By Craig M. Coscarelli


On June 17, 2013, the U.S. Supreme Court hand down a
remarkable 5-4 decision in Alleyne v. United States,( No. 11-9335) (S. Ct. June
17, 2013) wherein the Court held that [a]ny fact that increases the mandatory
minimum is an “element” that must be submitted to the jury and found
beyond a reasonable doubt. The money quote from the majority opinion was ”
because there is no basis in principle or logic to distinguish facts that raise
the maximum from those that increase the minimum, Harris was inconsistent with
Apprendi. It is, accordingly, Overruled.” Alleyne, slip opinion, at page

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While the students of the law here at U.S.P. Lewisburg  have not had time yet to fully study the
Alleyne case, based on a much-to-quick first read, and first cut reaction, we have
put together the below list of frequently asked questions addressing how we
believe the Alleyne decision will impact your case.

1) Is Alleyne Retroactive?

Answer: Whether or not a new rule of law announced by the
Supreme Court is to apply retroactively in criminal cases on habeas review for
the first time depends largely on whether this rule is substantive or

Although the issue in Alleyne involved a Federal Firearm
prosecution, the decision will affect not only these types of cases but any
other in which legislators have provided enhanced minimum penalties base on
certain facts, such as drug quantity. As explained in our article dated 6/8/13
entitled “explaining Alleyne,” we expected and predicted that the
decision in the words of Justice Thomas–” turns on the simple question of
what constitutes a crime.” In Alleyne, in the opinion of Justice Thomas,
the Court made clear that “any fact that, by law increases the penalty for
a crime is an ‘element’ that must be submitted to the jury and found beyond a
reasonable doubt.” Alleyne, supra. Alleyne involves a decision
interpreting (not just 18 U.S.C. 924(c)) and its many subsections) but many
others (like 21 U.S.C. 841(b) and its many sub-sections);18 U.S.C.
1512(a)(1)(A); 18 U.C.S. IIII, and many other substantive criminal statute(s),
See, Alleyne (Justice Breyer, concurring) (The government cannot force a Judge
to impose a higher sentence unless a jury finds the requisite statutory factual
predicate)(slip op. at 13).

When a conviction is final, a new rule announced by the
Supreme Court only applies if it is a substantive rule. Schriro v. Summerlin,
542 U.S. 345, 35 (2004). A substantive rule is one that “decriminalize[s]
a class of conduct [or] prohibit[s] the imposition of [certain] punishment on a
particular class of persons.” Saffle v. Parker, 494 U.S. 484 (1990). These
substantive rules are applied retroactively because they “necessarily
carry a significant risk that a defendant stands convicted of an act that the
law does not make criminal [or] faces a punishment that the law cannot impose
upon him.” See, Schriro, 542 U.S. at 352.

In sum, Alleyne articulated ‘ a substantive rule of
statutory interpretation” because Alleyne’s verdict form clearly indicated
that the jury did not find brandishing beyond a reasonable doubt. Thus, he has
received a punishment that the law cannot impose upon him. Alleyne falls within
the class of substantive decisions that “prohibit[s] a certain category of
punishment for a class of defendants because of that status of offense.”
O’Dell v. Netherland, 521 U.S. 151, 157 (1997).

2). Will Alleyne apply to Enhancements like 851 and Career

Answer: Again, Alleyne holds “Because mandatory minimum
sentences increase the penalty for a [c]rime, [a]ny fact that increases the
mandatory minimum is an “element “that must be submitted to the jury.
Accordingly, Harris is overruled.”) (slip op. at 10, 16) Alleyne does not
hold any fact [other than a prior conviction] that increases the mandatory
minimum is an element. With that said, See now, United States v. Estrada, 428
F.3d 387, 389-90 (2nd Cir. 2005) (holding that mandatory life sentence under
851 after a conviction of 841(b)(1)(A) is permitted under the rationale of
Harris), cert. denied, 546 U.S. 1223,(2006); United States v. Puzey, 73 F.
App’x 549 583-54 (4th Cir. 2003)(same).

Thus, the logical outflow of Alleyne is that recidivist
enhancement, such as those that come from an 851 notice should be charged in
the indictment and proved to a jury beyond a reasonable doubt. Because Alleyne
does not address the so-called “Apprendi” exception clause (i.e., any
fact other than a prior convictions). And because the Supreme Court finally
overturned the wrongly decided decision in Harris, we encourage all to
challenge recidivist should be charged in the indictment and proved to a jury
beyond a reasonable doubt. Because Alleyne does not address the so-called
“Apprendi” exception clause (i.e., any fact other than a prior

3) Does Alleyne apply also to Guideline Enhancements?

Answer: Since Harris (2002), the courts have been using
guideline factors to enhance a defendants base offense level pursuant to Harris.
It is clear that under “Law of the case doctrine” courts should
refuse to consider an argument by the government to the contrary. Because the
law of the case doctrine forecloses re-litigation of issues expressly or
impliedly decided by the appellate court. This is also evident from the facts
of the Alleyne case, while Alleyne received a mandatory minimum sentence it was
also consider to be a guideline enhancement under Harris as a result of the
court’s incorrect interpretation of an element-v- sentencing enhancement. In
fact, all circuits have repeatedly made clear that guideline enhancements,
below the statutory maximum of the offense of conviction (like the one in
pre-Alleyne) may be determined by a sentencing judge and need not be submitted
to a jury. See, United States v. Duncan, 413 F. 3d 680, 683 (7th Cir. 2005)
(rejecting the idea that the fifth and sixth amendments require sentencing
enhancements to be alleged in the indictment, and submitted to the jury, and
proved beyond a reasonable doubt, citing Harris).

For those under advisory guidelines system we encourage the
presentation of arguments that perhaps Alleyne could be combined with Peugh v.
United States, No. 12-62 (S. Ct. 6/10/13) to generate procedural protections even
for inmates sentenced in a post-Booker world.

4) What kinds of cases would this Alleyne apply to?

Answer: Without a doubt, all mandatory minimum statute(s)
where a mandatory minimum sentence is at issue.

Alleyne means that the government cannot force a judge who
does not wish to impose a mandatory maximum sentence upon a defendant, to do
so, unless a jury finds the requisite statutory factual predicate. (See,
e.g.,21 U.S.C. 851,18 U.S.C. 924(e), career offender status, 21 U.S.C.
841(b)(1)(A) or (b)(1)(B), 18 U.S.C. 924 (c)(1)??, 18 U.S.C. 1111, 21 U.S.C.
960(b), etc…)

5) What impact would Alleyne have on plea agreements?

Answer: This is a difficult question, and has no easy
answer. A case-by-case judgment is required to assess its application. See now,
Bousley v. United States, 523 U.S. 614 (1998) (”If the record disclosed that
at the time of the plea, neither the accused, nor his counsel. nor the district
court correctly understood the essential elements of the crime with which he
was charged, then the plea was invalid under the federal constitution.”)

In light of Alleyne, it is clear now that when you were
advised by the judge, by your own lawyer, and the prosecutor that your
requisite statutory factual predicate were not elements of the crime with which
you were charged. You received critically incorrect legal advice. The fact that
all of your advisers acted in good-faith reliance on existing precedent does
not mitigate the impact of the erroneous advice. Its consequences for you were
just as severe, and just as unfair, as if the court and counsel had knowingly
conspired to deceive you in order to induce you to plead guilty to a crime that
you did not commit. The same legal argument should be submitted in a bench

6)  What about
pre-Apprendi cases?

Answer: Alleyne could be significant for pre-Apprendi
defendants sentenced to mandatory minimum sentences. Because, in the pre-Apprendi
world prosecutors did not submit drug quantity and other mandatory-minimum
triggering facts to juries in special verdict forms to support a mandatory
minimum sentences. Thus, these defendants are actually innocent of necessary
elements to support a mandatory minimum sentence. See e.g.,Spence, 2129 F.3d
162 (2000)(“When a prisoners sentence is enhanced without a valid factual
basis, yet he remains incarcerated pursuant to that sentence, it follows
inexorably that he is a victim of a miscarriage of justice”). More to come
on pre-Apprendi cases. Stay tuned.

7). Which procedure avenue should I use?

Answer: This is a difficult question, and has no easy
answer. Again, a case-by-case review is required to assess the proper avenue.
But please note, that various Courts of Appeals have interpreted 28 U.S.C.
Section 2255(f)(3) in such a way that permits a district court to determine
retroactively of a decision like Alleyne. See, also 2255(e) the proper avenue.
But please note, that various Courts of Appeals have interpreted 28 U.S.C.
Section 2255(f)(3) in such a way that permits a district court to determine
retroactively of a decision like Alleyne. See, also 2255(e) for all defendants
that have already filed a section 2255(f)(1) motion.

8) What is Alleyne’s relationship with Article III?

Answer: The scope of the indictment goes to existence of the
trial court’s jurisdiction. Stirone v. United States, 361 U.S. 212, 213 (1990);
Ex Parte Bain, 121 U.S. 1 (1886). A prosecutor cannot make an end-run around
the jurisdictional prerequisite of an indictment by charging any federal
offense, and then proceeding to prosecute a defendant for a different, albeit
related federal offense. Likewise, a prosecutor cannot make this jurisdictional
end-run, and then urge the Court to sentence the defendant for an offense for
which the defendant was neither charged nor convicted. A fundamental premise of
our constitution is that it is not what one “really” does that can be
punished, but only that conduct which is proven trial. The mandate of the U.S.
Constitution is simple and direct: “If the law identifies a fact that
warrants deprivation of a defendant’s liberty or an increase in the
deprivation, such fact must be proven to a jury beyond a reasonable
doubt.” See U.S. Const. Art. III 2, Cl.3.. If Congress makes an increase
in a defendant’s authorized punishment contingent on the finding of a fact,
(like those in the guidelines) that fact must be found by a jury beyond a
reasonable doubt.

CONCLUSION: If you don’t fight for relief, you may never
receive it. You should leave it to the Courts to work out. As always your
comments or questions are welcome.


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About Christopher Zoukis, MBA

Christopher Zoukis, MBA, is the Managing Director of the Zoukis Consulting Group, a federal prison consultancy that assists attorneys, federal criminal defendants, and federal prisoners with prison preparation, in-prison matters, and reentry. His books include Directory of Federal Prisons (Middle Street Publishing, 2020), Federal Prison Handbook (Middle Street Publishing, 2017), Prison Education Guide (PLN Publishing, 2016), and College for Convicts: The Case for Higher Education in American Prisons (McFarland & Company, 2014).

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