Since the June 17, 2013 release of Alleyne v. United States, 133 S. Ct. 2151 (2013) by the Supreme Court of the United States, there has been much discussion about the differences between

Apprendi v. New Jersey, 530 U. S. 466 (2000) and Alleyne. Of course, the main discussion centers around retroactivity. I believe that the excellent work and research conducted by Tommy Walker and his law students below dispels any doubt that Alleyne is retroactive.


The Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right, in conjunction with Due Process, requires that each element of a crime be proved to the jury beyond a reasonable doubt. In Re Winship, 397 U.S. 358 (1970). The substance and scope of this right depend upon the proper designation of the facts that are elements of the crime.

In Alleyne, the Supreme Court dropped a big bombshell on state and federal sentencing regimes. By holding, that any facts that increase the prescribed range of penalties to which a criminal defendant is exposed are elements of the crime. This is an important decision that has been a long time coming.

Apprendi and Alleyne:

Apprendi concluded that:

“any facts that increase the prescribed range of penalties to which a criminal defendant is exposed ” are elements of the crime, Id., at 490, and thus the Sixth Amendment provides defendants with the right to have a jury find those facts beyond a reasonable doubt.” Id. at 484.

Alleyne concluded that:

[a]ny 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. . .” 133 S. Ct. at 2155 (citation omitted).

The juxtaposition of these two decisions shows that: (1) the Supreme Court knew how to announce a new procedural rule; and it chose to do just that in Apprendi (“The substantive basis for New Jersey’s enhancement is . . . not at issue; the adequacy of New Jersey’s procedure is”). Apprendi, 530 U.S., at 475; but (2) it chose not to do so in the Alleyne decision, by redefining what constitutes an element of a crime.

The Distinction Between Apprendi And Alleyne:

In Apprendi, the Court repeatedly refused to make a distinction between “sentencing factors” and “elements of the offense,” describing two ways in which Courts treat factual issues in criminal proceedings. In a footnote, for example, the Court noted that when a fact increases the defendant’s punishment beyond the statutory maximum, that fact is best characterized not as a “sentencing factor,” but as “the functional equivalent of a greater offense.” Apprendi, 530 U.S., at 494, n.19. The term “element” was used simply as shorthand for a set of procedural requirements. It meant only that it must be charged in the indictment, submitted to the jury and proven beyond a reasonable doubt. The Apprendi decision dictates only who must decide certain factual disputes (Judge v. Jury) and under what standard of proof (Preponderance v. Reasonable Doubt) that must be decided. It does not determine which facts are “elements of a crime.”

Whereas, Alleyne, to the contrary, announced a new substantive rule. First and most importantly, Alleyne overruled Harris v. United States, 536 U.S. 545, 552 (2002)(“we must first answer a threshold question of statutory interpretation”). See also, Ashwander v. TVA, 297 U.S. 288, 346-47 (1936)(articulating the principle that cases should be decided on statutory grounds before reaching constitutional question). With that said, the Alleyne Court transformed a “sentencing factor,” which could be found by the judge and proved by a preponderance of the evidence, into an “element” of the offense, which must be submitted to the jury and proven beyond a reasonable doubt. Thus, Alleyne in its interpretation of Section 924(c) adds a new “element” to 924(c)’s statute; and all other statutes in which legislators have provided enhanced minimum penalties based on certain facts. “Defining facts that increase a mandatory statutory minimum to be part of the substantive offense enables the defendant to predict the legally applicable penalty from the face of the indictment.” Alleyne, slip opinion at 13. Alleyne’s decision is clearly distinguishable from Apprendi’s.

Alleyne’s innovation was not in identifying the procedures that apply to an element of a crime but, rather, in redefining what constitutes an element of a crime. It concerns the scope of the criminal statutes, the relationship between the defendant’s conduct and the severity of the punishment, and substantive norms. “This reality demonstrates that the core crime and the fact triggering the mandatory minimum sentence together constitute a new, aggravated crime, each element of which must be submitted to the jury.” Alleyne, Slip opinion at 3.

As such, Alleyne compels that many defendants whose cases were adjudicated under the old Harris regime were “convicted of an act that the law does not make criminal or [received] a punishment that the law cannot impose upon [them].” Schriro v. Summerlin, 542 U.S. 348,352 (2004). Therefore, the only proper conclusion for this court to reach, then, is that Alleyne resulted in a “[n]ew substantive rule []” retroactively applicable to qualifying cases on collateral review. Id. at 351.

Due Process:

The substantive nature of the Alleyne Rule is perhaps most readily apparent in the contrast of due process. In Fiore v. White, 531 U.S. 225, 228-29 (2001), the Supreme Court recognized the “simple inevitable conclusion” that it violates due process to refuse a defendant the benefit of a clarifying interpretation of the law in effect at the time of his conviction, even if the judicial clarification did not occur until well after the defendant’s conviction was final, moreover, the court reconfirmed that, when a later judicial decision interpreting a statute’s elements (like the Alleyne decision), it does not amount to an outright change in the law, but stands instead as a correct statement of substantive law as of the time a defendant’s conviction became final, post-conviction relief is required without regard to retroactivity. See Barkley v. Florida, 123 S. Ct. 2020 (2007).

The Procedural Aspect of Apprendi/Alleyne:

Because the foundation of Alleyne’s new rule rests on both the Apprendi due process doctrine and the In re Winship Sixth Amendment right of a jury trial with respect to beyond a reasonable doubt proof standard, retroactively should present no problem. Because the procedural aspect of Apprendi/Alleyne obviously did not originate from Apprendi or Alleyne, it has been embedded in American Constitutional law for more than two hundred years. See Apprendi, 530 U.S. at 477-78 (Citing, Coffin v. United States, 156 U.S. 432 (1895). Thus, because the procedural aspects of Apprendi/Alleyne are not new, the new rule in Alleyne should apply retroactively on collateral review.

That is, based on the foregoing legal principles a court can and properly should find Alleyne retroactively applicable on collateral review as both a change in substantive law and as a new rule of criminal procedure law. The procedural aspect of this rule-the very element of a crime must be submitted to the jury and proven beyond a reasonable doubt under In re Winship, has already been given complete retroactive effect.

Assuming arguendo that the defendant must show that the Supreme Court has already made the procedural aspect of Alleyne retroactive. In Tyler v. Cain, 533 U.S. 566 (2001), the Court held, that multiple holdings of the Court, taken together, “necessarily dictate” retroactivity of the new rule: “If we hold in case one that a particular type of rule applies retroactively to cases on collateral review and hold in case two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review.” (Id., at 688). “The matter is one of logic. If case one holds that all men are mortal and case two holds that Socrates is a man, we do not need case three to hold that Socrates is mortal.” (Id., at 672-73).

Using the logic from Tyler, in case one, Ivan v. City of New York, 407 U.S. 203 (1972), in a per curium opinion expressing the unanimous view of the Court, it was held that the Winship rule should be given complete retroactive effect. The Court in In re Winship, 397 U.S. 358 (1970), expressly held that the due process clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In Alleyne, the Supreme Court held that “the Sixth Amendment provides that those “accused” of a “crime” have the right to a trial “by an impartial jury.” This right in conjunction with the due process clause requires that each element of the crime be proved to the jury beyond a reasonable doubt. Alleyne, slip opinion at 3 (citing In re Winship).

In short, Justice O’Connor’s concurrence in Tyler (necessary to achieve a majority in that case) admits of the possibility that, in limited circumstances, a new rule (like the one in Alleyne) could be “made retroactive” upon its announcement without the Court’s expressly stating as much. See In re Holladay, 331 F. 3d. 1169, 1172-73 (11th Cir. 2003) (holding new rule was made retroactive under Tyler stand).

Where the major purpose of new constitutional doctrine (like Alleyne) is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule is given retroactive effect. See, Hankerson v. North Carolina, 432 U.S. 233 (1977) (Citing, Ivan, Supra.)

Bedrock Procedural Element:

The rule in Alleyne changes our understanding of the bedrock procedural elements essential to fairness and accuracy of the criminal proceeding. Accordingly, Alleyne is on par with In re Winship because Alleyne implicates the right to the reasonable doubt standard that plays a vital role in the American scheme of criminal procedure law.

Alleyne was not dictated by precedent and clearly imposes a new obligation on the government to prove certain facts to a jury beyond a reasonable doubt when, prior to Alleyne, it need only to prove such facts to a judge by a preponderance of the evidence. Thus, Alleyne announced a new rule. That is substantive because it defines a defendant’s rights (here ” a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt”), not the necessary steps a court must take to preserve these rights.

The reasonable doubt standard is a “bedrock procedural element essential to the fairness of a criminal proceeding” In re Winship, supra. So if Alleyne, an extension of Apprendi clearly altered our understanding of this “bedrock procedural element” by requiring that it is applied to certain facts that previously were subject to a preponderance of the evidence standard only. As Justice O’Connor noted, the decision “will surely be remembered as a watershed change in constitutional law”. Apprendi, 120 S.Ct. at 2380.

Closing Statements:

We acknowledge the Seventh Circuit’s holdings in Simpson v. United States, 2013 WL 3455 876 * 1 (7th Cir. 7/10/13), and the common misconception of Simpson by some inmates, but noted that a careful reading shows that the court did not address the issue of retroactivity. Stating, “The decision is the Supreme Court’s not ours, to make”. See, slip opinion at 2. But see again, In re Holladay, supra. (“a new rule of constitutional law is made retroactive not only though an express pronouncement of retroactivity, but also through multiple holding that logically dictate the retroactivity of the new rule.” 331 F. 3d at 1172.

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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