United States v. Pena
| Decision Date | 18 July 2012 |
| Docket Number | Criminal No. 10-10017-NMG |
| Parties | UNITED STATES OF AMERICA, v. MAXIMO LARYI HERRERRA PENA, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Defendant Maximo Laryi Herrerra Pena, a.k.a., Emerson Adams ("Pena") is scheduled to be sentenced by this Court for the crimes of conspiracy and aiding and abetting in the distribution of heroin. Currently before the Court are his motions 1) to require the government to prove, beyond a reasonable doubt, its averment that death resulted from his crimes and 2) for an evidentiary hearing on the issue of death resulting.
On December 23, 2010, a second superseding indictment was returned charging defendant Maximo Laryi Herrerra Pena, a.k.a., Emerson Adams ("Pena") and various co-defendants with conspiracy to possess with the intent to distribute and to distribute heroin, in violation of 21 U.S.C. § 846 and 841(a)(1), (b)(1)(B) (Count I), and aiding and abetting in the distribution of heroin, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) and 18 U.S.C.§ 2 (Count II).
The conspiracy count further alleges that 100 or more grams of heroin were involved, and both counts allege that death and serious bodily injury resulted from the use of that heroin. The death-resulting allegation pertains to the defendant's alleged role in distributing heroin to Chelsea Joslin on July 30, 2009. The following day, Ms. Joslin was found dead at the home she shared with her parents in Brewster, Massachusetts. A medical examiner determined that heroin played a significant causal role in her death.
On February 9, 2012, the defendant pled guilty to both counts without waiving his defense to the death-resulting allegation or admitting during the Rule 11 colloquy that any of the heroin distributed by him, or by other members of the conspiracy in which he participated, resulted in the death of Ms. Joslin. The government took the position that the resultant death is not an element of either offense (and therefore it need not be admitted to sustain the convictions) but rather is a sentencing factor that may be proved to a judge by a preponderance of the evidence at sentencing.
The defendant has moved to require the government to prove the death resulting averment to a jury beyond a reasonable doubt or, in the alternative, for an evidentiary hearing on the matter.
Subsection (b), entitled "penalties", provides that "any person who violates subsection (a) of this section shall be sentenced as follows..." and proceeds to list sentencing ranges based upon facts such as drug quantity or type, prior conviction and whether death or serious bodily injury resulted from the use of the counterfeit substance.
The pertinent "penalty" provisions in this case are § 841(b)(1)(B) and (C). Under § 841(b)(1)(B), a person who distributes 100 or more grams of heroin "shall be sentenced to a term of imprisonment which may not be less than 5 years and not more than 40 years." Under § 841(b)(1)(C), a person who distributes less than 100 grams of heroin "shall be sentenced to a term of imprisonment of not more than 20 years." Both provisions provide that if death or serious bodily injury results from the use of the distributed substance, "such person ... shall be sentenced to a term of imprisonment of not less than 20 years or more than life."
Applying those provisions here, Pena faces a sentence of between 20 and 40 years on Count One and 20 years on Count Two if the Court concludes that "death resulting" is a sentencing factor and finds it has been proved by a preponderance of the evidence.1 By contrast, Pena faces a sentence of between 5 and 40 years on Count One and between 0 and 20 years on Count Two if the Court concludes that "death resulting" is an element of the crime or, alternatively, that the government did not meet its preponderance of the evidence burden. Only if the "death resulting" averment were submitted to a jury and proved beyond a reasonable doubt would the Court be authorized to impose a sentence in excess of the 40-year and 20-year statutory maximums. See Apprendi v. New Jersey, 530 U.S. 466, 489 (2000) ( discussed below).
Defendant's motions present three quandaries: 1) the impact of Apprendi on the range of sentences this Court may impose, 2) whether "death resulting" is a sentencing factor or an element of a separate crime and 3) if the Court considers it a sentencing factor, whether the Court should hold an evidentiary hearing.
Apprendi v. New Jersey, 530 U.S. 466, 489 (2000), announced the familiar constitutional limit on Congress's power to define crimes: "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum," whether designated by statute as an element or a sentencing factor, "must be submitted to a jury, and proved beyond a reasonable doubt." As a result, judge-found sentencing factors cannot increase the maximum sentence a defendant is authorized to receive based on facts found by a jury or admitted to during a Rule 11 colloquy. Id. As a corollary, any fact that increases the penalty for a crime within the statutory maximum may be found by a judge by a preponderance of the evidence, even if that fact subjects a defendant to a mandatory minimum sentence. Harris v. United States, 536 U.S. 545, 567-68 (2002).
According to the defendant, Apprendi mandates that "death resulting" be proved to a jury beyond a reasonable doubt because it raises the maximum authorized penalty on both counts to life imprisonment. The statutory maximum sentence for the conspiracy crime alleged in Count One is 40 years, 21 U.S.C. § 841(b)(1)(B), and the statutory maximum sentence for the distribution crime set forth in Count Two is 20 years, 21 U.S.C. § 841(b)(1)(C). Defendant is correct that a finding that the defendant caused the death of Ms. Joplin would trigger a 20-year mandatory minimum andincrease the statutory maximums for both counts to life imprisonment. That alone, however, does not implicate Apprendi
It is settled law in this Circuit that "Apprendi error arises only if the defendant receives a sentence beyond the default statutory maximum for the offense of conviction." United States v. Jiminez, 498 F.3d 82, 87 (1st Cir. 2007) (emphasis added). As long as this Court sentences Pena within the statutory maximums authorized by the facts admitted in his plea colloquy (40 years and 20 years for Counts One and Two, respectively), Apprendi is not implicated.
Of far greater significance and complexity is the second issue: whether the death resulting averment is an element of a separate crime or a sentencing factor. Pena contends that the "death resulting" averment in the Indictment is a separate crime and, as such, must be proved to a jury beyond a reasonable doubt consistent with the Fifth and Sixth Amendments to the United States Constitution. The government responds that death resulting is a sentencing factor which may be proved to a judge by a preponderance of the evidence at sentencing. If the Court concludes that it is an element of a separate crime, the 20-year mandatory minimum may not be imposed unless a jury trial is convened to adjudicate that discrete issue and the government proves the resultant death beyond a reasonable doubt.
Because this issue conjoins complicated matters of statutory interpretation and constitutional law, its background will be rehearsed in some detail. While the Supreme Court has declined, since Apprendi, to adopt any further constitutional limitations on Congress's power to define crimes, it has on a number of occasions parsed criminal statutes to determine whether Congress intended for certain statutory provisions carrying severe penalties to be considered sentencing factors (to be found by a judge by a preponderance of the evidence) or elements of separate crimes (to be found by a jury beyond a reasonable doubt).
Instead of analyzing the prudence or constitutionality of allocating certain kinds of conduct to the sentencing phase rather than the trial phase, the Supreme Court has limited its inquiry to determining whether or not Congress intended to do so. See, e.g., Castillo v. United States, 530 U.S. 120, 126 (2000). To discern the intent of Congress, the Court reviews the statute's language and structure, the length and severity of the punishment it imposes and whether the provision in question is a "traditional sentencing factor." See id.
In Almendarez-Torres v. United States, 523 U.S. 224, 226 (1998), the Court reviewed 8 U.S.C. § 1326(a), which forbids previously deported aliens from returning to the United States without special permission and authorizes a maximum punishment oftwo-years imprisonment for violations. Subsection (b)(2) authorizes a considerably longer maximum prison term (20 years) for any violator whose initial deportation "was subsequent to a conviction for commission of an aggravated felony." Id. at 232. In Almendarez-Torres, the Court framed the issue as whether subsection (b)(2) "defines a separate crime or simply authorizes an enhanced penalty." Id. at 226.
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