United States v. McIvery

United States Court of Appeals
For the First Circuit

No. 12-1257

UNITED STATES OF AMERICA,

Appellee,

v.

JAYSON ANTHONY McIVERY,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Chief Judge,
Selya and Lipez, Circuit Judges.

William W. Fick, Assistant Federal Public Defender, with whom
Federal Public Defender Office was on brief, for appellant.
Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.

November 20, 2015
 SELYA, Circuit Judge. This is a case caught in a time

warp. The government indicted the defendant under a legal regime

that was modified by the subsequent passage of the Fair Sentencing

Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, and the

adoption of its implementing sentencing guidelines. The district

court accepted the defendant's guilty plea and — relying on its

authority under Harris v. United States, 536 U.S. 545 (2002), to

find the drug quantities needed to calibrate the sentencing scales

— proceeded to sentence the defendant.

While this case was pending on appeal, the matter grew

more complicated: the Supreme Court overruled Harris. See Alleyne

v. United States, 133 S. Ct. 2151 (2013). Buoyed by this sea

change in sentencing law, the defendant argues, among other things,

that the district court erred in imposing a mandatory minimum

sentence and that its error is both structural and non-harmless.

Although the legal landscape is pitted, we can see a

clear decisional path. We follow that path and, after careful

consideration, we reject the defendant's asseverational array.

Accordingly, we affirm.

I. BACKGROUND

We start by delineating the anatomy and travel of the

case. In October of 2009, a federal grand jury sitting in the

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District of Massachusetts indicted defendant-appellant Jayson

Anthony McIvery on one count of conspiracy to possess cocaine base

(crack cocaine) with intent to distribute (count one) and two

specific-offense counts of possession of crack cocaine with intent

to distribute (counts two and three). See 21 U.S.C. §§ 841(a)(1),

846. These charges stemmed from two sales of crack cocaine to a

cooperating individual. The first sale, charged in count two,

took place on May 11, 2009, and involved 13.7 grams of crack

cocaine; the second sale, charged in count three, took place on

August 8, 2009, and involved 42.5 grams of crack cocaine.

The indictment did not specify the precise drug amounts

involved, instead stating that each of the three counts "involved

five grams or more of a mixture and substance" containing cocaine

base. Under then-prevailing law, five grams was all that was

needed to trigger a five-year mandatory minimum sentence pursuant

to 21 U.S.C. § 841(b)(1)(B)(iii).

In August of 2011, the government filed an information

in accordance with 21 U.S.C. § 851(a)(1) indicating that it planned

to seek a sentencing enhancement premised on the defendant's two

prior drug-trafficking convictions. This proposed enhancement,

coupled with the drug quantities charged, exposed the defendant to

a mandatory minimum sentence of ten years. See id. § 841(b)(1)(B).

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 The defendant originally maintained his innocence but,

on September 29, 2011, pled guilty to all three counts. In the

period between the indictment and the plea, Congress enacted the

FSA, which elevated the quantity of crack cocaine required to

impose a five-year mandatory minimum sentence to twenty-eight

grams. See United States v. Douglas, 644 F.3d 39, 40-41 (1st Cir.

2011). Revised sentencing guidelines implementing the FSA went

into effect on November 1, 2010. See id. at 41.

At the change-of-plea hearing, the government made

pellucid that counts one and three carried a ten-year mandatory

minimum sentence (a statement that reflected the statutory

mandatory minimum, doubled because of the section 851(a)(1)

information).1 During the plea colloquy, the district court did

not discuss with the defendant the exact amount of drugs sold on

each occasion, though the government did specify the quantities

involved in each of the two transactions.

Prior to sentencing, the defendant challenged the

applicability of the statutory mandatory minimum, arguing that

1 For aught that appears, count two did not trigger any
mandatory minimum sentence as the quantity of crack cocaine
involved in that sale was less than twenty-eight grams. In this
court, however, the parties treat the three counts as a unit, and
we follow their lead.

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attributing twenty-eight grams or more of crack cocaine to him

would entail the use of a fact not charged in the indictment. In

other words, the defendant contended that because the indictment

had not charged him with intent to distribute twenty-eight grams

or more, no foundation existed for a mandatory minimum sentence.

Nevertheless, his objection straightforwardly acknowledged that

this argument was foreclosed by Harris, which had held that a fact

not charged in an indictment still could trigger a mandatory

minimum sentence. See 536 U.S. at 568. The defendant preserved

his claim that Harris had been wrongly decided.

The district court convened the disposition hearing on

February 10, 2012. The court did not explicitly address drug

quantity before invoking the statutory mandatory minimum and

sentencing the defendant to concurrent ten-year terms of

immurement. It is clear from the context, however, that the court

held the defendant accountable for more than twenty-eight grams of

crack cocaine.

The defendant appealed. During the course of briefing,

the Supreme Court granted certiorari in Alleyne, and we stayed the

appeal in this case.

When deciding Alleyne, the Supreme Court revisited its

decision in Harris and concluded that the decision was inconsistent

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with the principles enunciated in Apprendi v. New Jersey, 530 U.S.

466, 490 (2000), which had held that any fact increasing a

statutory maximum sentence (other than a prior conviction) must be

charged in the indictment and found by a jury. See Alleyne, 133

S. Ct. at 2155. The Court proceeded to overrule Harris, declaring

that "[a]ny fact that, by law, increases the penalty for a crime

is an 'element' that must be submitted to the jury and found beyond

a reasonable doubt." Id.

At that point, we lifted the stay in this case and

ordered supplemental briefing in light of Alleyne. In that round

of briefing, the defendant advanced several claims of error. We

consider those claims below.

II. ANALYSIS

There is no question that an Alleyne error occurred here.

The drug quantity necessary to ground the mandatory minimum under

the FSA was not specified in the indictment. The only relevant

question, therefore, is how to address this conceded error.

The defendant principally asserts that the Alleyne error

requires vacation of his sentence because it is not subject to

harmless error review. That assertion trips over this court's

precedent. In United States v. Harakaly, 734 F.3d 88 (1st Cir.

2013), cert. denied, 134 S. Ct. 1530 (2014), the sentencing court

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made a factual finding, pre-Alleyne, that the defendant had

possessed a sufficient quantity of methamphetamine to necessitate

a ten-year mandatory minimum sentence. See id. at 92-93. The

court made this finding despite the fact that no drug quantity had

been alleged in the indictment. See id. at 90.

On appeal, we took note that Alleyne had extended the

principles of Apprendi to the context of mandatory minimums and

looked to the standards of review applied to Apprendi errors to

determine the appropriate form of scrutiny for Alleyne errors.

See id. at 94-95. We concluded that harmless error review was

appropriate with respect to preserved claims of Alleyne error.

See id. at 95; see also United States v. Pérez-Ruiz, 353 F.3d 1,

14, 17 (1st Cir. 2003) (applying harmless error review to a

preserved Apprendi challenge).

The defendant concedes — as he must — that harmless error

review is available if Harakaly controls. See United States v.

Rodríguez-Vélez, 597 F.3d 32, 46 (1st Cir. 2010) (explaining that,

with only narrow exceptions, in-circuit panels are bound by prior

panel decisions closely on point); United States v. Wogan, 938

F.2d 1446, 1449 (1st Cir. 1991) (same). But the defendant labors

to distinguish Harakaly and, relatedly, strives to convince us

that his case should instead be governed by our decision in United

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States v. Zavala-Martí, 715 F.3d 44 (1st Cir. 2013). We are not

persuaded.

To begin, the defendant's attempt to distinguish

Harakaly is impuissant. He presses the fact that in Harakaly —

unlike this case — the indictment did not state a specific drug

quantity. This is a distinction without a difference: the

Harakaly court's rationale for harmless error review did not turn

in any way on the presence or absence in the indictment of an

allegation of a specific quantity of drugs. As the court made

clear, a challenge to the indictment's failure to invoke the

necessary drug quantities "establishes only that there was Alleyne

error; it says nothing about whether that error was harmless."

734 F.3d at 95-96. The harmlessness of the error was instead

determined by reference to the overwhelming — indeed, unchallenged

— evidence that the defendant was responsible for a drug quantity

sufficient to require the imposition of a mandatory minimum

sentence.2 See id. at 96.

2 In point of fact, the defendant here is arguably in a better
position than the defendant in Harakaly. The indictment in this
case put him on notice of a specific drug quantity calibrated to
the mandatory minimum. In contrast, the indictment in Harakaly
left the defendant to infer the applicability of the mandatory
minimum from the facts of the charged conduct.

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 Nor does Zavala-Martí assist the defendant's cause.

There, the court sentenced the defendant to life in prison even

though none of the charges of conviction authorized such a

draconian sentence. See 715 F.3d at 52. Applying plain error

review, we vacated the sentence and remanded for resentencing.

See id. at 52-54. The case simply did not involve the application

of the drug-quantity revisions contained in the FSA. Although the

defendant was indicted for conspiring to distribute fifty grams or

more of crack cocaine, id. at 51, the district court "explicitly

disclaimed reliance on any amount of crack cocaine in imposing

sentence," id. at 52. And although we noted that the indictment

alleged "a drug quantity and thereby set specific, statutorily

prescribed limits on the sentence," id. at 53, we pointed out that

datum only to emphasize that the error resulted from the district

court's departure from the terms of the indictment (which was

designed to set a range of appropriate sentences). "[T]here was

no flaw in the indictment resulting from a subsequent change in

the law" but, rather, an error rooted in "disregarding . . . the

grand jury's judgment." Id.

We conclude that, rather than being controlled by

Zavala-Martí, the case at hand is more akin to the situation that

Zavala-Martí distinguished. The indictment here charged a drug

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quantity — "five grams or more" — that was sufficient to kindle a

statutory mandatory minimum under existing law. A subsequent

change in the law altered the needed quantity; and a further

alteration in the legal regime — the Alleyne decision — called

into question the district court's imposition of a mandatory

minimum predicated on the new twenty-eight gram threshold. That

was error, but the error flowed entirely from the subsequent change

in law, in the same fashion as the error reviewed in Harakaly.

Unlike Zavala-Martí, this case presents no concern about

undermining the role of the grand jury in setting the range of

applicable punishments: applying the mandatory minimum here

respects the grand jury's will as expressed in the indictment.

In an effort to snatch victory from the jaws of defeat,

the defendant suggests that Alleyne errors are structural and,

thus, not amenable to harmless error review. See, e.g., Neder v.

United States, 527 U.S. 1, 8 (1999). This suggestion is futile.

Harakaly unambiguously holds that Alleyne errors are not

structural, see 734 F.3d at 94-95; see also United States v.

Morris, 784 F.3d 870, 874 n.3 (1st Cir. 2015), petition for cert.

filed, 84 U.S.L.W. 3087 (U.S. Aug. 7, 2015) (No. 15-170), and we

are bound to respect that holding.

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 Consistent with Harakaly, the appropriate standard of

review is for harmless error. Where, as here, the relevant error

is of constitutional dimension and has been preserved below, the

harmless error standard requires the government to "prove that the

error was harmless beyond a reasonable doubt, or, put another way,

that it can fairly be said beyond any reasonable doubt that the

assigned error did not contribute to the result of which the

appellant complains." Pérez-Ruiz, 353 F.3d at 17.

In reviewing Alleyne errors under this standard,

"'overwhelming evidence of the requisite drug types and

quantities' generally serves as a proxy for determining whether

the Alleyne error contributed to the result." Morris, 784 F.3d

at 874 (quoting Harakaly, 734 F.3d at 95) (collecting cases).

"Overwhelming evidence" consists of "a corpus of evidence such

that no reasonable jury could find, based on the record, that the

crack quantity was less than that required for the mandatory

minimum to apply." Id.

In this case, the government clears this hurdle with

room to spare. The district court accurately described the

evidence of the defendant's guilt as "overwhelming," and the

evidence that the offense conduct involved twenty-eight grams or

more of crack cocaine is uncontested. Indeed, at the change-of-

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plea hearing, the defendant admitted that he had engaged in the

charged transactions — and the second sale alone involved 42.5

grams. So, too, the presentence investigation report determined,

without objection, that the offenses of conviction involved a total

of 56.2 grams of crack cocaine. On this record, a reasonable jury

could not have found that the defendant was responsible for less

than the requisite drug quantity. See Harakaly, 734 F.3d at 96.

To say more about the harmlessness of the error would be

to paint the lily. In the circumstances of this case, we are

confident that the Alleyne error was harmless beyond a reasonable

doubt.3

Next, the defendant submits that his sentence resulted

from a constructive amendment to the indictment. We do not agree.

Unlike the defendant's principal claims of Alleyne

error, his constructive amendment claim was not raised below and

was therefore forfeited. See Puckett v. United States, 556 U.S.

129, 134 (2009). Forfeited errors are normally reviewed only for

plain error, see id. at 135, and forfeited constructive amendment

3 We acknowledge that the retrospective application of Alleyne
to pending cases has not been uniform across the circuits. See,
e.g., United States v. Lewis, 802 F.3d 449, 454-56 (3d Cir. 2015)
(en banc). In the last analysis, however, we remain bound by our
own precedent — and our determination in this case is faithful to
that precedent.

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claims are no exception, see United States v. Brandao, 539 F.3d

44, 57 (1st Cir. 2008). Although the defendant asserts that the

constructive amendment claim flows from the decision in Alleyne

and therefore is not forfeited, he cannot avoid plain error review

on that basis. Even when the law changes between the time of a

lower court ruling and the time a subsequent appeal is heard,

objections not interposed before the lower court are deemed

forfeited and are reviewed for plain error. See Johnson v. United

States, 520 U.S. 461, 466-70 (1997); United States v. Barone, 114

F.3d 1284, 1294 (1st Cir. 1997).

Review for plain error is not appellant-friendly. Such

review "entails four showings: (1) that an error occurred (2) which

was clear or obvious and which not only (3) affected the

defendant's substantial rights, but also (4) seriously impaired

the fairness, integrity, or public reputation of judicial

proceedings." United States v. Duarte, 246 F.3d 56, 60 (1st Cir.

2001). The defendant's attempt to satisfy this daunting standard

falters at the first and second steps (which we consider

together).4

4We think it likely that the defendant's attempt fails at
every step of the analysis. But because an appellant bears the
burden of satisfying all four facets of the plain error inquiry,
see United States v. Vega Molina, 407 F.3d 511, 521 (1st Cir.

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 As we have stated, "[a] constructive amendment occurs

when the charging terms of an indictment are altered, either

literally or in effect, by prosecution or court after the grand

jury has last passed upon them." Brandao, 539 F.3d at 57 (quoting

United States v. Pierre, 484 F.3d 75, 81 (1st Cir. 2007)). This

construct is designed "to preserve the defendant's Fifth Amendment

right to indictment by grand jury, to prevent re-prosecution for

the same offense in violation of the Sixth Amendment, and to

protect the defendant's Sixth Amendment right to be informed of

the charges against him." Id.

Constructive amendments typically arise from a mismatch

between the indictment's description of the charged offense and

some other variable. That variable may be the evidence offered

in support of the charge, see, e.g., United States v. Muñoz-Franco,

487 F.3d 25, 64 (1st Cir. 2007); a jury instruction, see, e.g.,

United States v. Vizcarrondo-Casanova, 763 F.3d 89, 98-99 (1st

Cir.), cert. denied, 135 S. Ct. 307 (2014); Brandao, 539 F.3d at

56-57; or the sentence imposed, see, e.g., United States v.

Iacaboni, 363 F.3d 1, 7 (1st Cir. 2004).

2005), it would serve no useful purpose here to go beyond the first
two facets.

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 The defendant says that the critical gap in this instance

is the lack of fit between the indictment and the sentence. But

as our prior discussion demonstrates, there was no impermissible

change in the theory of the case remotely resembling the

constructive amendments that we identified in other cases. See,

e.g., Vizcarrondo-Casanova, 763 F.3d at 99; Brandao, 539 F.3d at

56-57; Iacaboni, 363 F.3d at 7. Here, an identical theory of the

case persisted from the indictment phase through the sentencing

phase. The asserted inconsistency between the indictment and

sentence resulted from intervening actions of Congress and the

Supreme Court: any lack of fit between the indictment and the

sentence is due to a change in the law, which modified the

threshold amount of drugs needed to trigger the statutory mandatory

minimums.

The short of it is that the grand jury handed up an

indictment that specified a drug quantity calculated to invoke the

mandatory minimum under existing law. Thus, the defendant was on

ample notice from the very beginning of both the government's

assertion that the statutory mandatory minimum applied and his

potential exposure to that mandatory minimum. Here, moreover, the

indictment invoked a drug quantity that was sufficient under then-

prevailing law to trigger a mandatory minimum sentence. This

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awareness is of critical importance because "[a] primary objective

of the rule against constructive amendment of indictments is to

ensure defendants have notice of the charges they must defend

against." United States v. Dubón-Otero, 292 F.3d 1, 5 (1st Cir.

2002). And in all events, the quantity of drugs for which the

defendant was sentenced was entirely consistent with the

indictment's description of the charged conduct as involving "five

grams or more" of crack cocaine (emphasis supplied).

The bottom line is that, in the circumstances of this

case, any constructive amendment claim is dubious at best.

Surely, then, there is no plain error.5

This brings us to the defendant's final claim of error:

his plaint that the government's failure to include his prior state

5
This case is distinguishable from United States v. Hackett,
762 F.3d 493, 501-02 (6th Cir. 2014), cert. denied, 135 S. Ct.
1518 (2015), in which a panel of the Sixth Circuit concluded that
an Alleyne error constituted a constructive amendment. There, the
defendant was charged with using or carrying a firearm "during and
in relation to" a "crime of violence." Id. at 501 (quoting 18
U.S.C. § 924(c)(1)(A)). Although the defendant was found guilty
of that offense, he was sentenced under a subsection of the statute
— 18 U.S.C. § 924(c)(1)(A)(iii) — which applies only "if the
firearm is discharged" during the commission of the offense. Id.
The defendant argued that the district court's decision to sentence
him under the "discharge" subsection was an improper deviation
from the terms of the indictment, and the court agreed. Id. at
502. Here, unlike in Hackett, there is no mismatch between the
charged conduct and the sentenced conduct.

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convictions in the indictment was reversible error. This plaint

runs headlong into the Supreme Court's decision in Almendarez-

Torres v. United States, 523 U.S. 224 (1998), which held that prior

convictions that aggravate a sentence are not elements of a crime

that must be charged in the indictment and proved to a jury. See

id. at 228-35, 239.

To be sure, the defendant construes Alleyne as eroding

the theoretical underpinnings of Almendarez-Torres. But the

Alleyne Court took pains to disclaim any intention of revisiting

Almendarez-Torres, see Alleyne, 133 S. Ct. at 2160 n.1, and

Almendarez-Torres remains binding Supreme Court precedent. Unless

and until the Supreme Court overrules that decision, we must

continue to adhere to it. See United States v. Jiménez-Banegas,

790 F.3d 253, 258 (1st Cir. 2015) (noting, post-Alleyne, that the

Supreme Court "has never . . . disavowed" Almendarez-Torres);

United States v. Rodriguez, 759 F.3d 113, 122 (1st Cir.) (same),

cert. denied, 135 S. Ct. 421 (2014); United States v. Carrigan,

724 F.3d 39, 51 n.4 (1st Cir.) (same), cert. denied, 134 S. Ct.

668 (2013); see also Rodriguez de Quijas v. Shearson/Am. Express,

Inc., 490 U.S. 477, 484 (1989) ("If a precedent of this Court has

direct application in a case, yet appears to rest on reasons

rejected in some other line of decisions, the Court of Appeals

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should follow the case which directly controls, leaving to this

Court the prerogative of overruling its own decisions.").

III. CONCLUSION

We need go no further. For the reasons elucidated

above, the judgment of the district court is

Affirmed.

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