waived claim is dead and buried; it cannot thereafter
be resurrected on appeal." Id. Harakaly has presented no reason
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Harakaly's claim -- that his constitutional rights were violated
when he was induced to plead guilty based upon a misrepresentation
as to his potential sentence, and then, only after the government
had secured his guilty plea, did it spring the mandatory minimum on
him -- necessarily fails.
Indeed, this result is mandated by our decision in United
States v. Eirby (Eirby I), 262 F.3d 31 (1st Cir. 2001). There, the
indictment charged the defendant under § 841(b)(1)(B), but the
district court subsequently found him responsible for a drug
quantity sufficient to subject him to § 841(b)(1)(A)'s ten-year
mandatory minimum. Id. at 34–35. The defendant argued that the
court's use of § 841(b)(1)(A) usurped the prerogatives of the grand
jury and deprived him of notice. Id. at 37. We first explained
that the district court's switch to § 841(b)(1)(A) "did not
constitute reversible error unless it deprived the appellant of
notice or otherwise misled him to his detriment." Id. at 38. We
found neither to be the case, as the defendant was given an
opportunity to withdraw his guilty plea after the district court
found a higher drug quantity sufficient to trigger § 841(b)(1)(A).
Id. The same result obtains here.
III. Conclusion
For the foregoing reasons, we affirm Harakaly's sentence.
why his claim, if waived, should nevertheless be resurrected here.
However, in light of our disposition of the claim, we need not
reach the waiver issue.
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