United States v. Pena, 12–2289.

• Decision Date: 05 February 2014
• Docket Number: No. 12–2289.,12–2289.
• Citation: 742 F.3d 508
• Parties: UNITED STATES of America, Appellee, v. Maximo Laryi Herrerra PENA, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

742 F.3d 508

UNITED STATES of America, Appellee,

v.Maximo Laryi Herrerra PENA, Defendant, Appellant.

No. 12–2289.

United States Court of Appeals, First Circuit.

Feb. 5, 2014.

Robert L. Sheketoff, for appellant.

Jennifer Hay Zacks, Assistant U.S. Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, STAHL and KAYATTA, Circuit Judges.

LYNCH, Chief Judge.

In federal prosecutions, under the requirements of Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2158, 186 L.Ed.2d 314 (2013), if the distribution of drugs is proven beyond a reasonable doubt to a jury to have resulted in a death, a defendant will face a 20–year mandatory minimum sentence. See21 U.S.C. § 841(b). But if the government does not meet that burden before conviction, a defendant will face a different mandatory minimum—either 10 years, 5 years, or no minimum, depending on the drug type and quantity. See21 U.S.C. § 841(b)(1)(A), (B), (C). When, as here, there is Alleyne error resulting in the imposition of a mandatory minimum sentence based on judicial findings on a lesser standard of proof, the circuit courts usually have merely remanded for resentencing by the district courts.

The prosecution here asks us to depart from that usual practice. We are asked, after an Alleyne error and following a conviction based on a straight guilty plea to drug dealing but not to “death resulting,” to permit the prosecution on remand to empanel a sentencing jury to allow the government to now prove beyond a reasonable doubt that a death resulted from the defendant's drug dealing. Because Alleyne was decided after sentencing and while the case was on appeal, the situation in this case will not frequently occur. We hold that the government's proposed course of action is foreclosed on the facts of this case, is unfair, and would raise troubling constitutional questions that can be avoided by denying the government's request.

I.

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 Geoffrion, leaders of a heroin distribution business on Cape Cod. Later that day, Johnson and Geoffrion sold a bag of heroin to Chelsea 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.

Pena was indicted on December 23, 2010, along with Liceaga, Geoffrion, and Victor Manon, a drug runner from Pena and Liceaga's organization. The indictment alleged two counts: (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. Both counts alleged violations of 21 U.S.C. § 841(a)(1), which prohibits drug distribution.

The indictment further alleged for 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 resulting” increases the sentence on each count to a mandatory minimum of twenty years and a maximum of life. See21 U.S.C. § 841(b)(1)(B), (C).¹

Pena initially pled not guilty to both charges. On November 30, 2011, Pena filed a motion arguing that “death resulting” was an element of the offenses and that 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, arguing that “death resulting” was a not a necessary element of the indictment but a sentencing factor, which could properly be determined at sentencing by the court on a preponderance of the evidence standard. The government's choice was surely deliberate: it wanted to show “death resulting” under a far easier standard of proof and to prove it to a judge, not a jury.²

The day after the government filed its opposition, Pena filed a response. Pena's response stated:

The defendant continues to maintain that punishment based on a “death resulting” finding must be premised on a jury conviction of this element on proof beyond a reasonable doubt. However, the defendant is willing to accept the government's position that the Superseding Indictment does not include “death resulting” as an element. Given that view of the Superseding Indictment, the defendant is prepared to plead guilty to both counts forthwith and requests that the Court schedule a change of plea hearing.

(emphasis added). The response was explicit that the plea was being entered in reliance on the prosecution's position that “death resulting” was not an element of the offense. There was no plea agreement with the prosecution. Nor was there ever any order or agreement to bifurcate the proceedings.

The district court scheduled a change of plea hearing, which began on January 27, 2012. After a continuance, the hearing was concluded on February 9, 2012. At the hearing, Pena admitted all of the facts relevant to each count other than the “death resulting” allegations. As to Count 2, Pena admitted only that he assisted in or arranged for the supply of heroin to Johnson on July 30, 2009. In Pena's view, it was Liceaga's heroin, not his, and he aided and abetted Liceaga in getting the heroin to Johnson. Pena also argued that the 20–year mandatory minimum could not apply without a jury finding on “death resulting.” The government made no objection to acceptance of the defendant's plea, even in light of the continued denial of the “death resulting” allegations.

The district court accepted the guilty plea. Pena argued that the government's representation that death resulting was not charged in the indictment meant that the government had waived the opportunity to seek the death-resulting enhancement. The prosecution again did not seek to reserve any right to use a sentencing jury to increase the minimum sentence if the government's assessment that “death resulting” was only a sentencing factor proved incorrect.

Pena also informed the court that if the court decided “death resulting” was a sentencing factor, he would probably seek to have an evidentiary hearing and to cross-examine witnesses. The defendant's incarceration continued.

On May 8, 2012, in light of the government's position, Pena filed a motion requesting an evidentiary hearing on the “death resulting” issue before his sentencing hearing. On July 18, 2012, the district court issued a memorandum opinion rejecting Pena's November 30, 2011 pre-plea motion arguing that the mandatory minimum could not apply unless the “death resulting” element was tried before a jury. See United States v. Pena, No. 10–10017–NMG, 2012 WL 2952771 (D.Mass. July 18, 2012). The court rejected Pena's argument, concluding that “death resulting” was a sentencing factor. It then turned to Pena's argument from his May 8 motion and granted his request for an evidentiary hearing.

The court held the evidentiary hearing on the “death resulting” issue on July 19, 2012. After examining the witnesses, Pena's counsel raised two primary lines of argument at the hearing. The first was whether the autopsy by Dr. Henry Nields established that heroin actually caused Joslin's death, given that there were questions surrounding the reliability (for chemistry purposes) of the source of the victim's blood sample and given Dr. Nields's testimony that he could not say with certainty that the prescription drug and alcohol found in her system could not have caused the death even without the heroin. The second, developed through counsel's cross-examinations, was the credibility of Johnson, who had an alternate supply of heroin and was himself a heroin user (and had used heroin the day he supplied it to Joslin). Pena challenged the credibility of Johnson's testimony that, among other things, he had not mixed his heroin from different sources and that he carried over no inventory of heroin but got a fresh supply daily.

In a carefully detailed written order, the court concluded that the government had proven by a preponderance of the evidence that Joslin's death did result from Pena's heroin distribution. See United States v. Geoffrion, 910 F.Supp.2d 337, 343 (D.Mass.2012). The court found the testimony of Dr. Nields to be credible and that it was “more likely than not” that “Joslin died from acute intoxication by the combined effects of ethanol, opiates and citalopram, i.e., that the heroin used played a significant causal role in her death.” Id. at 342.³ The court also found that the evidence established by a preponderance that the heroin Joslin used was originally supplied by Pena or by other members of his conspiracy. Id.

The Supreme Court granted certiorari in Alleyne on October 5, 2012. The petition had been filed on March 14, 2012. The parties were aware of the grant of certiorari and the government discussed it at the sentencing hearing the next week.

On October 11, 2012, the district court held a sentencing hearing.⁴ Based on calculations in the presentencing report, Pena faced a base offense level of 38 under the Sentencing Guidelines if “death resulting” applied to his conviction, and a base offense level of 32 if “death resulting” was not established. After applying relevant increases and decreases, these alternative offense levels produced Guidelines ranges of 292–365 months or 151–188 months, respectively....