Sunday, November 1, 2015

Mandatory Minimums: Harder to trigger than you thought

We now know that facts increasing a mandatory-minimum sentence must be found by a jury or admitted by the defendant.1 But exactly what facts trigger the mandatory minimums in 21 U.S.C. § 841(b)? The statute itself defines the triggering event simply as "a violation [of the distribution/manufacturing statute] involving" X amount of drugs.

Echoing this language, the Tenth Circuit’s pattern jury instruction for controlled-substance conspiracies includes an optional fifth element that requires the jury to find that "the overall scope of the conspiracy involved at least [name amount] of [name controlled substance]."2 Is that conspiracy-wide finding sufficient to trigger a mandatory minimum? Or must the amount of drugs be more specifically attributed to the defendant?

In conspiracy cases addressing this question, there appear to be three approaches on the table:


Proof required to trigger mandatory minimum

Source

That X amount was involved in

the overall scope of the conspiracy.

10th Circuit Pattern Jury Instruction 2.87 (conspiracy instruction, fifth element).
That X amount was involved in
the overall scope of the conspiracy, and
that amount was reasonably foreseeable to the defendant.


Pinkerton v. United States, 328 U.S. 640 (1946).
That X amount was involved in
the scope of the criminal activity
that the defendant jointly undertook, and
that amount was reasonably foreseeable to the defendant.


U.S.S.G. § 1B1.3(a)(1)(B) (relevant conduct guideline).

Many if not most circuits have rejected the conspiracy-wide approach.3 This makes perfect sense, as Congress’s purpose in sentencing conspirators under § 841(b)4 was "to synchronize the penalties for conspiracies and their underlying offenses"—a purpose that holding a conspirator responsible for the entire conspiracy absent at least a Pinkerton foreseeability finding would defeat.5

Matters get a little confusing, though, when the appellate courts tackle the question of just how individualized the proof triggering 841(b)’s mandatory minimums must be. Some explicitly adopt Pinkerton’s simple foreseeability standard;6 others adopt a guideline-styled attribution standard using the language in U.S.S.G. § 1B1.3(a)(1)(B);7 still others appear to equate these standards.8

But none of this should be unclear anymore in the Tenth Circuit, which explicitly adopted a guideline-styled attribution standard in a pair of cases the Court has dubbed Biglow I and Biglow II.

Defendant Biglow was convicted by a jury of a conspiracy "involving" 500 grams or more of cocaine. In Biglow I, the Tenth Circuit vacated Defendant Biglow’s conspiracy sentence and remanded the case for resentencing because, as the government conceded, the district court failed to make "particularized findings regarding drug quantity" before sentencing Biglow to the mandatory minimum for a 500-gram cocaine conspiracy.9 Borrowing language from § 1B1.3, the Court explained that Biglow was only accountable at sentencing "for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook."10

On remand, the district court applied this standard and found that Biglow was individually accountable for only 192 grams of cocaine. But the district court believed it was nonetheless constrained by the jury’s 500-gram conspiracy verdict to re-impose the mandatory minimum sentence.

The Tenth Circuit vacated the sentence again in Biglow II, making it clear that (1) a verdict as to overall conspiracy amounts is not enough to trigger § 841(b), and (2) a guideline-styled attribution standard applies:
As we held in Biglow I, a drug-conspiracy conviction alone is insufficient to make an individual conspirator responsible for the entire quantity of drugs for which the conspiracy was responsible. Instead, these defendants may only be punished for the amount of controlled substances that can be "attributed" to them personally, as opposed to the conspiracy generally. . . . To determine this amount, the district court must hold the defendant "accountable" for his "relevant conduct," which "includes all acts and omissions committed, aided, abetted, counseled, commanded, induced, procured, or willfully caused by the defendant and all reasonably foreseeable acts and omissions of others in furtherance of [a] jointly undertaken criminal activity." . . . This "includes any controlled substance that was handled by another member of the conspiracy" if it was "in furtherance of the jointly undertaken criminal activity" and "reasonably foreseeable in connection with that criminal activity." . . . In short, a defendant is "accountable for all quantities of contraband with which he was directly involved and . . . all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook." . . . .

The attributed drug quantity will then be used both to determine a conspirator’s appropriate guidelines range and to determine whether a statutory mandatory penalty associated with the underlying object offense of the conspiracy applies to an individual conspirator . . . .11
A few observations about Biglow and § 841(b):

The guideline-styled attribution standard is more protective than the Pinkerton standard. The plain language of the relevant-conduct guideline—which limits the defendant’s responsibility not only to foreseeable acts of coconspirators, but also to those acts which fall within the scope of the criminal activity jointly undertaken by the defendant—attributes less culpability to the defendant than does Pinkerton. The distinction between the two is even more apparent with the clarifying amendments to § 3B1.1(a)(B) that are now effective.

Indeed, the guidelines themselves currently caution that "the scope of the criminal activity jointly undertaken by the defendant . . . is not necessarily the same as the scope of the entire conspiracy."12 And courts comparing the guideline standard to Pinkerton have observed that "[c]onspiracy liability, as defined in Pinkerton . . . is generally much broader than jointly undertaken criminal activity under § 1B1.3."13

Adopting a guideline-styled attribution standard is consistent with the legislative history of § 841(b). As other courts have noted, § 841(b) and the guidelines were both developed in the 1980s and have grown up hand-in-hand; they thus should be interpreted consistent with one another: the guidelines were created pursuant to the Sentencing Reform Act of 1984, 28 U.S.C.A. §§ 991-998 (West Supp. 1993) and that the individual guidelines, including the reasonable foreseeability test as set forth in the relevant conduct section, have been accepted by Congress. Thus, two distinct congressionally approved sentencing schemes, the mandatory minimum approach and the sentencing guidelines, are presently in place, two schemes that should be reconciled to the extent legitimate and practical.14
Adopting a guideline-styled attribution standard is consistent with the rule of lenity. Given the ambiguity of § 841(b)’s "involving" language (evident in the confusion over what proof is necessary to trigger the statute), invoking the rule of lenity to resolve the question of what standard applies is appropriate.15

Lingering questions:

Is guideline-styled attribution required to trigger the mandatory minimums for substantive Pinkerton convictions?

Is guideline-styled attribution required to trigger an increase in the statutory maximum?

What kind of jury instruction will satisfy a guideline-styled attribution requirement?

What kind of plea colloquy will satisfy a guideline-styled attribution requirement?

Notes

1. Alleyne v. United States, ___ U.S. ___, 133 S.Ct. 2151 (2013).

2. Tenth Circuit Pattern Jury Instruction 2.87.

3. See, e.g., United States v. Haines, ___ F.3d ___, 2015 WL 6080523 at *22 (5th Cir. Oct. 15, 2015) ("for purposes of statutory minimums at sentencing, the relevant quantity is the quantity attributable to the individual defendant").

4. See 21 U.S.C. § 846.

5. See United States v. Martinez, 987 F.2d 920, 925 (2d Cir. 1993).

6. See United States v. Rodriguez, 67 F.3d 1312, 1324 (7th Cir. 1995) ("while our analysis resembles the ‘relevant conduct’ inquiry under U.S.S.G. § 1B1.3, we actually proceed under Pinkerton").

7. See United States v. Swiney, 203 F.3d 397, 404 (6th Cir. 2000) ("We therefore hold that Pinkerton principles, as articulated in the relevant conduct guideline, U.S.S.G. § 1B1.3(a)(1)(B), determine whether a defendant convicted under 21 U.S.C. § 846 is subject to the penalty set forth in 21 U.S.C. § 841(b)(1)(c)") (emphasis added).

8. See United States v. Mendez, 472 Fed. Appx. 214, 215 (4th Cir. 2012) ("Pursuant to Pinkerton, a coconspirator is liable for the amount of drugs . . . other members of the conspiracy were involved in whose actions were both reasonably foreseeable and in furtherance of the jointly undertaken criminal activity").

9. United States v. Biglow, 554 Fed. Appx. 679, 684 (10th Cir. 2014).

10. Id.

11. United States v. Biglow, ___ Fed. Appx. ___, 2015 WL 3559216 at * 2 (10th Cir. June 9, 2015) (internal quotations and citations omitted).

12. U.S.S.G. § 1B1.3 App. Note 2.

13. United States v. Davison, 761 F.3d 683, 686 (7th Cir. 2014); see also United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir. 2008) ("Foreseeability is a limitation on liability for conduct of others in furtherance of a jointly undertaken activity but is irrelevant when there is no jointly undertaken activity."); United States v. Swiney, 203 F.3d 397, 404 (6th Cir. 2000) ("it is clear that the Sentencing Guidelines have modified the Pinkerton theory of liability so as to harmonize it with the Guidelines’ goal of sentencing a defendant according to the seriousness of the actual conduct of the defendant and his accomplices").

14. United States v. Irvin, 2 F.3d 72, 78 (4th Cir. 1993).

15. See United States v. Manatau, 647 F.3d 1048, 1055 (10th Cir. 2011) ("the rule of lenity teaches that if, after ‘seizing every thing from which aid can be derived’ an ambiguity still persists . . . courts should interpret federal criminal statutes . . . to avoid an increase in the penalty prescribed for the offense").

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