Second Circuit Reaffirms that Fact of Prior Conviction Need Not be Found by Jury
In Alleyne v. United States, 133 S. Ct. 2151 (2013), the U.S. Supreme Court held that the Sixth Amendment requires that any fact that increase the mandatory minimum penalty for a crime must be submitted to the jury and found beyond a reasonable doubt. Id. at 2155. Alleyne, however, noted in a footnote that it was not “revisit[ing]” the exception to this general rule for the fact of a prior conviction. Id. at 2160, n.1. Recently, in United States v. Anthony Boykin et al., Nos. 14-851-cr & 14-1033-cr (Walker J., Calabresi, J., Hall, J.), the Second Circuit also declined to revisit that exception. Although there is a certain logic to extending Apprendi v. New Jersey, 530 U.S. 466 (2000), to the fact of a prior conviction—so that any fact that increases the minimum or maximum sentence faced by a defendant must be put to the jury—this exception contained in Apprendi continues to endure.
On August 30, 2016, the Boykin court affirmed a sentence imposed on a defendant convicted of two counts of possession of a firearm in furtherance of a racketeering and narcotics conspiracy in violation of 18 U.S.C. § 924(c). At trial, the district court instructed the jury that the first § 924(c) charge was connected to the racketeering conspiracy, while the second § 924(c) charge was connected to the narcotics conspiracy. The court did not, however, instruct the jury to find whether the defendant possessed the firearms relating to each conspiracy at different times. At sentencing, however, the district court found that each instance of firearm possession constituted a separate “conviction” under 18 U.S.C. § 924(c), triggering the enhanced mandatory minimum penalty applicable to “second or subsequent conviction[s]” under that statute. The district court therefore sentenced the defendant to five years imprisonment for the first § 924(c) conviction, and to twenty-five years imprisonment for the second § 924(c) conviction, with the sentences to run consecutively (as required by Section 924(c)).
The defendant challenged the sentence on appeal, contending that Alleyne’s holding that any fact that enhances a mandatory minimum sentence must be found by a jury required that a jury determine that the two instances in which he illegally possessed firearms in furtherance of the racketeering and narcotics conspiracies, constituting the two violations of § 924(c), occurred at different times. The Second Circuit rejected this argument, citing to Alleyne’s observation that it was not disturbing the doctrine that the fact of a conviction may be found by the court.
In light of the decision in Boykin, it is clear that any expansion of Alleyne to abrogate the fact-of-conviction exception contained in Apprendi will not come from the Second Circuit. Whether the Sixth Amendment requires juries to make findings as to the fact of a defendant’s prior conviction is a question that will be revisited, if at all, by the U.S. Supreme Court.
-By Patrick D. Gibson and Harry Sandick