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.