{"id":12395,"date":"2010-12-09T09:17:29","date_gmt":"2010-12-09T14:17:29","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=12395"},"modified":"2010-12-09T09:17:29","modified_gmt":"2010-12-09T14:17:29","slug":"convicted-of-drug-distribution-sentenced-for-homicide","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2010\/12\/convicted-of-drug-distribution-sentenced-for-homicide\/","title":{"rendered":"Convicted of Drug Distribution, Sentenced for Homicide"},"content":{"rendered":"

Just in time for exam-writing law professors comes the Seventh Circuit\u2019s opinion in\u00a0<\/em>United States v. Krieger <\/em><\/a>(No. 09-1333) \u2014 a case that has just that sort of\u00a0counter-intuitive, \u201cit can\u2019t be right\u201d flavor that makes great testing fodder.\u00a0 Among other things, the case illustrates the odd place we have ended up in our jurisprudence on procedural rights at sentencing under Apprendi v. New Jersey <\/em>and Harris v. United States.<\/em><\/p>\n

Here\u2019s what happened.\u00a0 Jennifer Krieger was prescribed fentanyl, a powerful opioid,\u00a0to help her with severe back pain.\u00a0 She gave some of the drug to her friend Jennifer Curry for recreational use.\u00a0 Curry misused the fentanyl, as well as a variety of other substances, and died the next day.\u00a0 Krieger was then indicted for distributing fentanyl with death resulting.\u00a0 That\u2019s when things got really weird.\u00a0<\/p>\n

It turns out that the government\u2019s main witness, the medical examiner who concluded that Curry died of fentanyl toxicity, had some serious legal problems of his own and fled the country.\u00a0<\/p>\n

<\/p>\n

Eventually, the government returned a superseding indictment removing the \u201cdeath resulting\u201d language and charging only distribution.\u00a0 Krieger pled guilty.\u00a0 The pre-sentencing report recommended a sentencing range of ten to sixteen months.<\/p>\n

At sentencing, however, the government once again pushed\u00a0the \u201cdeath resulting\u201d provision (21 U.S.C. \u00a7 841(b)(1)(C)) that it had removed from the indictment.\u00a0 The provision requires a minimum sentence of twenty years.\u00a0 The government managed to produce the errant medical examiner for the sentencing hearing, and the judge found by a preponderance of the evidence that death had resulted from Krieger\u2019s distribution of fentanyl.\u00a0 With the 841(b)(1)(C) mandatory minimum, the judge felt compelled to sentence Krieger to twenty years, even though he\u00a0believed the sentence was \u201ctoo harsh.\u201d\u00a0 Indeed, the judge went so far as to indicate that he would not have found that death had resulted from fentanyl beyond a reasonable doubt; it was only because death was a \u201csentencing factor\u201d (hence found using the preponderance standard) and not an element (which would be subject to the higher\u00a0BRD standard) that Krieger received the concededly too harsh sentence.\u00a0 Rarely\u00a0is the significance of\u00a0burden of persuasion made so clear.<\/p>\n

The sentencing judge also nicely captured the \u201cthis just can\u2019t be right\u201d flavor of the case: \u201cKrieger, while convicted of distribution of divers amounts of narcotics, is being sentenced for homicide.\u201d\u00a0 (7)<\/p>\n

The Seventh Circuit nonetheless affirmed.\u00a0 Although Apprendi <\/em>indicates that a defendant has a right to jury fact-finding using the BRD standard when facts increase the range of punishment, Harris <\/em>later specified that Apprendi <\/em>only applies when a fact increases the maximum sentence, not the minimum.\u00a0 As a result, the BRD standard governs when a fact increases the maximum by only\u00a0a small amount (as might happen in a system of mandatory sentencing guidelines), but not necessarily\u00a0when a fact increases the minimum by an enormous amount \u2014 as in Krieger<\/em>, where causing death increased the minimum from zero to twenty years.\u00a0 In practice, Harris <\/em>means that Apprendi <\/em>does not apply precisely where it could be of greatest benefit to defendants.<\/p>\n

Interestingly, the\u00a0Krieger <\/em>court went out of its way to criticize the current state of the jurisprudence, echoing Justice Stevens\u2019 concurring opinion last May in United States v. O\u2019Brien<\/em>, 130 S. Ct. 2169 (2010).\u00a0 Although O\u2019Brien <\/em>was decided on statutory grounds, Stevens took advantage of the opportunity to reiterate his opposition to Harris<\/em> and to highlight a provocative\u00a0comment by Justice Breyer at oral argument (\u201cWell, at some point I guess I have to accept Apprendi<\/em>, because it\u2019s the law and has been for some time.\u201d).\u00a0 The comment is important because Breyer was the crucial fifth vote in the Harris <\/em>majority, and his vote was premised on his continued disagreement with Apprendi<\/em>.\u00a0 If he now accepts Apprendi<\/em>, then it would seem likely that he would reverse his position on mandatory minimums.<\/p>\n

In any event, by pointing the finger of blame at the Supreme Court for the current state of the constitutional law, the Seventh Circuit distracts attention from the statutory analysis that was equally important to the outcome in Krieger <\/em>\u2013 analysis that may actually be more troubling to me than the constitutional analysis.<\/p>\n

Given the absence of constitutional constraint, the key question in the case was whether \u00a7 841(b)(1)(C) ought to be interpreted such that it created an element of a new offense or merely a sentencing factor.\u00a0 Harris <\/em>itself involved a parallel question of statutory interpretation, and the Seventh Circuit relied on the analysis in Harris<\/em>, as well as in the Supreme Court\u2019s more recent O\u2019Brien <\/em>decision, in determining that \u201cdeath resulting\u201d was merely a sentencing factor.\u00a0 The court treated Harris <\/em>and O\u2019Brien <\/em>as interchangeable in this regard, characterizing O\u2019Brien <\/em>as simply a \u201creiterat[ion]\u201d of Harris <\/em>(13).<\/p>\n

From Harris <\/em>and O\u2019Brien<\/em>, the court derived a five-factor test.\u00a0 Although the court found that two factors (fairness and severity of the sentence) cut \u201csharply\u201d in Krieger\u2019s favor, the court ultimately concluded that it was<\/p>\n

hard pressed to ignore the most important considerations: first, the clear command of the language listing \u201cdeath resulting\u201d in the \u201cpenalties\u201d section of the statute, and second, our precedent (at least when considering drug quantity) of defining the considerations in \u00a7 841(b) as sentencing factors . . . . (18-19)<\/p><\/blockquote>\n

I find the analysis here troubling in at least three respects.<\/p>\n

First, it is not clear to me why we should have a special five-factor test for deciding whether a statute creates an element or a sentencing factor.\u00a0 This is a question of statutory interpretation that ought to be decided using all of the normal tools of statutory interpretation, including traditional canons of construction.\u00a0 Here, in particular, the \u201crule of lenity\u201d might appropriately come into play to resolve a question that Congress did not speak to in a clear manner in the statute.\u00a0 (The avoidance canon might also come into play, given that\u00a0the increase in Krieger\u2019s minimum sentence was so much greater than the increases found constitutional in Harris <\/em>and McMillan<\/em>.)\u00a0 Although O\u2019Brien <\/em>did\u00a0enumerate and consider the five factors, it did not hold that these were intended to supplant conventional interpretive approaches or that they should be regarded as an exhaustive list of considerations in all \u201csentencing factor\u201d determinations.\u00a0 Indeed,\u00a0Harris <\/em>treated the factors in an even less formal, nonenumerated\u00a0fashion, and expressly considered the relevance of at least one canon (the avoidance canon).\u00a0 In Krieger<\/em>, it seems that a loose listing of considerations from prior cases is hardening into a formal test.\u00a0 \u00a0<\/p>\n

Second, even if we regard the five O\u2019Brien <\/em>factors as constituting a controlling test, I see no basis in O\u2019Brien <\/em>for treating the first two factors as \u201cthe most important considerations.\u201d\u00a0 Indeed, if anything, I think O\u2019Brien <\/em>meant to lay special emphasis on the fourth factor, the severity of the sentencing increase.\u00a0 O\u2019Brien <\/em>dealt with an increase in a mininum sentence from five years to thirty years, which seems\u00a0hard to distinguish from the zero to twenty in Krieger<\/em>.\u00a0 Here\u2019s what the Court said about\u00a0the five-to-thirty increase:<\/p>\n

But the severity of the increase in this case counsels in favor of finding that the prohibition is an element, at least absent some clear congressional indication to the contrary.\u00a0 (2178)<\/p><\/blockquote>\n

This important language went undiscussed in Krieger<\/em>, but I would read it as creating a presumption that \u201cdeath resulting\u201d is an element, at least in cases with such enormous increases in the minimum.\u00a0<\/p>\n

Finally, I find it merely question-begging that the \u201cdeath resulting\u201d language appears under the heading \u201cpenalties.\u201d\u00a0 (I should also note that O\u2019Brien <\/em>downplayed the significance of formal aspects of statutory structure in deciding whether\u00a0something is a sentencing factor.\u00a0 In this regard, O\u2019Brien <\/em>arguably marks an important departure from Harris<\/em>, which ultimately laid controlling significance on formal structure.)\u00a0 No one seems to think that Congress actually contemplates these procedural issues when enacting mandatory minimum statutes.\u00a0 So why should \u201cpenalty\u201d be equated with \u201csentencing factor\u201d \u2014 a\u00a0technical term of art invented by the Supreme Court, whose\u00a0procedural significance would not be guessed at even by most lawyers, let alone laypeople and politicians?\u00a0 There is certainly no \u201cplain meaning\u201d warrant for reading into the term \u201cpenalties\u201d an intent for judicial fact-finding using the civil evidence standard.\u00a0 Indeed, if anything, the term \u201cpenalties\u201d might conjure for most people the image of the full panoply of procedural protections that have traditionally attended the imposition of punishment.<\/p>\n","protected":false},"excerpt":{"rendered":"

Just in time for exam-writing law professors comes the Seventh Circuit\u2019s opinion in\u00a0United States v. Krieger (No. 09-1333) \u2014 a case that has just that sort of\u00a0counter-intuitive, \u201cit can\u2019t be right\u201d flavor that makes great testing fodder.\u00a0 Among other things, the case illustrates the odd place we have ended up in our jurisprudence on procedural […]<\/p>\n","protected":false},"author":7,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[30,28,74,23],"tags":[],"class_list":["post-12395","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-criminal-law-process","category-federal-sentencing","category-seventh-circuit","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12395","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/7"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=12395"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/12395\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=12395"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=12395"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=12395"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}