Federal drugs laws are stiff. That’s the way Congress wanted it. One of the stiffest drug penalties is found in 21 U.S.C. § 841(b) which requires a 20-year minimum sentence if the drug distribution results in death.
Last year the U.S. Supreme Court, in Alleyne v. United States, held that the Government must prove before conviction that a death is actually caused by the drug distribution to trigger the 20-year mandatory minimum under § 841(b)(1)(B), (C). The high court on January 27 reinforced the Alleyne rule in Burrage v. United States by reversing a drug conviction because the prosecution failed to prove the victim’s death was exclusively caused by the drugs sold to him by the defendant.
The failure to prove a “death results” from the distribution of the drugs beyond a reasonable doubt means the defendant will face a different mandatory minimum sentence—10 years or 5 years—or no mandatory minimum, depending upon the drug type and quantity, as prescribed in 21 U.S.C. § 841(b)(1)(A)(B)(C).
The First Circuit Court of Appeals on February 5, 2014, refused to alter the usual practice followed by the courts in a “death results” case, in which the issue was incorrectly supported by a lesser standard of proof other than beyond a reasonable doubt, and merely remanded for sentencing without the mandatory minimum.
The Government, in United States v. Herrerra Pena, had asked the appeals court to depart from this rule in this case, where the defendant pleaded guilty to drug distribution but not to “death resulting” element, and requested, on remand, a full evidentiary hearing before a jury to allow it the opportunity to prove the matter beyond a reasonable doubt and thus force the mandatory minimum sentence of at least 20 years.
The First Circuit outlined the background facts in the Herrerra Pena case:
“Defendant Maximo Laryi Herrerra Pena was a co-leader, along with Joel Liceaga, of a heroin trafficking ring that operated in Boston and the South Shore of Massachusetts. In 2009-2010, Pena was directly linked to drug transactions involving a total of more than 1.6 kilograms of heroin.
“On July 30, 2009, Pena’s organization sold heroin to Joshua Johnson and David Georrfrion, leaders of a heroin distribution business on Cape Cod. Later that day, Johnson and Geoffrion sold a bag of heroin to Chelesa Joslin, a 20-year-old, for $50. The government argues that the bag of heroin Geoffrion sold to Joslin came from the heroin bought from Pena’s organization. The next day, Joslin was found dead in her Cape Cod home, with a needle, a syringe, and a plastic baggie with heroin residue nearby. Joslin had also been drinking and was taking a prescription drug, and autopsy results showed the presence of all three substances in her blood.”
A Federal grand jury indicted Pena on December 23, 2010, along with Liceaga, Geoffrion, and Victor Manon (a drug runner in Pena’s organization). The indictment charged two counts under § 841(a)(1): 1) conspiracy to distribute and to possess with intent to distribute 100 grams or more of heroin; and 2) possession of heroin with intent to distribute, distribution of heroin, and aiding and abetting the same. In addition, the indictment further alleged under both counts that “death and serious bodily injury resulted from the use of such substance” based on Joslin’s death. An appropriate finding of “death results” would increased the mandatory minimum sentence on each count to 20 years under § 841(b) (1) (B), (C).
Pena pled not guilty to both counts, triggering extensive pretrial wrangling. In November 2011, Pena filed a motion arguing that “death resulting” was not an element to the offenses for which he was indicted, and as a result, the district court “could not consider the mandatory minimum at a sentencing hearing unless the “death resulting” element was first found by a jury beyond a reasonable doubt.
The Government opposed the motion, taking the position that “death resulting” was a sentencing factor, not an element of the offense. The Government urged the court to allow it to prove the “death resulting” at a sentencing hearing before the judge, not a jury, by a preponderance of the evidence, not the beyond the reasonable doubt standard.
Pena informed the court that he was prepared to enter a straight guilty plea to both counts charged in the indictment. The court scheduled a change of plea hearing, which commenced on January 27, 2012, and concluded on February.
At the hearing Pena admitted to the relevant facts on each count, except that on count 2, in which he admitted supplying heroin to Johnson, he said the heroin was Liceaga’s, not his. Pena did, however, admit to aiding and abetting Liceaga in getting the heroin to Johnson. Pena then argued that the court could not impose a 20-year mandatory minimum without a jury finding on “death resulting.” The Government did not object to the acceptance of Pena’s plea.
The court accepted Pena’s plea, at which time Pena argued the Government had waived the “death resulting” issue because it had not been charged in the indictment. The Government elected not to “reserve any right to use a sentencing jury” on the mandatory minimum should its argument that “death resulting” was a sentencing factor fail. Pena countered that if the court accepted the sentencing factor argument, then he was entitled to an evidentiary hearing with an opportunity to cross examine witnesses.
In May 2012, Pena filed a formal motion requesting an evidentiary hearing on the “death resulting” issue. Two months later, on July 18, the trial court issued a “memorandum opinion” rejecting Pena’s “pre-plea motion” that the “death resulting” element could only be found by a jury. The opinion accepted the Government’s argument that “death resulting” was a sentencing factor and then granted Pena’s motion for an evidentiary hearing.
At the evidentiary hearing, conducted on July 19, Pena raised two defenses: 1) that the medical examiner could not say “with certainty” that the prescription drug and alcohol found in Joslin’s system was not the actual cause of death; and 2) that Johnson had an “alternate supply of heroin,” that he was a heroin user himself, and had used heroin on the day he supplied heroin to Joslin. In essence, Pena argued Joslin’s heroin could have come from a different source because Johnson “got a fresh supply daily.”
After hearing all the evidence, the trial court issued a “detailed written order” that the Government had proven “by a preponderance of the evidence that Joslin’s death did result from Pena’s heroin distribution.” It then imposed the mandatory minimum on both counts.
The issue ended up before the First Circuit which summed up the position of both parties:
“Pena argues that we must remand the case to the district court for it to do the resentencing, and that empaneling a sentencing jury would be improper for several reasons. First, Pena argues resentencing must be based on the elements of the crime to which he actually pled guilty. He emphasizes that he did not plead to “death resulting.” The prosecution, he notes, did not object to this more limited plea, and the court accepted the plea. He also says he relied on the government’s position in entering the plea. Pena says that the guilty plea has changed his pre-plea situation in many ways and that the sentencing jury procedure the government seeks would unfairly favor the government. At no time did he agree to bifurcating the guilt stage from the sentencing proceedings, and there was no order so bifurcating proceedings. In addition, in his reply brief, Pena argues the government’s procedure would violate his Fifth Amendment double jeopardy rights.
“The government argues that fairness requires it be given a chance to try again to prove ‘death resulting,’ this time to the correct decision maker, the jury — but only a ‘sentencing’ jury. It argues it should not be ‘penalized’ for making the wrong guess on where the Supreme Court would come out on this issue. It points out that ‘[w]hile the [empaneling] of a sentencing jury is a somewhat unusual procedure, it is far from unprecedented.’ It notes that the question of guilt is often bifurcated from the question of criminal forfeiture … Likewise, it notes that capital cases are routinely bifurcated into a guilt phase and a sentencing phase …”
The court rejected the Government argument, finding there is “no clear support” for a sentencing hearing. The court added that Pena stood convicted for only the “two admitted drug offenses;” that there had been no admission of guilt on the “death resulting” issue. The court then concluded:
“ … Pena’s initial position was that he was not guilty, thereby invoking his right to require the government to prove the drug offenses beyond a reasonable doubt. He altered that to a plea of guilty on the two drug charges only, in reliance on the government’s position. Pena thus gave up the chance that the government would not be able to prove guilt; he accepted guilt, and accepted he would be sentenced for that guilt. Indeed, he has already been incarcerated for nearly two years toward his sentence since entering the guilty plea; had he gone to trial and been acquitted, he would not have served that time. We see no inequity in holding the government to the position it took. Absent an agreed upon reservation, we generally do not relieve either side because its prediction about how sentencing will play out turns out to be wrong.
“In addition, the government’s request raises a thicket of potential and thorny double jeopardy issues, into which it is wiser not to enter. The government’s request also is likely to lead to situations of withdrawal of guilty pleas. As such, the government’s request undercuts the finality of criminal proceedings.”
The First Circuit remanded Pena’s case for resentencing absent the 20-year mandatory minimums.