Sentence Vacated In Summary Order for Plain Error Based on Jury’s Failure to Find a Fact Necessary for Imposition of Mandatory Minimum
In a summary order issued on June 22, 2016 in United States v. Golding, No. 15-891-cr (Straub, Wesley, Droney), the Second Circuit remanded a case for resentencing based on the jury’s failure to find a fact necessary to the court’s imposition of a 15-year mandatory minimum sentence. Because defense counsel did not object on these grounds at the trial court, the Second Circuit’s review was limited to plain error. The Court’s use of a summary order suggests it viewed this case as routine, but the decision gives a rare win to a criminal defendant under the stringent plain error standard.
The facts are straightforward: Karim Golding was sentenced to a statutory mandatory minimum term of 10 years for discharge of a firearm in relation to narcotics trafficking under 18 U.S.C. § 924(c)(1)(A)(iii), as well as a 5-year mandatory minimum term for narcotics trafficking. The district court had instructed the jury to return a guilty verdict if it found that Golding “used,” “carried,” or “possessed” a firearm, but did not instruct the jury that it needed to find that Golding “fired or even attempted to fire the firearm.” Thus, the jury never found that Golding “discharged” the firearm, violating the rule of Alleyne v. United States that “any fact that increases the mandatory minimum is an ‘element’ that must be submitted to the jury. 133 S. Ct. 2151, 2155 (2013). The Second Circuit had no trouble finding that the sentence was clearly contrary to the law at the time of the appeal. Further, given the district court’s comment that “if I did not have to do it, I would not impose this sentence, I would impose a lesser sentence,” the Second Circuit concluded that error in calculating the mandatory minimum affected Golding’s substantial rights and seriously affected the fairness and integrity of the proceedings.
While the application of Alleyne was unexceptional, the Court also rejected the government’s argument that the evidence at trial that Golding discharged a firearm was “overwhelming.” In support of its finding, the Court noted that (1) Golding’s first trial ended in a mistrial, (2) the evidence in support of a discharge of the firearm was circumstantial and depended on witnesses whose credibility was attacked by the defense. Because the jury could have reasonably found these witnesses not credible as to the discharge of the weapon (even, perhaps, if the jury believed them on other points), the Court refused to find the evidence “overwhelming” or “uncontroverted” and sent Golding’s case back to the district court for resentencing.
Although reversal by summary order is still the exception not the rule in the Circuit, Golding and several other recent orders do indicate that this practice is more common than it was 15 or 20 years ago. Here, a published opinion would have served two purposes. First, Alleyne is a recent decision that overruled the Supreme Court’s prior decision in Harris v. United States, 536 U.S. 545 (2002), and extended the rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), to cases in which a fact is needed to set a mandatory minimum sentence. Published decisions finding plain error based on an Alleyne violation are rare, and litigants would benefit from additional decisional law applying this important Supreme Court precedent. Second, any decision involving a reversal based on plain error is itself a sufficiently noteworthy event to merit a published opinion. Here, the Court assessed the trial evidence in a way that suggested real skepticism about the government’s case.
-By Stephanie Teplin and Harry Sandick