Supreme Court of the United States - Madison Criminal … · Supreme Court of the United States _____ JENNIFER LYNN KRIEGER Petitioner, v. UNITED STATES OF AMERICA ... ON PETITION

No. 10-____

__________________________________________________________________

IN THE

Supreme Court of the United States

_________________________________________________________________

JENNIFER LYNN KRIEGER

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent._________________________________________________________________

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT_________________________________________________________________

PETITION FOR A WRIT OF CERTIORARI_________________________________________________________________

MELISSA A. DAYAssistant Federal Public Defender

Counsel of Record401 W. Main StreetBenton, IL 62812

[email protected](618) 435-2552

JEFFREY L. FISHERStanford Law School Supreme Court Litigation Clinic

559 Nathan Abbott WayStanford, CA 94305

(650) 724-7081

QUESTION PRESENTED

Section 841 of Title 21 of the United States Code makes it a crime, punishable by

imprisonment of “not more than twenty years,” to manufacture, distribute, or dispense a

controlled substance. 21 U.S.C. § 841(a)(1), (b)(1)(C). That Section further provides that “if

death . . . results from the use of such substance,” the defendant “shall be sentenced to a term of

imprisonment of not less than twenty years or more than life.” Id. § 841(b)(1)(C).

The question presented is whether the “death results” provision of 21 U.S.C.

§ 841(b)(1)(C) is an element of an aggravated offense rather than a mere sentencing factor.

i

TABLE OF CONTENTS

QUESTIONS PRESENTED .......................................................................................................... i

TABLE OF AUTHORITIES ....................................................................................................... iv

PETITION FOR A WRIT OF CERTIORARI ............................................................................ vii

OPINIONS BELOW ................................................................................................................... vii

JURISDICTION ......................................................................................................................... vii

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS ................................. vii

STATEMENT OF THE CASE ...................................................................................................... 1

REASONS FOR GRANTING THE WRIT ................................................................................... 6

I. The Circuits Are Currently In Disarray Over Whether The “Death Results” Provision IsAn Element Or A Sentencing Factor ................................................................................. 7

A. The Circuits Are Divided Three Ways Over Whether The “Death Results”Provision Is An Element ........................................................................................ 7

B. The Circuits Are Increasingly Vexed Over Whether The Sixth AmendmentApplies To Factual Findings Dictating Mandatory Minimum Sentences ........... 12

II. This Case Presents Issues Of Substantial Importance ..................................................... 14

III. This Case Is An Ideal Vehicle For The Court To Resolve These Issues ......................... 16

IV. The Seventh Circuit’s Decision Is Incorrect .................................................................... 17

A. Section 841(b)(1)(C) Is An Element Of An Aggravated Offense As A Matter Of Statutory Construction ......................................................................................... 17

B. Treating The “Death Results” Provision As A Sentencing Factor Would Violate The Sixth Amendment ......................................................................................... 21

CONCLUSION ............................................................................................................................ 27

APPENDIX A, Opinion of the Seventh Circuit ........................................................................... 1a

APPENDIX B, Opinion of the District Court ............................................................................ 30a

ii

APPENDIX C, Original Indictment .......................................................................................... 44a

APPENDIX D, Superceding Indictment .................................................................................... 45a

APPENDIX E, 21 U.S.C. § 841 ................................................................................................. 46a

iii

TABLE OF AUTHORITIES

Cases Page(s)

Adarand Contractors, Inc. v. Pena, 515 U.S. 200 (1995) ........................................................... 26

Almendarez-Torres v. United States, 523 U.S. 224 (1998) ......................................................... 18

Apprendi v. New Jersey, 530 U.S. 466 (2000) ......................................... 4, 7, 8, 14, 19, 22, 23, 25

Blakely v. Washington, 542 U.S. 296 (2004) ................................................................... 17, 23, 26

Castillo v. United States, 530 U.S. 120 (2000) ............................................................ 5, 18, 20, 21

Clark v. United States, No. 08-673 (U.S. Feb. 20, 2009) ............................................................ 17

Cunningham v. California, 549 U.S. 270 (2007) ......................................................................... 22

Danforth v. Minnesota, 552 U.S. 264 (2008) .............................................................................. 25

Gall v. United States, 552 U.S. 38 (2007) ................................................................................... 24

Harris v. United States, 536 U.S. 545 (2002) .................................. 5, 6, 12, 13, 18, 19, 23, 24, 25

Helvering v. Hallock, 309 U.S. 106 (1940) ................................................................................. 26

Jones v. United States, 526 U.S. 227 (1999) ............................................................. 16, 18, 19, 20

Kennedy v. Louisiana, 554 U.S. 407 (2008) ................................................................................ 19

McMillan v. Pennsylvania, 477 U.S. 79 (1986) ..................................................... 5, 12, 19, 23, 26

Ring v. Arizona, 536 U.S. 584 (2002) .......................................................................................... 22

Rita v. United States, 551 U.S. 338 (2007) .................................................................................. 24

Rust v. Sullivan, 500 U.S. 173 (1991) .......................................................................................... 20

Sattazahn v. Pennsylvania, 537 U.S. 101 (2003) ........................................................................ 22

Seminole Tribe v. Florida, 517 U.S. 44 (1996) ........................................................................... 25

United States v. Barragan-Sanchez, 165 Fed.Appx. 758 (11th Cir. 2006) ................................. 14

United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) ...................................................... 20, 21

iv

TABLE OF AUTHORITIES

Cases Page(s)

United States v. Cathey, 259 F.3d 365 (5th Cir. 2001) .......................................................... 12, 16

United States v. Clark, 538 F.3d 803 (7th Cir. 2008) ............................................ 5, 10, 17, 22, 23

United States v. Confredo, 528 F.3d 143 (2d Cir. 2008) ............................................................... 9

United States v. Copeland, 321 F.3d 582 (6th Cir. 2003) ............................................................ 12

United States v. Dare, 425 F.3d 634 (9th Cir. 2005) ................................................................... 14

United States v. Dixon, 509 U.S. 688 (1993) .............................................................................. 26

United States v. General, 278 F.3d 389 (4th Cir. 2002) .............................................................. 11

United States v. Gonzales, 420 F.3d 111 (2d Cir. 2005) ............................................. 9, 13, 16, 24

United States v. Graham, 317 F.3d 262 (D.C. Cir. 2003) ............................................... 11, 12, 21

United States v. Grier, 475 F.3d 556 (3d Cir. 2006) ............................................................. 13, 14

United States v. Hollis, 490 F.3d 1149 (9th Cir. 2007) ................................................................. 9

United States v. Jimenez, 498 F.3d 82 (1st Cir. 2007) ................................................................... 8

United States v. Keith, 230 F.3d 784 (5th Cir. 2000) .................................................................. 11

United States v. King, 2006 WL 2367339 (W.D. Mich. 2006) .................................................... 15

United States v. Krieger, 628 F.3d 857 (7th Cir. 2010) ....................................................... viii, 1a

United States v. Krieger, 2009 WL 112428 (S.D. Ill. Jan. 16, 2009) ................................ viii, 30a

United States v. Leachman, 309 F.3d 377 (6th Cir 2002) ............................................................. 7

United States v. Lizardo, 445 F.3d 73 (1st Cir. 2006) ................................................................. 12

United States v. Mann, 195 Fed.Appx. 430 (6th Cir. 2006) .......................................................... 8

United States v. Martinez, 234 F.Supp.2d 80 (D. Mass. 2002) ..................................................... 8

United States v. McIntosh, 236 F.3d 968 (8th Cir. 2001) ............................................................ 12

v

TABLE OF AUTHORITIES

Cases Page(s)

United States v. O’Brien, 130 S.Ct. 2169 (2010) ............................................................ 13, 18, 21

United States v. Odegaard, 390 Fed.Appx. 674 (9th Cir. 2009) ........................................... 10, 15

United States v. Patterson, 38 F.3d 139 (4th Cir. 1994) .............................................................. 11

United States v. Promise, 255 F.3d 150 (4th Cir. 2001) .............................................................. 20

United States v. Rebmann, 226 F.3d 521 (6th Cir. 2000) .............................................................. 7

United States v. Rebmann, 321 F.3d 540 (6th Cir. 2003) .................................................. 8, 15, 27

United States v. Rodriguez, 279 F.3d 947 (11th Cir. 2002) ......................................................... 12

United States v. Sanchez, 269 F.3d 1250 (11th Cir. 2001) .......................................................... 11

United States v. Thomas, 355 F.3d 1191 (9th Cir. 2004) ........................................................ 9, 10

United States v. Thompson, 237 F.3d 1258 (10th Cir. 2001) ...................................................... 11

United States v. Vazquez, 271 F.3d 93 (3d Cir. 2001) ........................................................... 11, 20

United States v. Velasco-Heredia, 319 F.3d 1080 (9th Cir. 2003) ................................................ 9

United States v. Webb, 545 F.3d 673 (8th Cir. 2008) .................................................................. 11

Statutes

18 U.S.C. § 924(c)(1) (2011) ................................................................................................. 20, 21

18 U.S.C. § 924(c)(1)(B)(ii) (2011) ............................................................................................. 21

21 U.S.C. § 841 (2011) .............................................................................................. i, iii, viii, 46a

21 U.S.C. § 841(a) (2011) .............................................................................................................. 2

21 U.S.C. § 841(a)(1) (2011) ......................................................................................................... i

21 U.S.C. § 841(b) (2011) ............................................................................... 5, 7, 8, 9, 11, 17, 23

vi

TABLE OF AUTHORITIES

Statutes Page(s)

21 U.S.C. § 841(b)(1)(A) (2011) ................................................................................................. 12

21 U.S.C. § 841(b)(1)(C) (2011) ..................................................................... i, ii, 1, 2, 3, 6, 7, 24

28 U.S.C. § 1254 (2011) ............................................................................................................ viii

vii

PETITION FOR A WRIT OF CERTIORARI

Petitioner Jennifer Lynn Krieger respectfully petitions for a writ of certiorari to review

the judgment of the United States Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Seventh Circuit (Pet. App. 1a)

is published at 628 F.3d 857. The opinion of the United States District Court for the Southern

District of Illinois (Pet. App. 30a) is unpublished, but available on Westlaw at 2009 WL 112428.

JURISDICTION

The judgment of the court of appeals was entered on December 7, 2010. Pet. App. 1a.

On February 24, 2011, Justice Kagan extended the time within which to file a petition for a writ

of certiorari to and including May 6, 2011. No. 10A838. This Court has jurisdiction pursuant to

28 U.S.C. § 1254(1).

RELEVANT STATUTORY AND CONSTITUTIONAL PROVISIONS

The relevant provisions of 21 U.S.C. § 841 are reproduced at Pet. App. 46a-53a.

The Sixth Amendment to the United States Constitution provides in relevant part: “In all

criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an

impartial jury . . . and to be informed of the nature and cause of the accusation . . . .”

viii

STATEMENT OF THE CASE

This case presents important statutory and constitutional questions over whether the

“death results” provision of 21 U.S.C. § 841(b)(1)(C) is an element of an aggravated offense or a

mere sentencing factor. The Government has already acknowledged in this case that these

questions currently divide the federal courts of appeals. Gvt. C.A. Br. 19; Gvt’s Objections to

Presentence Report at 11.

1. Petitioner Jennifer Krieger, a single mother with no prior criminal record, suffers from

severe and chronic pain as a result of several medical conditions, including degenerative disc

disease, fibromyalgia, chronic back pain, spinal cord defects, and a brain deformity known as

Arnold-Chiari malformation.1 To control her pain, doctors prescribed Krieger the pain

medication fentanyl in the form of an adhesive patch. Pet. App. 31a. As a synthetic opiate,

fentanyl is a controlled substance under schedule II of the Controlled Substances Act.

One day in 2005, Krieger met up with Jennifer Curry, a friend with whom she

occasionally used drugs. Krieger gave Curry one of her fentanyl patches, and the two women

then spent the evening drinking together at several bars. Krieger remained with Curry until

around midnight. Afterwards, Curry was seen leaving Hurley’s Show Bar in the early morning

hours in the company of two unidentified persons. Pet. App. 32a.

“No one knows exactly what happened in the hours after Ms. Curry left Hurley’s Show

Bar.” Pet. App. 32a. The following afternoon, Curry was found dead on a couch at her parents’

1 Arnold-Chiari malformation is a condition that involves the brain sinking into the spinal cord. Krieger likens the condition to a tennis ball being sucked into a soda bottle. Deft’s Dist. Ct.Sentencing Mem. at 4.

1

home. Inside her purse were a hypodermic syringe, a small pipe with burnt residue inside, and a

chewed fentanyl patch; two red capsules were also found at the scene. Pet. App. 2a, 32a-33a. A

toxicology report indicated the presence of fentanyl in Curry’s blood, as well as traces of many

other drugs, including cocaine, benzodiazepines, cannabinoids, and Oxycodone. Pet. App. 2a,

34a.

2. Under 21 U.S.C. § 841(a), it is a federal crime to “manufacture, distribute, or dispense

. . . a controlled substance.” For schedule II controlled substances, including fentanyl, 21 U.S.C.

§ 841(b)(1)(C) establishes a statutory sentencing range of zero to twenty years for simple

distribution. With respect to first-time offenders, the federal sentencing guidelines recommend a

sentence of ten to sixteen months. Pet. App. 42a. This recommended range drops to six to

twelve months when the court finds that the defendant accepts responsibility for the offense.

Pet. App. 42a. The average sentence a first-time offender receives under such circumstances is

seven months. Pet. App. 18a.

Section 841(b)(1)(C), however, provides for escalating sentencing ranges when certain

additional facts are present. As is pertinent here, “if death or serious bodily injury results” from

the use of the drug distributed, the statute sets a mandatory minimum sentence of twenty years

and a maximum term of life in prison. In other words, while the statutory sentencing range for

simple distribution is zero to twenty years, the statutory sentencing range for distribution that

results in death is twenty years to life.

3. The Government filed an indictment charging Krieger under Sections 841(a) and

841(b)(1)(C) with distribution of divers amounts of fentanyl “with death resulting from such

distribution, in that Jennifer Ann Curry died on November 23, 2005, in Franklin County Illinois,

2

from ingesting some of the contents of the fentanyl that Jennifer Lynn Krieger had distributed to

her.” Pet. App. 44a. During pretrial proceedings, however, it became clear that “discrepancies

in the evidence and the conflicting testimonies of the witnesses” rendered the Government

“unable to prove the aggravating factor [of death resulting] beyond a reasonable doubt.” Pet.

App. 37a, 40a. In particular, “the government’s main witness, the medical examiner, Dr. John

Heidingsfelder, fled the country under a cloud of suspicion.” Pet. App. 3a. Heidingsfelder “was

a tax cheat [and] a scofflaw” whose medical license had been recently suspended. Pet. App. 25a,

35a. Furthermore, “[t]he police chief in charge of the investigation admitted to inadequate

police work” in failing to investigate other possible causes of Curry’s death. Pet. App. 27a.

Faced with these difficulties, the Government filed a superseding indictment omitting all

language concerning the allegation that death resulted and charging Krieger with simple

distribution only. Pet. App. 45a.

Krieger pleaded guilty to the superseding indictment and specifically denied that Curry’s

death resulted from the patch she gave her. Pet. App. 4a. Krieger’s presentence report

recommended a sentence of ten to sixteen months, Pet. App. 5a, which would be adjusted

downward for acceptance of responsibility.

The Government objected to the presentence report. Contrary to the implication of the

original indictment, the Government now claimed that Section 841(b)(1)(C)’s “death results”

provision was a mere sentencing factor rather than an element of an aggravated offense. Pet.

App. 5a. Therefore, the Government maintained, it did not have to allege that fact in an

indictment or prove it beyond a reasonable doubt. Rather, the Government asserted that it could

subject Krieger to the provision’s twenty-year mandatory minimum by merely showing at

3

sentencing, by a preponderance of the evidence, that death resulted from the fentanyl Krieger

had given Curry. Pet. App. 10a, 40a.

Krieger disputed these assertions on both statutory and constitutional grounds. As a

statutory matter, she contended that the “death results” provision is properly construed as an

element. As a constitutional matter, Krieger maintained that the Sixth Amendment (as

elucidated in Apprendi v. New Jersey, 530 U.S. 466 (2000), and subsequent cases) requires the

provision to be treated as an element because it raises the statutory maximum sentence from

twenty years to life in prison.

The district court held that the “death results” provision is a sentencing factor, Pet. App.

41a, and that the Sixth Amendment permitted it to be treated as such so long as the court

imposed a twenty-year sentence (the single sentence statutorily permissible based on both the

crime of conviction and the “death results” provision). That is, the district court held that even if

a statutory provision exposes the defendant to a higher sentence than is otherwise available, “the

Constitution is seemingly satisfied” so long as the sentence actually imposed is within the range

prescribed for the crime of conviction. Pet. App. 38a-39a.

Following an evidentiary hearing, the district court found that the Government had

proved by a preponderance of the evidence that Curry’s death resulted from the fentanyl patch

and thus sentenced Krieger to twenty years in prison. The court viewed this sentence as “unduly

harsh,” Pet. App. 42a, noting that under these circumstances, “the sentencing factor is the tail

that wags the dog” of the substantive offense. Pet. App. 42a. Yet based on its determination that

the “death results” provision is a sentencing factor, the court believed that it had “no discretion

whatsoever in the choice of sentence.” Pet. App. 7a.

4

4. The Seventh Circuit affirmed. Applying the factors outlined in Castillo v. United

States, 530 U.S. 120 (2000), and related cases, it held as a matter of statutory construction that

the “death results” provision is a sentencing factor. Pet. App. 19a. The court of appeals

recognized that fairness considerations and the severe punishment dictated by this provision

strongly favor construing the “death results” provision as an element. Pet. App. 17a-18a. It

nevertheless concluded that the provision is a sentencing factor for two primary reasons. First,

the provision appears in a statutory subsection titled “penalties.” Second, past Seventh Circuit

cases have held that other provisions in Section 841(b) dealing with drug quantity are sentencing

factors. Pet. App. 19a.

The Seventh Circuit also rejected Krieger’s argument that because the “death results”

provision increases the statutory maximum from twenty years to life in prison, the Sixth

Amendment requires that the provision be treated as an element. Reaffirming circuit precedent,

the Seventh Circuit reasoned that Apprendi applies in Section 841 prosecutions only when the

sentence imposed exceeds the otherwise applicable maximum. Pet. App. 7a, 10a-12a; see United

States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), cert. denied, 129 S. Ct. 1613 (2009). Because

the district court sentenced Krieger to a term of twenty years, the statutory maximum permitted

for simple distribution, the Seventh Circuit found no Apprendi violation. Pet. App. 12a.

Finally, the Seventh Circuit held that the Sixth Amendment is not implicated by the fact

that the “death results” provision raised Krieger’s mandatory minimum sentence from zero to

twenty years. Pet. App. 12a, 19a-20a, 24a. The Seventh Circuit noted that this Court held in

Harris v. United States, 536 U.S. 545 (2002), and McMillan v. Pennsylvania, 477 U.S. 79

(1986), that the Sixth Amendment does not apply to facts dictating a mandatory minimum

5

sentence within an otherwise authorized sentencing range. The Seventh Circuit recognized that

“[t]he thread by which McMillan hangs may be precariously thin” because, as several Justices of

this Court have since pointed out, “[l]ogically, there is no reason why [Apprendi’s] rule should

not also apply to mandatory minimums.” Pet. App. 24a. Nevertheless, the Seventh Circuit

concluded that Harris and McMillan remain binding precedent and apply here. Pet. App. 24a.

REASONS FOR GRANTING THE WRIT

The circuits are in disarray over whether the “death results” provision in 21 U.S.C.

§ 841(b)(1)(C) must be treated as an element of an aggravated offense instead of a mere

sentencing factor. Four circuits require that the “death results” provision be treated as an

element – two as a matter of statutory construction and two on Sixth Amendment grounds. By

contrast, two other circuits have held that the “death results” provision is a mere sentencing

factor, and six additional courts of appeals have interpreted the Sixth Amendment in a manner

that allows it to be treated as such. Furthermore, courts in all of these camps have urged this

Court to revisit the constitutional jurisprudence that is at the source of this debate.

This Court should address this situation. The question whether the “death results”

provision is an element or a sentencing factor is extremely important and is outcome

determinative in this case. Furthermore, the Seventh Circuit’s decision to treat the provision as a

sentencing factor is incorrect. This Court’s statutory-construction and constitutional precedents

dictate that the provision must be an element. To any extent that this Court’s fractured decision

in Harris v. United States, 536 U.S. 545 (2002), suggests otherwise, this is the perfect case – as

the Seventh Circuit itself recognized – to revisit that decision and to bring clarity to this Court’s

Sixth Amendment case law.

6

I. The Circuits Are In Disarray Over Whether The “Death Results” Provision Should Be Treated As An Element.

The circuits are divided three ways over whether the “death results” provision in Section

841(b)(1)(C) is an element of an aggravated offense (meaning it must be alleged in the

indictment and proven to a jury beyond a reasonable doubt) or a mere sentencing factor

(meaning it need only be proven to a judge by a preponderance of the evidence). In addition, the

constitutional character of this conflict begs reconsideration of the decision in Harris in order to

clarify this Court’s Apprendi jurisprudence in a more fundamental manner. Apprendi, 530 U.S.

466.

A. The Circuits Are Divided Three Ways Over Whether The “DeathResults” Provision Is An Element.

1. In four circuits, the “death results” provision is treated as an element of an aggravated

offense – two on statutory grounds and two on constitutional grounds.

As the Government acknowledged below, the Sixth Circuit “breaks with other circuits”

and holds that “the ‘if death results’ portion of § 841(b)(1)(C) is a sentencing element, not a

sentencing factor.” Gvt’s Objections to Presentence Report at 11. In the first of two published

opinions on the issue, the Sixth Circuit explained that the “structure” of Section 841(b) –

namely, the fact that it “increas[es] the maximum penalty from 20 years to that of life

imprisonment” when death results – reveals the “legislature’s intent,” as well as the Sixth

Amendment’s command, to treat the “death results” provision as an element of an aggravated

offense. United States v. Rebmann, 226 F.3d 521, 525 (6th Cir. 2000). The court later backed

off of this constitutional holding, see United States v. Leachman, 309 F.3d 377, 385 (6th Cir.

2002), but it has held fast to its determination as a matter of statutory construction that death

7

resulting “is not a mere sentencing factor . . . but rather constitutes an element of a separate

crime (distribution resulting in death) that must be proved beyond a reasonable doubt.” United

States v. Rebmann, 321 F.3d 540, 542 (6th Cir. 2003); accord United States v. Mann, 195 Fed.

Appx. 430, 438 (6th Cir. 2006).

The “death results” provision is also treated as an element in the First Circuit. In 2002,

the District of Massachusetts held on statutory grounds that the “death results” provision is an

element. United States v. Martinez, 234 F. Supp. 2d 80, 83-88 (D. Mass. 2002). The

Government seems to accept that decision in prosecuting cases in the First Circuit, and the First

Circuit itself appears to have endorsed that approach. In particular, in United States v. Jimenez,

498 F.3d 82 (1st Cir. 2007), a defendant who had received a twenty-year sentence under the

provision argued that he did not have notice that his plea would encompass an admission that

death resulted from the drug he distributed. The court deemed the defendant’s argument a “non-

starter,” however, because the Government had treated death resulting as “an essential element

of the charge” and thus “part and parcel of both the indictment and the offense of conviction.”

Id. at 86-87.

In two other circuits, the Sixth Amendment, as elucidated in Apprendi v. New Jersey, 530

U.S. 466 (2000), requires the “death results” provision to be treated as an element. Under

Apprendi, any provision that “increase[s] the prescribed range of penalties to which a criminal

defendant is exposed” must be treated as an element. Id. at 490 (citation omitted). As the

Government acknowledged below, Gvt. C.A. Br. 19, to the extent this constitutional rule turns

solely on the defendant’s statutory exposure, rather than the sentence actually imposed, the

“death results” provision (as well as other provisions in Section 841(b) dealing with drug

8

quantity and type) must always be treated as an element because it increases the statutory

maximum from twenty years to life in prison.

As the Government also acknowledged, id., the Second Circuit (in a decision joined by

then-Judge Sotomayor) has concluded that the Apprendi rule does indeed turn solely on the

defendant’s statutory exposure. United States v. Gonzalez, 420 F.3d 111, 129 (2d Cir. 2005); see

also United States v. Confredo, 528 F.3d 143, 153 (2d Cir. 2008) (reaffirming this view).

Addressing the issue in the context of another of Section 841(b)’s provisions involving drug

quantity, the Second Circuit in Gonzalez squarely rejected the argument that “Apprendi and its

progeny apply only to prosecutions that actually result in sentences exceeding otherwise

applicable maximums.” 420 F.3d at 129. If a provision of Section 841(b) “substitute[s] an

increased sentencing range for the one otherwise applicable to the case,” id., the Second Circuit

holds that the Sixth Amendment categorically requires the provision to be deemed an element.

The Ninth Circuit has followed the same reasoning. In United States v. Velasco-Heredia,

319 F.3d 1080 (9th Cir. 2003), the defendant’s drug distribution conviction subjected him to a

sentence of from zero to five years. The district court sentenced him to five years, based on a

finding by a preponderance of the evidence that the defendant distributed a certain quantity of

marijuana and thus was subject to an increased sentencing range of five to forty years. On

appeal, the Ninth Circuit held that “because Velasco-Heredia’s sentencing range as fixed by the

court’s verdict was constitutionally restricted to zero to five years, . . . his exposure to the

imposition of from five to forty years amounted to clear Apprendi error.” Id. at 1085 (emphasis

added); see also United States v. Hollis, 490 F.3d 1149, 1155 n.3 (9th Cir. 2007) (reaffirming

this interpretation of Apprendi); United States v. Thomas, 355 F.3d 1191, 1201 (9th Cir. 2004)

9

(same). Consistent with these decisions, the Government customarily treats the “death results”

provision as an element in indictments filed within that circuit. See, e.g., Br. of Appellant at 31,

United States v. Odegaard, 390 Fed. Appx. 674 (9th Cir. 2009) (No. 08-10462), available at

2009 WL 4274907.

2. By contrast, two other circuits have rejected these statutory and constitutional

arguments and have held that the “death results” provision is a sentencing factor.

The Seventh Circuit here acknowledged that the severity of the sentence and

considerations of fairness point, as a matter of statutory construction, “toward defining ‘death

resulting’ as an element of the crime.” Pet. App. 19a. Nevertheless, the court determined that

the provision is a mere sentencing factor because (1) the provision appears in a subsection of the

statute titled “penalties” and (2) the provision is situated within the same subsection as

provisions establishing staggered sentencing ranges based on drug quantity, which the Seventh

Circuit has held are sentencing factors. Pet. App. 18a-19a.

The Seventh Circuit also held that the Sixth Amendment permits the “death results”

provision to be a sentencing factor, so long as the defendant, as here, receives the mandatory-

minimum twenty-year sentence. Pet. App. 24a. Expressly taking a “contrary approach[]” to “the

Second and Ninth Circuits,” the Seventh Circuit has rejected the argument that the Sixth

Amendment requires a provision to be treated as an element whenever it exposes the defendant

to a higher statutory maximum. United States v. Clark, 538 F.3d 803, 812 (7th Cir. 2008), cert.

denied, 129 S. Ct. 1613 (2009). Rather, the Seventh Circuit looks only to the sentence that the

defendant actually received. Id. at 812. So long as that sentence was statutorily available

without invoking the provision at issue – as a twenty-year sentence is for any defendant

10

convicted of simple drug distribution – “Apprendi has no application.” Id. at 811-12; accord

Pet. App. 11a-12a, 37a-38a.

The Fourth Circuit likewise has concluded that the “death results” provision is a

sentencing factor. United States v. Patterson, 38 F.3d 139, 143-44 (4th Cir. 1994). Although

this ruling predates this Court’s Apprendi jurisprudence, the Fourth Circuit’s statutory analysis

paralleled the Seventh Circuit’s here. See id. at 143-44 (emphasizing the subsection’s title of

“penalties” and that it appears alongside the drug quantity provisions). Furthermore, the Fourth

Circuit has since rejected the constitutional argument that Apprendi applies to provisions in

Section 841(b) based on exposure instead of the actual sentence imposed. United States v.

General, 278 F.3d 389, 393 (4th Cir. 2002). Accordingly, Patterson remains good law in that

circuit and would have dictated an affirmance of Krieger’s sentence.

3. Finally, although the six other circuits with jurisdiction over federal criminal cases

have not yet considered as a matter of statutory construction whether the “death results”

provision is an element, those courts have interpreted the Apprendi doctrine in a manner that

allows the provision to be treated as a sentencing factor. Like the Seventh and Fourth Circuits,

these circuits hold that the Sixth Amendment allows provisions in Section 841(b) to be treated as

sentencing factors so long as the sentences actually imposed do not exceed otherwise available

statutory maximums. See United States v. Vazquez, 271 F.3d 93, 98-99 (3d Cir. 2001) (en banc);

United States v. Keith, 230 F.3d 784, 787 (5th Cir. 2000); United States v. Webb, 545 F.3d 673,

677 (8th Cir. 2008); United States v. Thompson, 237 F.3d 1258, 1262 (10th Cir. 2001); United

States v. Sanchez, 269 F.3d 1250, 1279 (11th Cir. 2001) (en banc); United States v. Graham, 317

11

F.3d 262, 273-74 (D.C. Cir. 2003).2 Three of these circuits have applied this rule specifically to

reject Apprendi challenges to treating the “death results” provision as a sentencing factor. See

United States v. Cathey, 259 F.3d 365, 368 n.12 (5th Cir. 2001); United States v. McIntosh, 236

F.3d 968, 976 (8th Cir. 2001); United States v. Rodriguez, 279 F.3d 947, 950 (11th Cir. 2002).

Consequently, as a matter of practice (if not airtight law), the “death results” provision is treated

in these circuits as a sentencing factor.3

B. The Circuits Are Increasingly Vexed Over Whether The SixthAmendment Applies To Factual Findings Dictating MandatoryMinimum Sentences.

The Seventh Circuit’s decision also implicates the escalating uncertainty over the

relationship between Apprendi and this Court’s fractured decision in Harris v. United States, 536

U.S. 545 (2002). In Harris, the Court considered whether Sixth Amendment protections applied

to a factual finding that increased the defendant’s mandatory minimum sentence from five to

seven years. 536 U.S. at 550-51. Relying on this Court’s earlier decision in McMillan v.

Pennsylvania, 477 U.S. 79 (1986), a plurality of four Justices reasoned that facts raising the

sentencing floor are constitutionally different from facts raising the ceiling, such that only the

latter need be treated as elements. See Harris, 536 U.S. at 557. Four dissenters maintained that

Apprendi’s principles apply with equal force to maximum and minimum sentences alike. See id.

2 The First and Sixth Circuits have also held that Apprendi turns on the sentence actuallyimposed instead of statutory exposure. See United States v. Lizardo, 445 F.3d 73, 89 (1st Cir.2006); United States v. Copeland, 321 F.3d 582, 603 (6th Cir. 2003). These decisions, however,are irrelevant here because the “death results” provision is treated, on statutory grounds, as anelement in those circuits.

3 McIntosh deals with the “death results” provision in Section 841(b)(1)(A), but the EighthCircuit correctly noted that this provision is “identical” to the “death results” provision inSection 841(b)(1)(C). See McIntosh, 236 F.3d at 972 n.5.

12

at 572-83 (Thomas, J., dissenting). Justice Breyer cast the deciding vote. He agreed with the

dissent that no constitutional or even “logic[al]” distinction can be drawn between factual

findings that raise sentencing minimums and those that raise sentencing maximums. Harris 536

U.S. at 569. He concurred in the plurality’s judgment, however, on the ground that he did not

“yet” accept the Apprendi rule. Id.

During last Term’s proceedings in United States v. O’Brien, 130 S. Ct. 2169 (2010),

Justice Breyer suggested that the time has come to revisit Harris and to apply the Sixth

Amendment to mandatory minimums, explaining that he continues to believe that “Apprendi

does apply to mandatory minimums” and Apprendi has now been “the law . . . for some time.”

O’Brien, 130 S. Ct. at 2183 n.6 (Stevens, J., concurring) (quoting Justice Breyer’s comment at

oral argument). This Court did not reach the issue, however, because it ruled as a matter of

statutory construction that the provision at issue was an element.4

The Seventh Circuit in this case expressly took note of Justice Breyer’s comments in

O’Brien. Pet. App. 21a n.4. Accordingly, it observed that “[t]he thread by which McMillan

hangs may be precariously thin” and expressed its strong agreement that “[l]ogically, there is no

reason why [the Apprendi] rule should not also apply to mandatory minimums.” Pet. App. 21a,

24a. At least four other courts of appeals have similarly questioned Harris’s logic and

continued vitality. See Gonzalez, 420 F.3d at 126 (“The logic of the distinction” upon which

Harris rests “is not easily grasped.”); United States v. Grier, 475 F.3d 556, 575 (3d Cir. 2007)

4 Justice Thomas would have reached the issue and held, in accordance with his dissent inHarris, that “[i]f a sentencing fact either raises the floor or raises the ceiling of a range ofpunishments to which a defendant is exposed, it is, by definition, [an] elemen[t].” O’Brien, 130S. Ct. at 2184 (Thomas, J., concurring in the judgment) (quotation marks omitted).

13

(Ambro, J., concurring) (“Many, including Justice Breyer in Harris itself, have been unable to

reconcile McMillan and Harris with the Supreme Court’s holding in Apprendi.”); United States

v. Dare, 425 F.3d 634, 641 (9th Cir. 2005) (“We agree that Harris is difficult to reconcile with

the Supreme Court’s recent Sixth Amendment jurisprudence . . . .”); United States v. Barragan-

Sanchez, 165 Fed. Appx. 758, 760 (11th Cir. 2006) (questioning Harris’s logic but noting that

“until the Supreme Court holds that mandatory minimums violate the Fifth and Sixth

Amendments of the Constitution, we are obliged to continue following Harris as precedent”).

At the same time, the courts of appeals realize that only this Court can resolve the

uncertainty surrounding Harris. As the Eleventh Circuit put it, “[i]t is not given to us to overrule

the decisions of the Supreme Court . . . even if we are convinced that the Supreme Court will

overturn its previous decision the next time it addresses the issue.” Barragan-Sanchez, 165 Fed.

Appx. at 760 (quotation and citation omitted); accord Pet. App. 24a (expressing similar

sentiment). Accordingly, even in circuits in which the law currently allows the “death results”

provision to be treated as a sentencing factor, judges expect – and many urge – this Court to

revisit Harris and to abandon it in a case such as this one.

II. This Case Presents Issues Of Substantial Importance.

The question whether a statutory provision constitutes an element or a sentencing factor

is one of “surpassing importance.” Apprendi, 530 U.S. at 476 (2000); see also Pet. App. 10a

(noting “the critical nature of the distinction”). For three reasons, this is particularly so in the

context of the “death results” provision.

1. Treating the “death results” provision as a sentencing factor rather than an element can

dramatically increase a defendant’s term of incarceration. In Krieger’s case, the distinction

14

vaulted her minimum statutory sentence from zero years to twenty, and her maximum statutory

sentence from twenty years to life in prison. If she had been sentenced in Boston, New York,

Detroit, or Los Angeles, the sentencing judge would have been free to impose a substantially

shorter prison sentence.

2. The distinction between treating the “death results” provision as an element or a

sentencing factor affects sentences that numerous defendants across the country receive each

year. The federal government brings thousands of drug distribution prosecutions annually. Such

cases, by their nature, are bound to raise frequent disputes regarding whether the use of the drugs

resulted in someone’s death (or serious bodily injury, which triggers the same enhanced

sentencing range). And when such disputes arise, the Government’s burden and method of proof

can be dispositive. See, e.g., United States v. King, 2006 WL 2367339, at *3 (W.D. Mich. 2006)

(noting “the inherent difficulty in proving that the particular drugs an individual used resulting in

their death were the same drugs distributed . . . by a defendant”).

Three cases cited above from California, Tennessee, and Texas illustrate the point. In all

three cases, the Government alleged, but was unable to prove to a jury beyond a reasonable

doubt, that death resulted from the drugs that the defendant distributed. In the Sixth and Ninth

Circuits, where the “death results” provision is treated as an element, the district court ultimately

sentenced the defendants, respectively, to two and one-half and five years in prison. See

Rebmann, 321 F.3d at 542; Odegaard, 390 Fed. Appx. at 674 & Br. for Appellant in Odegaard,

at 7-9, 2009 WL 4274907. By contrast, in the Fifth Circuit, where the “death results” provision

may be treated as a sentencing factor, the jury’s rejection of the Government’s allegation was

irrelevant. The district court was still required to impose a twenty-year sentence because it

15

determined that death had more likely than not resulted from the drugs distributed. See Cathey,

259 F.3d at 367-68.

3. The fair and effective administration of justice requires a clear rule for deciding

whether the “death results” provision constitutes a sentencing factor or an element of an

aggravated offense. In contrast to mere sentencing factors, “elements must be charged in the

indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt.”

Jones v. United States, 526 U.S. 227, 232 (1999). Accordingly, the distinction here affects

“[p]rosecutors, who must draft indictments and develop evidence to meet their burden of proof;

defendants and their counsel, who must decide whether to challenge the sufficiency of the

government’s case or pursue plea negotiations; and trial judges, who must rule on the relevancy

and sufficiency of evidence, prepare jury instructions, and ensure the factual bases for guilty

pleas.” Gonzalez, 420 F.3d at 131. Furthermore, so long as uncertainty persists over whether

the “death results” provision is an element or a sentencing factor, the Government may vary its

treatment of the provision – as it did in this very case – based upon the strength of its evidence.

Pet. App. 40a; see also Pet. App. 44a-45a (original and superseding indictments).

III. This Case Is An Ideal Vehicle For The Court To Resolve These Issues.

This case is an ideal vehicle for clarifying whether, as both a statutory and constitutional

matter, Section 841(b)(1)(C)’s “death results” provision is an element or a sentencing factor.

The question whether the provision must be treated as an element is outcome

determinative here. The district court explicitly found that “the Government would not have

been able to meet its burden of proving [death results] beyond a reasonable doubt.” Pet. App.

39a. The sentencing judge made clear that on remand he would give Krieger a significantly

16

shorter sentence if the “death results” provision did not bind him to apply the elevated range.

Pet. App. 42a. This case thus stands in contrast to Clark, in which the Government opposed

certiorari on the ground that “it is far from clear” that the question whether Section 841(b)’s drug

quantity provisions are elements “has significant practical importance.” Br. in Opp. at 10, Clark

v. United States, No. 08-673 (U.S. Feb. 20, 2009). That assertion, whatever its merit with

respect to the factual dispute and provision at issue in Clark, is certainly not true here.

Furthermore, this case places the uncertainty surrounding McMillan and Harris in stark

relief. For one thing, the constitutional circuit split here arises from the intersection of those

cases with Apprendi. What is more, as the Seventh Circuit put it, “[t]his case well demonstrates

what happens when the principles of McMillan are pushed to their extreme.” Pet. App. 24a. The

Sixth Amendment prohibits “relegat[ing the jury] to making a determination that the defendant

at some point did something wrong, a mere preliminary to a judicial inquisition into the facts of

the crime the State actually seeks to punish.” Blakely v. Washington, 542 U.S. 296, 306-07

(2004). Yet here, the district court itself confessed that “one cannot escape the conclusion that

Krieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for

homicide.” Pet. App. 39a.

IV. The Seventh Circuit’s Decision Is Incorrect.

The Seventh Circuit erred in both its statutory and constitutional analysis.

A. Section 841(b)(1)(C) Is An Element Of An Aggravated Offense As AMatter Of Statutory Construction.

Five factors – sometimes called the “Castillo factors” – determine whether a statutory

provision sets out an element of a greater offense or a mere sentencing factor: “(1) language and

17

structure, (2) tradition, (3) risk of unfairness, (4) severity of the sentence, and (5) legislative

history.” O’Brien, 130 S. Ct. at 2175 (summarizing the multi-factor test applied in Castillo v.

United States, 530 U.S. 120 (2000); Harris, 536 U.S. 545; Jones, 526 U.S. 227; and Almendarez-

Torres v. United States, 523 U.S. 224 (1998)). These factors dictate that the “death results”

provision is an element.

1. As the Seventh Circuit acknowledged, “the pendulum swings sharply in Krieger’s

favor” with respect to fairness and the severity of the sentence. Pet. App. 17a. The maximum

statutory sentence to which a defendant is exposed jumps from twenty years to life in prison

based on a “death results” finding. And just as the machinegun provision at issue in O’Brien

“vault[ed] a defendant’s mandatory minimum sentence from 5 to 30 years,” O’Brien, 130 S. Ct.

at 2177, “[t]he fact that a death has resulted catapults a defendant’s minimum sentence from zero

to twenty years” under Section 841, Pet. App. 17a. Indeed, we are unaware of any case in

which, absent a finding that death or serious bodily injury resulted, a first-time offender has

received a sentence anywhere near twenty years under Section 841(b)(1)(C) for distributing

divers amount of a controlled substance.

Legal tradition and past congressional practice also indicate that the “death results”

provision is an element of an aggravated offense. “Sentencing factors traditionally involve

characteristics of the offender – such as recidivism, cooperation with law enforcement, or

acceptance of responsibility. Characteristics of the offense itself are traditionally treated as

elements.” O’Brien, 130 S. Ct. at 2176 (citation omitted). Thus, just as this Court noted in

Jones with respect to “serious bodily injury,” 526 U.S. at 235, death results is traditionally an

element of an aggravated offense. Indeed, the question whether death resulted is what separates

18

assault or reckless endangerment from manslaughter, an ordinary felony from felony murder,

and noncapital from capital offenses. See Kennedy v. Louisiana, 554 U.S. 407, 437-38 (2008).

Contrary to the Seventh Circuit’s assertions, the text and structure of Section

841(b)(1)(C) reinforce the conclusion that the “death results” provision is an element. Facts that

expose defendants to higher penalties than otherwise are available are typically elements of

aggravated sentences. See Apprendi, 530 U.S. at 482-83 & n.10 (recounting this tradition);

Jones, 526 U.S. at 233 (applying this principle). By contrast, sentencing factors generally

operate only to “limit the sentencing court’s discretion in selecting a penalty within the range

already available to it.” Harris, 536 U.S. at 559 (plurality opinion) (emphasis added) (quoting

McMillan, 477 U.S. at 87-88). Section 841(b)(1)(C)’s “death results” provision does the former;

it raises the statutory maximum from twenty years to life in prison. Indeed, the provision not

only exposes the defendant to “steeply higher penalties,” Jones, 526 U.S. at 233, but it

establishes a new sentencing range that is almost wholly distinct from the otherwise applicable

range of zero to twenty years for the basic offense of distributing a controlled substance. The

two ranges intersect only at a single point.

Construing the “death results” provision as a sentencing factor would also require

ascribing one of two implausible intentions to Congress. The first such hypothetical goal is that

Congress intended to enact a sentencing factor that would be unconstitutional in all applications

but one (the imposition of a twenty-year sentence), insofar as the Sixth Amendment indisputably

forbids a sentencing factor from leading to higher sentences than are otherwise available and

twenty years is the maximum sentence for simple distribution. But imputing that intent to

Congress would fly in the face of the standard assumption that Congress “legislates in the light

19

of constitutional limitations.” Jones, 526 U.S. at 240 (quoting Rust v. Sullivan, 500 U.S. 173, 191

(1991).

The second hypothetical goal is that Congress intended the “death results” provision to

alternate between being an element and a sentencing factor, depending on the sentence actually

imposed. But as Judge Becker, echoing others, has noted with respect to other provisions of

Section 841, it “strains credulity . . . to assert that Congress intended for [facts] to be treated as

sentencing factors in some cases and as elements in others. I know of no statute written in such

a manner, nor am I aware of any statutes construed this way.” Vazquez, 271 F.3d at 113

(Becker, C.J., concurring and dissenting); accord United States v. Buckland, 289 F.3d 558, 580

(9th Cir. 2002) (en banc) (Hug, J., concurring). “Either facts that affect the sentence a defendant

receives are elements or they are not; they are not elements for some purposes and not for

others.” United States v. Promise, 255 F.3d 150, 185 (4th Cir. 2001) (en banc) (Luttig, J.,

concurring in the judgment).

2. The Seventh Circuit nevertheless concluded that Section 841(b)(1)(C)’s “death results”

provision is a sentencing factor because (1) it appears in the portion of the statute labeled

“penalties” and (2) it appears in the same subsection as escalating penalties based on drug type

and quantity, which the Seventh Circuit has held are sentencing factors. Pet. App. 16a. But

neither of these rationales withstands scrutiny.

First, this Court has made clear that “[t]he title alone does not tell us” whether a

provision is an element or a sentencing factor. Castillo, 530 U.S. at 125. Indeed, in both

Castillo and O’Brien, this Court held that provisions appearing in a subsection entitled

“penalties” were elements. See Castillo, 530 U.S. at 125, 131 (construing 18 U.S.C.

20

§ 924(c)(1)); O’Brien, 130 S. Ct. at 2180 (construing 18 U.S.C. § 924(c)(1)(B)(ii)). Such an

outcome is even more appropriate in the context of Section 841, for “the headings ‘Unlawful

Acts’ and ‘Penalties’ that appear in [that section of] the United States Code were not part of the

legislation enacted by Congress.” Buckland, 289 F.3d at 565. Rather, they “were inserted as

margin notes by the Office of the Federal Register, National Archives and Records Services, and

became subsection headings when the Controlled Substances Act of 1970 was transposed into

the United States Code.” Id. Relying on those headings to infer an intended division between

elements and sentencing factors is not only inappropriate, but potentially misleading.

Second, it is not at all clear that the drug quantity provisions in Section 841(b)(1) upon

which the Seventh Circuit’s structural argument relies are actually sentencing factors instead of

elements. Other courts have in fact held them to be elements. See, e.g., Graham, 317 F.3d at

274-75; Buckland, 298 F.3d at 568. But even if the drug quantity provisions were sentencing

factors, it is not unusual for an element to appear interspersed between sentencing factors. The

provision at issue in O’Brien, for instance, was sandwiched between sentencing factors, yet this

Court held that it was an element. O’Brien, 130 S. Ct. at 2180. In short, the mere placement of a

provision alongside sentencing factors cannot trump where, as here, “the substantial weight of

the other Castillo factors” points in the opposite direction. O’Brien, 130 S. Ct. at 2180.

B. Treating The “Death Results” Provision As A Sentencing FactorWould Violate The Sixth Amendment.

Even if the statutory analysis alone did not resolve this case, treating the “death results”

provision as a mere sentencing factor would violate the Sixth Amendment for two reasons. First,

21

a “death results” finding exposes a defendant to a higher maximum statutory sentence. Second,

such a finding vaults the minimum statutory sentence from zero to twenty years.

1. Treating the “death results” provision as a mere sentencing factor would violate the

Sixth Amendment because the provision increases a defendant’s maximum statutory sentence

from twenty years to life in prison.

This Court held in Apprendi that “it is unconstitutional for a legislature to remove from

the jury the assessment of facts that increase the prescribed range of penalties to which a

criminal defendant is exposed.” 530 U.S. at 490 (citation omitted). Thus, in that case and in

subsequent ones, this Court has focused on whether the statutory provision at issue “exposed”

the defendant to a higher maximum sentence than was otherwise permissible, rather than on the

sentence ultimately imposed. Id.; see also Cunningham v. California, 549 U.S. 270, 281 (2007)

(“[A]ny fact that exposes a defendant to a greater potential sentence must be found by a jury, not

a judge, and established beyond a reasonable doubt.” (emphasis added)); Sattazahn v.

Pennsylvania, 537 U.S. 101, 111 (2003) (plurality opinion) (“Put simply, if the existence of any

fact (other than a prior conviction) increases the maximum punishment that may be imposed on a

defendant, that fact . . . constitutes an element.” (emphasis added)); Ring v. Arizona, 536 U.S.

584, 613 (2002) (Kennedy, J., concurring) (Apprendi applies when “the finding of an

aggravating circumstance exposes ‘the defendant to a greater punishment than that authorized by

the jury’s guilty verdict.’” (emphasis added) (citation omitted)).

Following its own precedent, however, the Seventh Circuit held that a statutory provision

that exposes a defendant to a longer sentence need not be treated as an element if the judge

actually imposes a sentence within an otherwise applicable range. Pet. App. 28a-29a; accord

22

Clark, 538 F.3d at 812. Thus, even though the district court’s finding that death resulted

increased Krieger’s statutory maximum sentence from twenty years to life, the Seventh Circuit

held that her twenty-year sentence did not violate Apprendi because it was within the previously

available statutory range of zero to twenty years. Pet. App. 24a.

But a court cannot evade Apprendi through its choice of sentence. History and tradition

entitle defendants to fair notice “from the face of the felony indictment” of the maximum

punishments they face. Apprendi, 530 U.S. at 478. Thus, as this Court already has explained

with specific reference to the escalating sentencing ranges in Section 841(b), the Sixth

Amendment does not allow a defendant’s “maximum potential sentence” to “balloon” to life in

prison “with no warning in his indictment or his plea.” Blakely, 542 U.S. at 311.

What is more, the potential loss of liberty is not the only reason why the Sixth

Amendment requires all facts exposing a defendant to heightened punishment to be proved to a

jury beyond a reasonable doubt. Such facts must also be treated as elements because “the stigma

attaching to the offense [is] heightened” when a court invokes a statutory provision allowing

greater punishment when the offense is committed in a particular way or with particular results.

Apprendi, 530 U.S. at 484.

Neither McMillan nor Harris suggests otherwise. The statutory provisions at issue in

those cases did not “authorize the judge to impose ‘steeply higher penalties’ – or higher penalties

at all – once the facts in question were found.” Harris, 536 U.S. at 554; see also McMillan, 477

U.S. at 81-82. Instead, those provisions “alter[ed] only the minimum” permissible sentence.

Harris, 536 U.S. at 554. Thus, Harris explicitly left undisturbed Apprendi’s holding that “‘those

23

facts that determine the maximum sentence the law allows,’ . . . are necessarily elements of the

crime.” Harris, 536 U.S. at 565 (plurality opinion) (citation omitted).

No other constitutional rule would be workable in the everyday administration of

criminal justice. The question whether a factual finding constitutes an element or a sentencing

factor affects the substance of an indictment, the burden of proof, plea negotiations, and jury

instructions. As such, prosecutors, trial judges, and defendants alike “all need to know long

before sentencing which facts must be proved to a jury and which ones can be reserved for

resolution by the sentencing judge.” Gonzalez, 420 F.3d at 131. “[J]ustice would hardly be well

served by a rule that delayed the identification of one or more elements of a crime until

sentencing.” Id.5

2. Treating the “death results” provision as a mere sentencing factor here would also

violate the Sixth Amendment because it dramatically increases the mandatory minimum

sentence. Although some language in Harris suggests that judicial factfinding is categorically

exempt from the Sixth Amendment whenever it increases only a sentencing floor, this case

brings into sharp relief why such a rule is unsound – or why, at the very least, Harris and

5 Even if the Apprendi rule turned on the actual sentence imposed, it would still violate the SixthAmendment to impose a twenty-year sentence based on a court’s treatment of the “death results”provision as a sentencing factor. If a federal sentence is statutorily reasonable under theSentencing Reform Act only because of “aggravating facts . . . that distinguish the case from themine run,” the Sixth Amendment requires that those facts be treated as elements. Rita v. UnitedStates, 551 U.S. 338, 368 (2007) (Scalia, J., concurring in part and concurring in the judgment);accord Gall v. United States, 552 U.S. 38, 60 (2007) (Scalia, J., concurring). Even though atwenty-year sentence for distributing divers amounts of a controlled substance is theoreticallyavailable under Section 841(b)(1)(C), such a sentence would be statutorily reasonable under thecircumstances present here only if death resulted.

24

McMillan should be limited to the kinds of “incremental changes in the minimum” sentence at

issue in those cases. Harris, 536 U.S. at 554.

The Apprendi doctrine, as originally minted, requires all facts that increase the

defendant’s “prescribed range of penalties” to be proved to a jury beyond a reasonable doubt.

Apprendi, 530 U.S. at 490. And mandatory minimums, as Justice Thomas explained in his

dissent in Harris, unquestionably “alter[] the prescribed range of penalties to which [the

defendant] is exposed.” Harris, 536 U.S. at 575 (Thomas, J., joined by Stevens, Souter, and

Ginsburg, JJ., dissenting). To be sure, a fact dictating a mandatory minimum does not increase

the maximum permissible sentence. But such a statutory provision nonetheless establishes an

aggravated form of an offense, and quite frequently (as here) requires a judge to impose a longer

sentence than he otherwise would. “As a matter of common sense,” therefore, “an increased

mandatory minimum heightens the loss of liberty and represents the increased stigma society

attaches to the offense.” Id. at 577-78.

Stare decisis should not stand in the way of giving effect to this reality. This Court has

explained that a decision is of “questionable precedential value” when a plurality opinion renders

a judgment but is unable to muster a controlling view concerning the law. Seminole Tribe v.

Florida, 517 U.S. 44, 66 (1996). In Seminole Tribe, for example, this Court reconsidered and

overturned a prior decision in part because “a majority of the Court” in the case – the concurring

opinion providing the fifth vote, and the dissent – had “expressly disagreed with the rationale of

the plurality.” Id. Similarly, in Danforth v. Minnesota, 552 U.S. 264 (2008), this Court

explained that when “there were actually five votes supporting the dissent’s views” in a case,

“the dissent rather than the plurality” should inform future treatments of the issue. Id. at 286-87.

25

The same is true here. In Harris, both Justice Breyer’s concurrence and the four dissenters

expressly disagreed with the plurality’s view that the Apprendi doctrine does not apply to

mandatory minimum sentences. The dissent’s view should therefore prevail.

Prompt reconsideration of Harris is all the more appropriate because, like other cases this

Court has overruled, it “involves a collision with prior doctrine more embracing in its scope,

intrinsically sounder, and, verified by experience.” Helvering v. Hallock, 309 U.S. 106, 119

(1940). The consistent refrain from a majority of this Court, as well as the lower courts, has

been that Harris is illogical in light of the Sixth Amendment decisions that preceded it (as well

as several subsequent ones). Accordingly, following the logic of the “‘intrinsically sounder’

doctrine established in prior cases better serves the values of stare decisis than would following

a more recently decided case inconsistent with the decisions that came before it.” Adarand

Constructors, Inc. v. Pena, 515 U.S. 200, 231 (1995) (plurality opinion); see also United States

v. Dixon, 509 U.S. 688, 704 (1993) (overruling decision that was “wholly inconsistent with

earlier Supreme Court precedent”).

At the very least, this Court should take this opportunity to limit Harris to the kinds of

“incremental changes in the minimum” sentence at issue in that case. This Court noted in

McMillan itself that when a particular fact is “the tail which wags the dog of the substantive

offense,” the Constitution might require that fact to be proven beyond a reasonable doubt to the

jury. McMillan, 477 U.S. at 86-91; see also Blakely, 542 U.S. at 344 (Breyer, J., dissenting)

(reiterating this possibility). Such is the case here. As the district court explicitly recognized,

the “death results” finding is “the tail that wags the dog” of Krieger’s offense of conviction. Pet.

App. 42a. “[O]ne cannot escape the conclusion that Krieger, while convicted of distribution of

26

divers amounts of narcotics, is being sentenced for homicide.” Pet. App. 39a. One way or

another, the Sixth Amendment must prohibit such a result. See Rebmann, 321 F.3d at 544-45.

CONCLUSION

For the foregoing reasons, the petition for a writ of certiorari should be granted.

Respectfully submitted,

MELISSA A. DAY JEFFREY L. FISHERAssistant Federal Public Defender Stanford Law School Counsel of Record Supreme Court Litigation Clinic401 West Main Street 559 Nathan Abbott WayBenton, IL 62812 Stanford, CA 94305(618) 435-2552 (650) 724-7081

27

CERTIFICATE OF SERVICE

I, Melissa A. Day, hereby certify that on this _____ day of ___________, 2011, a true

and correct copy of the foregoing was mailed, first class postage prepaid, to:

Solicitor General of the United StatesRoom 5614, United States Department of Justice

950 Pennsylvania Avenue, N.W.Washington DC 20530-0001.

I further certify that all parties required to be served have been served.

_____________________________MELISSA A. DAY

Assistant Federal Public DefenderCounsel of Record

401 West Main StreetBenton, IL 62812(618) 435-2552

28