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holding that a jury must find a “serious drug felony” because Apprendi requires that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt”
Summary of this case from United States v. BealOpinion
No. 6:19-CR-29-REW-HAI
2020-01-24
UNITED STATES of America, Plaintiff, v. Timmy L. FIELDS, Defendant.
Jenna E. Reed, AUSA, U.S. Attorney's Office, London, KY, for Plaintiff. David S. Hoskins, Hoskins, Hill & Hill, PLLC, Corbin, KY, for Defendant.
Jenna E. Reed, AUSA, U.S. Attorney's Office, London, KY, for Plaintiff.
David S. Hoskins, Hoskins, Hill & Hill, PLLC, Corbin, KY, for Defendant.
ORDER
Robert E. Wier, United States District Judge
After the jury unanimously convicted Timmy Fields of the crime charged in the indictment, Fields became one of the first defendants in the country to navigate the sentence-enhancement procedure referred to here as "Phase II." This Order explains Phase II mechanics, as here implemented, and describes the statutory and constitutional bases for the Court's approach.
The need for Phase II derives in part from the interplay between the First Step Act (FSA), Pub. L. No. 115-391, 132 Stat. 5194, and 21 U.S.C. §§ 841(b)(1)(A)–(B). Section 841(b) long provided for enhanced mandatory minimums (or increased maximums) for those defendants who had a prior conviction for a "felony drug offense." For enhancement under this now (partially) outdated scheme, the government had to prove that the defendant had been convicted of an offense "that prohibits or restricts conduct relating to" certain drug categories and that was punishable by imprisonment for more than one year. See 21 U.S.C. § 802(44). For purposes of §§ 841(b)(1)(A)–(B), the FSA, passed in late 2018, replaced "felony drug offense" with "serious drug felony," a newly defined term with distinct limitations. The definition of a "serious drug felony" tracks the definition of a "serious drug offense" in 18 U.S.C. § 924(e)(2)(A) and obligates the government to prove two additional facts about a prior conviction: that the defendant actually served more than one year in prison for the prior offense and that the defendant's "release from any term of imprisonment was within 15 years of the commencement of the instant offense." See 21 U.S.C. § 802(57).
The Court notes that the "felony drug offense" term persists in 21 U.S.C. § 841(b)(1)(C), a provision not relevant here.
Per the statute,
[T]he term "serious drug offense" means—
(i) an offense under the Controlled Substances Act (21 U.S.C. 801 et seq. ), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq. ), or chapter 705 of title 46 for which a maximum term of imprisonment of ten years or more is prescribed by law; or
(ii) an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law.
When "felony drug offense" was the operative definition, the government—in effect—had to prove only the fact of a prior felony conviction for a qualifying offense. The FSA's shift to "serious drug felony" predicates altered the type of proof required to trigger enhanced mandatory sentences under §§ 841(b)(1)(A)–(B), and the government has adjusted its practices accordingly; current DOJ policy mandates that the prosecution (1) allege in both the indictment and the § 851 Notice the above-described facts about the prior conviction and (2) prove these facts beyond a reasonable doubt at trial (or require the defendant to admit them in any plea agreement). Per the United States, Supreme Court authority compels this change. See DE 56 (trial brief citing DOJ policy and post-FSA cases discussing constitutional implications of "serious drug felony" definition).
Due process principles and Sixth Amendment jury protections place the contested elements of an offense within a jury's sole purview. See Alleyne v. United States , 570 U.S. 99, 133 S. Ct. 2151, 2158, 186 L.Ed.2d 314 (2013) (holding that "[f]acts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt"). However, recidivism is a recognized (albeit perhaps beleaguered) exception to Alleyne 's general rule on jury submission and proof. See Almendarez-Torres v. United States , 523 U.S. 224, 118 S. Ct. 1219, 1228–33, 140 L.Ed.2d 350 (1998) (rejecting argument that recidivism must be treated as an element of the offense); Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 2363, 147 L.Ed.2d 435 (2000) ("Other 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.") (emphasis added); United States v. Mack , 729 F.3d 594, 609 (6th Cir. 2013) ("Although Almendarez-Torres may stand on shifting sands, the case presently remains good law and we must follow it until the Supreme Court expressly overrules it.").
Just two years after Almendarez-Torres, Apprendi observed that a sentencing enhancement based on the "fact" of a prior conviction—like other judge-found facts—may implicate due-process and Sixth Amendment principles. See Apprendi , 120 S. Ct. at 2361–62. Notably, these concerns may have been slighter in Almendarez-Torres because the defendant there had not challenged the accuracy of the fact of his prior convictions. Apprendi seemed to contemplate a different outcome under different circumstances. See id. ("[I]t is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested[.]"). To date, no Supreme Court authority has addressed whether the Almendarez-Torres recidivism exception applies in a post-FSA world, where defendants may contest, factually and legally, whether a prior conviction qualifies as a "serious drug felony."
Because the explicit factual predicates of a "serious drug felony" (more than one year of imprisonment and release within fifteen years) effectively fix the mandatory minimum/maximum sentence for certain § 841 offenses, they are "elements" to which constitutional protections apply. See Alleyne , 133 S. Ct. at 2158. Those empirical issues, which rise or fall based on events occurring only after the conviction, by definition are beyond the "fact" of conviction (the narrow Almendarez-Torres harbor). When a defendant with a prior "serious drug felony" conviction proceeds to trial, the defendant is entitled to have a jury—rather than a judge—make findings, beyond a reasonable doubt, about these post-conviction facts. But this post-FSA, constitutionally required procedure prompts a predicate or parallel inquiry into the underlying legal and factual aspects of a "serious drug felony." For one, the prior conviction must have been for a certain type of offense: that is, a "serious drug offense." See 18 U.S.C. § 924(e)(2)(A). For another, the defendant potentially subject to enhanced penalties for the instant offense must have been the same person actually convicted in the earlier proceeding. Otherwise, the jury's findings as to the length of prior imprisonment and fifteen-year release window can have no effect.
Here, the indictment charged Fields with a violation of § 841(a)(1) and included allegations sufficient to trigger § 841(b)(1)(A)'s enhanced mandatory minimum. See DE 1 (alleging that Fields possessed with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine and that Fields had two prior convictions for serious drug felonies); DE 36 (§ 851 Notice). Before trial, upon the government's unopposed motion, the Court bifurcated the guilt and penalty phases. See DE 45. The two-phase approach foreclosed jury consideration of Fields's (potentially prejudicial) prior convictions unless and until those convictions became relevant to the authorized penalty for a § 841 trafficking offense; if the jury had convicted Fields on the lesser-included possession (§ 844) charge or acquitted him altogether, there would have been no Phase II.
Because the jury returned a guilty verdict on the § 841(a)(1) offense, the Court had to determine which questions to submit to the jury in Phase II. At the threshold, the legal definition of a "serious drug felony" is a question for the Court. Cf. United States v. Mayes , 928 F.3d 502, 504 (6th Cir. 2019) ("To determine whether a particular offense qualifies as a serious drug offense, the court applies a ‘categorical approach,’ which looks ‘only to the statutory definitions—i.e. , the elements—of a defendant's prior offenses, and not to the particular facts underlying those convictions.’ "). On the other hand, for the reasons discussed above, Alleyne requires that the jury make findings about the length of Fields's prior imprisonment and the fifteen-year release window. See Alleyne , 133 S. Ct. at 2158. These post-conviction facts extend beyond the limited Almendarez-Torres recidivism exception because they are not merely "fact[s] of a prior conviction"; they instead relate to the manner and duration of Fields's sentence service and the dates of release. See Apprendi , 120 S. Ct. at 2363. These post-conviction factual criteria, which raise the sentencing floor and/or ceiling, are for the jury alone to evaluate.
The Court and parties viewed the assessment of the legal characteristics of a "serious drug felony" as properly subject to legal, not factual, analysis.
Whether the identity issue—namely, whether Fields was in fact the person convicted—was a proper jury question depends on the continuing vitality of Almendarez-Torres and its applicability in this context. Without a stipulation by Fields that he was the person convicted in the cases referenced in the indictment and § 851 Notice, the identity question may have been submitted to the jury as well. This method is the most protective of constitutional rights and follows the arc of Supreme Court decisions guarding the jury's role. See, e.g., United States v. Haymond , ––– U.S. ––––, 139 S. Ct. 2369, 204 L.Ed.2d 897 (2019) (holding that mandatory minimum revocation term required by 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments). Moreover, in a bifurcated proceeding, submitting the identity question to the jury, where contested, risks no unfairness to the defendant; the two-phase trial wards off the unfair prejudice that might otherwise flow from jury consideration of prior convictions. Cf. Almendarez-Torres , 118 S. Ct. at 1226 ("[T]he introduction of evidence of a defendant's prior crimes risks significant prejudice.").
Fields chose to stipulate on identity, so the Court made no final ruling on that topic. The Court attaches (as an appendix) the final Phase II instructions and redacted Verdict Form to this Order, to provide the concrete results of the analysis at trial.
Fields objected generally to Phase II. His argument was that a) § 851 is the exclusive mechanism for resolving the status of an enhancing predicate; b) the Constitution precludes judge determination of the enhancing facts under the FSA; and c) the enhancements thus are nugatory. The Court disagreed, reasoning that the Sixth Amendment and due process—not § 851—define the parameters of the required jury submission. The statute may, as a result, be displaced in this context. The Constitution is supreme and dictates the procedural result on the jury's role. That does not invalidate but instead properly orders the recidivism scheme. Further, Congress meant the FSA to mitigate drug sentences by shrinking the number of qualifying predicates. To treat the ameliorative changes as destroying the effect of recidivism altogether is, for this Court, a bridge too far.
Attachment
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
UNITED STATES OF AMERICA, Plaintiff,
v.
TIMMY L. FIELDS, Defendant.
No. 6:19-CR-29-REW-HAI
JURY INSTRUCTIONS
PHASE II
Instruction #1
As to this part of the trial, and your consideration of the questions submitted, all of the instructions I've previously given continue to apply and govern your actions. They simply apply to the consideration you'll give to discrete questions I'll now describe. You've already found Timmy L. Fields guilty of the crime alleged in the indictment, and that finding remains in place.
Instruction #2
The indictment alleges that Timmy L. Fields, before committing the offense of possession of methamphetamine with intent to distribute, was previously convicted of two drug felonies. The alleged prior drug felony convictions are:
1) Commonwealth v. Timothy L. Fields, Laurel Circuit Court, 06-CR-65, Unlawful possession of a methamphetamine precursor and persistent felony offender.
2) Commonwealth v. Timothy Fields, Laurel Circuit Court, 12-CR-200, Trafficking in a controlled substance, first degree.
The parties stipulate that Timmy L. Fields was the person convicted in each case. You must decide two questions with respect to each prior conviction. The United States has the burden of convincing you, beyond a reasonable doubt, that the answer to each question is "Yes." If the Government fails in its burden on a question, you must answer that question "No."
The questions, as to each conviction, are:
First, did Defendant Timmy L. Fields serve a term of imprisonment of more than twelve months? A term of imprisonment is the period of actual confinement served relating to the conviction.
Second, was Defendant Timmy L. Fields released from the term of imprisonment within fifteen years of the date of the crime charged in the indictment, which occurred on or about April 21, 2019?
As already instructed, the United States has the burden of convincing you on each question, and to answer "Yes," you must find that the United States has proved the issue beyond a reasonable doubt.
Instruction #3
You may now retire to deliberate, consistent with my prior Instructions, which you still have in hand. You'll receive a new verdict form, which states the questions to be answered. If you decide that the Government has proved beyond a reasonable doubt that the answer to a given question is "Yes," say so by having your foreperson mark the appropriate place on the form as to that question. If you decide that the Government has not proved beyond a reasonable doubt that the answer to a question is "Yes," say so by having your foreperson mark "No" on the form as to that question. Answer each listed question. Your foreperson should then sign and date the form in the spaces indicated. Once you have completed, signed, and dated the verdict form, alert the CSO that you have a verdict. UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION LONDON
UNITED STATES OF AMERICA, Plaintiff, v. No. 6:19-CR-29-REW-HAI TIMMY L. FIELDS, VERDICT FORM PHASE II Defendant.
We the jury unanimously find the following:
Question 1. As to the conviction Commonwealth v. Timothy L. Fields, Laurel Circuit Court, 06-CR-65, did Defendant Timmy L. Fields serve a term of imprisonment of more than twelve months?
Yes ? No ___
Question 2. As to the conviction Commonwealth v. Timothy L. Fields, Laurel Circuit Court, 06-CR-65, was Defendant Timmy L. Fields released from the term of imprisonment within fifteen years of the date of the crime charged in the indictment, which occurred on or about April 21, 2019?
Yes ? No ___
Question 3. As to the conviction Commonwealth v. Timothy Fields, Laurel Circuit Court, 12-CR-200, did Defendant Timmy L. Fields serve a term of imprisonment of more than twelve months?
Yes ? No ___
Question 4. As to the conviction Commonwealth v. Timothy Fields, Laurel Circuit Court, 12-CR-200, was Defendant Timmy L. Fields released from the term of imprisonment within fifteen years of the date of the crime charged in the indictment, which occurred on or about April 21, 2019?
Yes ? No ___
Once you have completed this Verdict Form as directed, sign the verdict form and alert the CSO that you have reached a verdict.
1/14/2020 FOREPERSON (Signature and Juror Number)