Monday, December 8th, 2014

Miscalculation Of Mandatory Minimum That “Has An Impact” On Sentence Is Plain Error

United States v. Sanchez, No. 11-2429-CR (2d Cir. Dec. 4, 2013) (Cabranes, Straub, and Livingston), available here

Defendant pleaded guilty to possession with intent to distribute more than 1 kilogram of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), an offense that carries a 10-year mandatory minimum.  The government filed a prior felony information pursuant to 21 U.S.C. § 851, arguing that defendant’s prior Connecticut narcotics conviction increased his mandatory minimum to 20 years.  Defendant did not object.  Without making any reference to the mandatory minimum, the district court (D. Conn.; Nevas, J.) sentenced defendant to 288 months, a downward variance from the Guidelines range of 360-life.

On appeal, the Circuit accepted the government’s concession that it was clear error to treat defendant’s prior as a qualifying predicate because the Connecticut and federal narcotics laws are not coterminous.  However, the Circuit rejected the government’s argument that the error was harmless in light of defendant’s 288-month sentence, which was well above the miscalculated mandatory minimum.  In the Circuit’s view, the miscalculation had an impact on defendant’s sentence because “the assumption of a 20-year minimum sentence permeates the record.”  (slip op, at 8).  For example, defendant’s counsel argued that the proper range for the district court to consider was 20 to 30 years (the government had agreed not to seek a sentence greater than 30 years).  Likewise, the government urged the district court, if it imposed a below-Guidelines sentence, to impose a sentence above the mandatory minimum, and not to “reward” defendant with a sentence of 20 years.  Finally, the 288-month sentence was closer to 20 years than 30 years.  Consequently, the error affected defendant’s substantial rights as well as the fairness and integrity of judicial proceedings.

Notably, the Circuit rejected the government’s position (based on United States v. Deandrade, 600 F.3d 115 (2d Cir. 2010)), that a sentence in excess of a miscalculated mandatory minimum is not plain error.  Rather, the Circuit distinguished Deandrade on the ground that there, the sentencing court expressly disavowed reliance on the mandatory minimum.  Similarly, the Circuit declined to address defendant’s argument that miscalculation of the mandatory minimum is always prejudicial under Alleyne v. United States, 133 S. Ct. 2151 (2013).  Thus, the Circuit takes the middle position that miscalculation of the mandatory minimum is plain error where, as here, the error “has an impact” on the actual sentence — even if that sentence is greater than the miscalculated minimum and within the Guidelines range.

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