ALLEYNE v. UNITED STATES

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ORAL ARGUMENT OF MARY E. MAGUIRE ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We'll hear argument first this morning in Case 11-9335, Alleyne v. United States.

Ms. Maguire.

Mary E. Maguire: Mr. Chief Justice, and may it please the Court:

This case is about who gets to decide the facts that trigger a mandatory minimum sentence.

Any fact that entitles a prosecution by law to a sentence more severe than a judge could otherwise impose must be found by the jury beyond a reasonable doubt.

Under Harris, the government is entitled--

Justice Sonia Sotomayor: Counsel, could you address an issue that's very important to me, the one of stare decisis.

And so, that -- hone in on that.

Mary E. Maguire: --Yes, Justice Sotomayor.

I do not believe that stare decisis poses a problem for the Court in this case, because Harris was a plurality opinion.

And while four of the justices found that -- I'm sorry, five of the justices voted to uphold McMillan, only four of the justices found that McMillan was consistent with Apprendi.

And so we have a plurality opinion, and for our constitutional issue, we do not believe that Harris--

Justice Sonia Sotomayor: Well, the problem is, whether you're right or wrong -- and you're absolutely right, it was a plurality opinion -- your adversary says States have passed laws relying on it, the Federal system is now structured around it, why isn't the damage as great as they claim?

Potential damage, I should say.

Mary E. Maguire: --Well, first of all, I would just note that even though McMillan was decided in 1986, there is nothing in the legislative history that indicates that Congress referred on McMillan when it passed 924(c).

In addition, 924(c) is silent as to who should be the fact-finder that triggers the mandatory minimum.

And finally, in the McMillan case, that was not really a Sixth Amendment case--

Justice Sonia Sotomayor: Address, please, the practical consequences.

Mary E. Maguire: --Certainly.

Justice Sonia Sotomayor: How many -- how many Federal courts are you aware are already charging the 924(c) facts to a jury, notwithstanding the -- the fact that it's not required?

Mary E. Maguire: Yes, I would say that there is little to no practical effect if the Court is to adopt a rule, because the majority of the Federal courts are already -- and Federal prosecutors are already -- alleging these facts in the indictment and proving them to a jury beyond a reasonable doubt.

And I think that this case is the exact example of that.

It was alleged in the indictment.

It went to the jury, the jury got a special verdict form, so there is no difficulty in implementing this rule--

Justice Samuel Alito: Isn't your position that a decision of this Court is not entitled to stare decisis protection if there isn't a majority opinion in that case?

Mary E. Maguire: --Yes, Your Honor.

I do not believe that Harris has precedential value, because it is a plurality opinion.

In our--

Justice Samuel Alito: I can think of some pretty important decisions of this Court that were not the result of a majority opinion.

Do you want us to adopt that as a blanket rule?

Mary E. Maguire: --No, Your Honor, but I would note that in constitutional questions like this one, stare decisis is at its weakness -- weakest.

I would also--

Justice Samuel Alito: All right.

Constitutional decisions of this Court not decided with the majority opinion, no stare decisis effect.

That's your argument?

Mary E. Maguire: --Well, and also, Your Honor, what I think is significant in this case in terms of the issue of stare decisis is that McMillan was not a Sixth Amendment case.

McMillan was decided more on due process grounds.

And the only discussion of the Sixth Amendment in McMillan comes in the last paragraph, when it talks of the fact that the defendant has no right to jury sentencing.

And so for those reasons, we do not believe that stare decisis poses a problem.

Justice Antonin Scalia: You haven't distinguished McMillan.

You've distinguished Harris.

How do you distinguish McMillan?

Your only grounds for distinguishing that is it was not a Sixth Amendment case, even though the opinion refers to the Sixth Amendment?

Mary E. Maguire: Well, Your Honor, it does in fact refer to the Sixth Amendment in the very last paragraph.

But what McMillan was mostly concerned about was a due process claim--

Justice Antonin Scalia: I don't care about “ mostly ”.

The issue is whether McMillan was a Sixth Amendment case, in part or in whole.

And I don't know how you can say it wasn't.

We -- we don't decide cases on what a case mostly says.

We decide on what it says.

Mary E. Maguire: --That's absolutely--

Justice Ruth Bader Ginsburg: Ms. Maguire, you don't -- you don't have to take the position that there's no stare decisis effect.

In a unanimous -- and a recent unanimous decision of this Court, obviously, would carry more weight than one that has a plurality opinion, so you don't have to say -- it isn't a question of yes or no, it's a question of the degrees of respect that we would give to our former decision.

Mary E. Maguire: --I think that that is exactly right, Justice Ginsburg.

And in fact the other factors that the Court considers when looking at stare decisis is: What were the margins of vote on the previous cases, and McMillan was decided on a 5-4 decision, whereas Harris, as we've noted, was a plurality decision.

Both opinions were found over spirited dissents.

They have been criticized by this Court and the lower courts, and in all of those instances we believe that stare decisis is at its weakest.

Justice Samuel Alito: Well, I think it's important for this Court to have a consistent doctrine of stare decisis.

The doctrine can't be We will overrule decisions that we don't like, but we will stick with decisions that the majority does like.

So I'm still looking for your understanding of what stare decisis means in constitutional cases.

Now, with the suggestion of Justice Ginsburg, I gather that your position is if it's a narrow decision then it's -- stare decisis has less weight; is that it?

Now, what other factors?

So it has less weight.

Why isn't it controlling, though?

Why does it have insufficient weight here?

Mary E. Maguire: Because, Justice Alito, another thing that you look to when you are considering stare decisis is whether or not the rule is workable, whether or not the prior decision was badly reasoned, and those are other factors that the Court can consider.

And if you look at this Court's Sixth Amendment jurisprudence as it has developed since Apprendi, then in Booker, then in Blakely, then in Cunningham, what we are asking for today is a logical--

Justice Elena Kagan: But why is this not workable?

I mean, you can -- you can argue about whether it was right or wrong.

You can argue about whether it has created some incongruity in the system.

But haven't the last number of years suggested that it's perfectly workable?

Everybody knows what they are supposed to do, everybody does it.

Why -- why is this not workable?

Mary E. Maguire: --Well, the Harris rule is not workable on a practical level because what happens under the Harris rule is the government is entitled to a fact that drives a more severe punishment, that never goes to the jury.

And what we are asking here is that the court find that where there is a fact that triggers a mandatory minimum, that that fact be found by the jury.

Justice Sonia Sotomayor: Can I say--

Chief Justice John G. Roberts: That sounds like -- that sounds like an argument that it's wrong and that is, of course, the first step in the stare decisis analysis.

It doesn't sound to me responsive to Justice Kagan's question as in what sense is it unworkable.

Mary E. Maguire: Well, I think it becomes unworkable in the drug cases, Your Honor, and in the 9841 statute, because what you have there is you have in some circuits people alleging drug weight, but in other circuits you have what is called mixing and matching.

And as long as the statutory maximum does not exceed 20 years, the prosecutors are not alleging the drug weights in the indictment.

And that becomes unworkable and quite confusing to the courts.

And the lower courts have criticized the Harris rule primarily in cases like Krieger and others that we -- are cited in our amicus brief, that the rule is somewhat unworkable.

Justice Antonin Scalia: Why wouldn't that be a problem if the question had to be decided by the jury?

Why does -- why does requiring it to be decided by the jury eliminate that problem of the mixing or not mixing?

Mary E. Maguire: Well, asking it to be found by a jury solves the problem because it allows the fact to go to the jury, the jury finds it, and we have a long history in this country that jury verdicts drive punishment.

And so the idea is that the punishment that somebody is open to should be driven by the jury verdict.

Justice Ruth Bader Ginsburg: You mentioned drug weight.

Let's -- so you're making -- your argument would mean that drug weight also has to be found by the jury, because that can -- the length of the sentence can depend on the -- the drug weight.

Mary E. Maguire: If the drug weight is going to trigger a mandatory minimum, Your Honor, yes, we would say that under our rule that that would have to be alleged in the indictment and proved to the jury beyond a reasonable doubt, which, as our amicus briefs point out, is being done already in the majority of circuits throughout the country.

And so this is not going to put any additional burden on the prosecutors to be doing this, and fundamentally what it does is that it levels the playing field, because what it does in trial situations is it allows a defendant to know exactly what it is that the government is going to prove.

The government then has to bring in those witnesses at the time of trial so that they can be cross-examined on this fact that is going to trigger the mandatory minimum in their case, and so it helps level the playing field in that regard.

Justice Samuel Alito: Now, if you were defending a case involving drug weight and your client maintained that he or she had nothing to do with these drugs, how would you proceed?

Your argument would be: They're not my drugs, but if they were my drugs, they weren't -- they didn't weigh more than one kilo.

Mary E. Maguire: Well, Justice Alito, those are strategical questions that come up in every trial case that we have.

And you have to decide as a trial lawyer what your theory of the defense is going to be.

It's simply going to be, I wasn't there, or you may decide to challenge the drug weight.

But those -- those strategic decisions exist whether or not the Court adopts this rule or doesn't adopt the rule.

Justice Anthony Kennedy: But the question was, what -- what strategic decision do you think the lawyer should make?

Mary E. Maguire: Well, any strategic decision a lawyer makes is going to depend on the individual facts of the case.

For example--

Justice Anthony Kennedy: So you -- but Justice Alito has a real problem.

What -- don't you put the defense in a very difficult position?

Mary E. Maguire: --You don't put the defense in a very difficult position, because in fact if you adopt our rule we believe that you are protecting the defendant's Sixth Amendment right to a jury because this is a fact that is going to be triggering a mandatory minimum.

And if the government has to prove it, they then have to bring in the witness to the trial, who is then subject to cross-examination, which is a far more--

Justice Anthony Kennedy: But isn't it difficult for you to say he had nothing to do with the drugs plus the drugs didn't weigh more than a certain amount?

Mary E. Maguire: --I don't believe that that is difficult, and I believe that those are decisions that you make in every case.

For example, in the case -- in this case, in Mr. Alleyne's case--

Justice Anthony Kennedy: I think that I am hearing that in every case you are going to want witnesses, you are going to insist on a jury determination of the amount.

That's kind of what I'm hearing.

Mary E. Maguire: --That is the rule, Justice Kennedy, that we are asking the Court to adopt, that if there's a fact--

Justice Anthony Kennedy: Justice Alito says why doesn't that put defense counsel in a very difficult position?

Mary E. Maguire: --Well, it doesn't put defense counsel in a difficult position at all, because those are the same decisions that you make whether or not you adopt this rule or you don't adopt this rule.

Justice Anthony Kennedy: Well, we're not getting far with this.

But one answer you could say is that in order to preserve the constitutional right you want us to have a bifurcated trial.

I thought you might say that.

Mary E. Maguire: No, we are not -- we are not asking for a bifurcated trial.

We are just asking that if there's--

Justice Anthony Kennedy: That's good, because that's an extra problem.

[Laughter]

Justice Elena Kagan: Ms. Maguire, could I take you to a different kind of question?

Mary E. Maguire: --Certainly.

Justice Elena Kagan: Let's assume that there were a statute and it said carrying a gun is an offense and that the range is 5 to 10 years.

I realize it goes up further in the real word, but let's just say 5 to 10 years.

And Congress said in setting the penalty within that range the judge shall consider whether the defendant brandished the gun and whether the defendant discharged the gun.

Now -- and that's all the statute said.

That would be constitutional, is that not right?

Mary E. Maguire: Yes, Justice Kagan, that would be constitutional, because it doesn't have the mandatory effect.

Justice Elena Kagan: Okay.

So it's constitutional for the judge to say, 7 years because you brandished, 9 years because you discharged.

So what makes it unconstitutional, what makes it a violation of the Sixth Amendment, when now Congress just provides something extra in the statute?

It says, not just you shall consider brandishing and discharging, but if you find brandishing you get 7, if you find discharging, you get 9.

Mary E. Maguire: Okay.

What makes that unconstitutional is because you are stripping the judge of all authority, and by operation of law you are telling that judge that, you must impose this sentence.

Justice Elena Kagan: Well, that seems right as a definitional matter, as a descriptive matter.

But I guess the question I'm having difficulty with is why does that matter for purposes of the Sixth Amendment?

The jury is doing the exact same thing, which is the jury isn't doing anything in either of my examples.

So the only difference between example number one, which you said was constitutional, and example number two is that now Congress is giving further instruction to the judge, but nothing more is being taken away from the jury, is it?

Mary E. Maguire: Well, yes, it is, because in your second hypothetical where it is the mandatory minimum, which is exactly what we have in this case, this notion that somehow Congress is channelling discretion is a fiction, because what it does is it tells the judge, you must impose 7 years and you cannot even consider what is authorized by the jury verdict in this case.

And the jury verdict in this case authorized a range of 5 years as the bottom.

And so what happens is when you have Congress coming in and saying that if you find this fact on a mere preponderance standard you must impose 7 years, then you are stripping the defendant of the benefit of the full jury verdict in this case, which authorized a range that had a lower floor than that called for by the Federal statute.

Justice Antonin Scalia: Ms. Maguire, could you repeat the first sentence you uttered in this argument?

I hesitated to jump in so early, but could you repeat it verbatim?

Maybe you had committed it to memory.

Good -- good counsel often does that.

Mary E. Maguire: Thank you, Justice Scalia.

My very first sentence was: This case is about who gets to decide the facts that trigger a mandatory minimum sentence.

Justice Antonin Scalia: No, that wasn't it.

[Laughter]

Chief Justice John G. Roberts: It started “ Mr. Chief Justice ”.

[Laughter]

Justice Antonin Scalia: I think what you said was: Who has to decide a fact which causes a defendant to be subject to a penalty that he would not otherwise be subject to?

And the fact is that in the case of a mandatory minimum the defendant could have been given that mandatory minimum.

It was up to the judge.

So this mandatory minimum does not increase the penalty to which the defendant is subject.

He's subject in Justice Kagan's example to any penalty between 1 years -- 1 year and 10.

The judge, even without the statute that she mentioned, could have given him 7 years because he brandished a gun.

There is really no -- no increase in the penalty to which he is exposed.

And I thought that is what Apprendi addressed, any increase in the penalty to which you are exposed, so that when you decide, I'm going to rob a bank, you know, when you go in, you are going to get between 1 and 10 years, and with a mandatory minimum you get between 1 and 10 years.

So what's the complaint as far as Apprendi is concerned?

Mary E. Maguire: The complaint is that -- and why we believe that the rule we are asking the Court to adopt, Justice Scalia, is a natural -- it follows the logic of Apprendi, is because in both cases you have judicial factfinding that's leading to a more harsh sentence.

In your--

Justice Antonin Scalia: It isn't leading to a more harsh -- more harsh sentence.

That's the whole point of Apprendi: Does it lead to a sentence which is greater than the judge would otherwise be authorized to impose?

And in the case of a mandatory minimum, it never is.

The judge could impose that if he was a hanging judge.

You know, you have some hanging judges; you have some bleeding heart judges.

And -- and what a mandatory minimum simply says is, you know, we don't care what kind of a judge you are, at least this much.

But it doesn't expose the defendant to any greater penalty.

He's -- he's at risk between 1 and 10 years.

Mary E. Maguire: --Well, and I think, Justice Scalia, that's -- that's a false presumption.

And I think that's the position of the government, that somehow mandatory minimums channel discretion within a range.

That is a fiction because the judge is being told, You must impose this.

You have no choice.

You cannot go below this.

That is the whole nature of a mandatory minimum, and so this--

Justice Sonia Sotomayor: --Do you have any statistics on at least 924(c) of how often the greater is the sentence than the absolute minimum required by law?

Mary E. Maguire: --Well, Justice Sotomayor, this Court found in O'Brien, and I think that it's also cited in the Lucas briefs and Dorsey briefs that this Court is holding, that the majority of all defendants convicted under 924(c) are, in fact, sentenced at the mandatory minimum.

Justice Sonia Sotomayor: So, in effect, your argument is that fixing a sentence is different than giving a judge discretion because it ignores the fact that a judge might have given you less?

Mary E. Maguire: That is exactly right.

Justice Antonin Scalia: That seems to me--

Justice Sonia Sotomayor: So it's depriving you of the constitutional right to have a jury decide what your sentence could be?

Mary E. Maguire: That is exactly right.

Justice Sonia Sotomayor: Of having a judge decide what your sentence could be?

Mary E. Maguire: That is exactly right, and it's further depriving you -- it is depriving the defendant of liberty interests.

It is imposing a stigma, and it is entitling the prosecutor to a greater and more severe punishment.

Chief Justice John G. Roberts: I'm not sure that that's -- you've emphasized several times that it takes away the discretion of the judge.

That seems to me to be a matter between Congress and the Judiciary and not a Sixth Amendment question.

Mary E. Maguire: Well, Mr. Chief Justice, actually the language of this Court in Apprendi said that

"It is unconstitutional for the legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. "

And that is exactly what's happening in this context because--

Justice Elena Kagan: Well, Apprendi goes both ways.

I mean, that's the best sentence for you in Apprendi, but there are other sentences in Apprendi which more go towards what Justice Scalia suggested, that the question was increasing it above the maximum that the jury authorized.

So I'm not sure that we can get from the language of Apprendi -- and I guess the question is as a matter of principle.

I completely understand why a defendant would care about this.

The question is, does it -- does it create a Sixth Amendment violation, which is, you know, the jury has to do this, when -- when Congress is decreasing the judge's discretion, but it's -- either way the jury isn't deciding this.

Mary E. Maguire: --Well, Justice Kagan, we do believe the Sixth Amendment is implicated because we think the history of the Sixth Amendment in this country shows that the role of the jury is the buffer between the citizen meant to protect and the government.

And mandatory minimums give the prosecution far much power and, in fact, if you do not adopt our rule and -- and make the government have to prove it beyond a reasonable doubt, what happens is then the average citizen does not get the benefit of a jury verdict and his sentence is not driven wholly by the jury verdict, because in this case we had a jury verdict, the government alleged the fact, we had a special verdict form, and the jury failed to find that fact.

As a result of that, then, the range that Mr. Alleyne should have been exposed was a 5-year mandatory minimum and for the constitutional argument assuming a maximum of life.

Here what happened, then, at the sentencing hearing was on a mere preponderance the judge had to impose seven.

And so we believe that is where you have the Sixth Amendment problem, because the defendant--

Justice Antonin Scalia: --You quoted Apprendi correctly as saying that the jury has to decide any fact which increases the sentence to which the defendant is exposed.

That's the language you quoted, and it's accurate.

Why does a mandatory minimum increase the sentence to which the defendant is exposed?

He could get the mandatory minimum sentence, even if there were no mandatory minimum prescribed.

He is exposed to a sentence of 1 to 10 years.

A mandatory minimum says, You must impose 7 years if he brandishes.

But the sentence to which he is exposed is 1 to 10 years.

And the mandatory minimum does not change that at all.

He is at risk for 1 to 10 years.

Mary E. Maguire: --Well, I understand that that may not change the exposure.

What it does on a practical level is it prevents the judge from even considering anything less than the 7 years.

Justice Antonin Scalia: That's true.

Mary E. Maguire: And that becomes the problem.

Justice Antonin Scalia: That's true, but you must acknowledge that that's not the theory of Apprendi.

Mary E. Maguire: Well, I think the theory of Apprendi if you -- if you take it out to its logical step is that if you have judicial fact finding that is resulting in a more harsh sentence being imposed, then, in fact, you have a Sixth Amendment problem.

And so what happens on a mandatory minimum is that if a judge finds the mandatory minimum a more harsh sentence is being imposed, because as an example in this case, the judge could not even consider giving the 5-year year floor as a mandatory minimum, which we've already noted is, in fact, how most criminal defendants are sentenced under the 924(c) statute at the mandatory minimum level.

Justice Antonin Scalia: I think the logic of Apprendi is that the jury has to decide it if it increases the sentence to which the defendant is exposed, not if it eliminates some discretion of the Court.

He's exposed.

Justice Sonia Sotomayor: How about Booker?

What did Booker do--

Mary E. Maguire: Well, I think--

Justice Sonia Sotomayor: --to the logic of Apprendi?

Mary E. Maguire: --Justice Sotomayor, what I believe that Booker did is that Booker indicated that when you have a fact that drives -- a finding of fact that drives a mandatory sentence to be imposed, that obviously that was the Sixth Amendment problem.

Now, I understand and appreciate--

Justice Sonia Sotomayor: Even when the statutes had a higher maximum.

Mary E. Maguire: --That is correct, Your Honor.

Justice Sonia Sotomayor: Because the jury was -- because the judge was constrained within a different maximum.

Mary E. Maguire: That is correct, Your Honor.

Justice Sonia Sotomayor: Is that your argument here?

Mary E. Maguire: Yes.

And so what I believe is that what Booker indicates is that it is this mandatory effect which may -- and that is why this Court found, extending Apprendi in the Booker case, that in fact the guidelines then had to become advisory.

It is the mandatory effect of the fact finding that is essential in these cases.

Justice Antonin Scalia: It wasn't a mandatory minimum case, Booker was a case in which the maximum was increased on the basis of judge finding of fact.

The maximum was increased.

So under the situation in Booker, the -- the exposure of the defendant was indeed increased on the basis of judge fact finding.

Instead of 1 to 10, the statute in Booker said, If you brandish a gun, you can get 15.

That's a -- that's a quite different situation from saying, Yeah, you are still on the hook for 1 to 10, but if you brandish, you got to get 7.

Mary E. Maguire: Well, Justice Scalia, I think the concern in Booker was the mandatory nature of the guidelines, and while I would agree with you that this Court in its constitutional part of the Booker decision did, in fact, look to the increase in the maximums, it is the same problem.

You have judge -- judicial fact finding that is mandating a particular sentence.

Justice Samuel Alito: Why is Booker -- why is Booker entitled to greater stare decisis weight than Harris and McMillan?

Mary E. Maguire: Well, I believe that Booker is -- is entitled to greater weight because it was more recently decided by this Court, and I also believe that it is a more recent interpretation of this Court of the principles held in Apprendi.

I would like to reserve the remainder of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Dreeben?

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Michael R. Dreeben: Mr. Chief Justice, and may it please the Court:

This Court should adhere to its decision in Harris v. United States, which reaffirmed McMillan v. Pennsylvania, because those decisions properly respected the fact that a mandatory minimum divests the defendant of the right to judicial leniency.

Justice Sonia Sotomayor: Could I go back to a simple question on the stare decisis, the practicality question.

What is so impractical about letting a jury decide an issue that sets a mandatory sentence of any kind?

Why -- why are juries incapable of figuring out whether a gun was carried or brandished?

Why are they incapable of figuring out how many -- how much drugs were sold or whether someone was driven by any of the factors that States want to commit to judges, but the Sixth Amendment might require them to submit to juries?

Michael R. Dreeben: Justice Sotomayor, the government's argument here is not that juries are incapable of finding facts under the Federal statutes that involve mandatory minimums.

It's that Congress has sound reasons for wishing to allocate that factfinding to the sentencing process and that it is not unconstitutional for Congress to do so.

Justice Sonia Sotomayor: But what does that have to do with the needs, the constitutional need to make sure that juries are driving a fixed sentence of any kind?

Michael R. Dreeben: The -- the constitutional question, in my view, Justice Sotomayor, turns on whether there is a right to the mercy of a tenderhearted judge.

That is what a defendant loses when a judge finds a mandatory minimum fact.

Justice Stephen G. Breyer: No, no, it isn't quite.

I mean, the -- the linguistic difference, I agree with Justice Scalia and I agree with you, it turns on the word “ exposed ”.

I mean, if you state Apprendi's holding as it was just stated, this is a different case because you could in fact, if you were the defendant, have been sentenced to that anyway.

That's your argument.

Michael R. Dreeben: Correct.

Justice Stephen G. Breyer: Now, let's put it differently.

There is a fact in the world.

There's a gun or there wasn't a gun.

In the Apprendi case, if the fact turns out to be gun, you could get 2 more years.

All right?

We have to go to the jury.

Now, here there's a fact in the world, gun or not gun.

If it turns out not gun, you get a lower sentence, you could; and if it turns out to be the fact, gun, you can't -- the judge cannot put you in that box, he has to put you in a worse box.

He has to put you in a worse box.

He has to give you more than -- more than the 3 years, 2 years or 1 year.

He has to.

Okay?

Now, from the point of view of the defendant, worse or at least as bad.

From the point of view of Congress, same.

They drew some lines, want a judge to administer them, and they turn on facts, and the sentence very often will turn on those facts.

From the point of view of the judge, same.

It's the jury decides or he decides.

In the one case, his discretion is cut off to give a lower sentence; in the other case, his discretion is granted to give a higher sentence.

Now, I see tremendous similarities, though I grant you the words are different, but can you -- can you just explain--

Michael R. Dreeben: Justice Breyer, yes.

Justice Stephen G. Breyer: --why the difference in the words should overcome the fact that I can't think of a -- of a difference other than those words that happened to be used in Apprendi?

Michael R. Dreeben: Well, Justice Breyer, we have a chart in our brief that I think is addressed explicitly to the question that you are asking, and it's on page 36 of our brief.

And it illustrates the difference between an Apprendi situation and a Harris-McMillan situation.

So the government's gray brief.

And the point of the chart is this--

Justice Antonin Scalia: What page?

What page?

Michael R. Dreeben: --This is page 36 of the government's brief.

Justice Stephen G. Breyer: I'm afraid the other side was upside down and I saw what you meant.

Michael R. Dreeben: Okay.

The point of Apprendi is a jury cannot be reduced to low-level gatekeeping.

Congress cannot pass a statute that says it is a crime to assault someone and that's punishable by 1 year in prison, but if the crime involves rape then it's punishable by 10 years in prison, or if the crime involves attempted murder then it's punishable by up to life.

Congress can't do that, because it would diminish the role of the jury in finding the critical facts that constitute the crime that sets the defendant's maximum exposure.

Apprendi protects against that.

In a Harris situation, the defendant is already exposed to the maximum penalty that the defendant incurs under the statute, and that's what the second column illustrates.

The defendant who commits a section 924(c) crime knows that the defendant faces up to life in prison.

When the mandatory minimum comes along, it doesn't increase the defendant's exposure to the most severe punishment he can get; it divests the defendant of a degree of judicial discretion.

But the Sixth Amendment does not protect a right to judicial discretion.

Justice Sonia Sotomayor: You know, but that--

Justice Stephen G. Breyer: But--

Justice Sonia Sotomayor: --I'm sorry.

Justice Stephen G. Breyer: --That's the -- that's the -- you've used all the words, which do make the difference in your mind.

But my question--

Michael R. Dreeben: It's not just in my mind, Justice--

Justice Stephen G. Breyer: --is why should those words make a difference?

Look, in the one case, I'll be repeating myself, but I want you to see it, in the one case, presence of a fact or not means the defendant goes into a higher sentencing box.

And the other case, presence of a fact or not means that he cannot go into the low sentencing box.

Michael R. Dreeben: --And when he cannot--

Justice Stephen G. Breyer: In the one case, he cannot go into the low sentencing box; in the other case, he can't go into the high sentencing box.

I got that difference.

My only problem is, why does it make a difference?

Michael R. Dreeben: --It matters because the Sixth Amendment protects a right to a jury trial, it does not protect a right to judicial leniency.

Justice Stephen G. Breyer: No, it's not -- well, you can call it judicial leniency, but you could call the other judicial harshness.

I mean, what is in fact turning out--

Michael R. Dreeben: No, because in -- in the other situation, it protects the right of the jury to determine the ingredients of the crime that Congress has determined exposed the defendant--

Justice Stephen G. Breyer: --And here we have the ingredients of a crime that Congress has determined that you have to get the 5 years.

Michael R. Dreeben: --Well, we know--

Justice Stephen G. Breyer: I mean, in the one case you can say all that Apprendi did -- it never should have been decided; I mean, some of us thought that -- because in fact--

Justice Antonin Scalia: I wonder who that could have been.

[Laughter]

Justice Stephen G. Breyer: --all you're talking about there is that you are stopping the judge from exhibiting his otherwise discretion towards harshness, and that's a matter for judges.

I've heard all these arguments before, you see.

Michael R. Dreeben: --Well--

Justice Stephen G. Breyer: And I've just heard them in the context of harshness, and now I don't know why changing it to leniency makes them somehow more relevant.

They weren't apparently relevant in the first situation, so why are they relevant in this one?

Michael R. Dreeben: --They weren't relevant in the first situation, because if there is no cap from the maximum that a judge could impose based on judicial factfinding, the role of a jury can be shrunk to what the Court has called low-level gatekeeping.

That can never happen under a statute that increases only the mandatory minimum.

Justice Elena Kagan: Well, you said, Mr. Dreeben, and -- and I think it's -- it's a great question: Is the jury functioning as a low level gatekeeper under the Harris rule?

Because I could make the argument that in fact it is.

You know, you take a statute and it says, 5 and up for carrying, and 7 and up for brandishing, right?

And this isn't even a hypothetical.

This is pretty close to this case.

It goes to the jury, the jury says we think he was carrying, we do not think that he was brandishing, all right?

And then it goes to the judge.

And now the judge says, you know what, if I had my druthers, I would only give 5 years.

If I had my druthers, I absolutely would defer to the jury verdict, but I can't defer to the jury verdict because Congress has said I have to make this special factfinding, and the truth of the matter is I think he did brandish, and so I have to give 7 years.

So the judge is not deferring to the jury, and he's not deferring to the jury when he would prefer to do so.

I guess the question is: Isn't that in every practical sense -- doesn't the mandatory minimum effectively increase the maximum punishment that the -- that the defendant otherwise would get?

Michael R. Dreeben: Well, it certainly doesn't increase the maximum punishment that's authorized under the statute, and it doesn't prevent the judge from making the exact same finding by a preponderance of the evidence that the jury did not make beyond a reasonable doubt, and giving 7 years even if there were no mandatory minimums.

Justice Elena Kagan: Yes, but what I'm suggesting is that in the world of judges, you know, this -- the graph you wrote has very little difference in the Harris situation between five and seven, but in fact most judges want to give five.

I mean, that's the truth of the matter, that, you know, nobody's given a 97-year sentence.

So -- so the action in the criminal justice system is at this lower range.

And at this lower range, what the mandatory minimums do is effectively tell a judge that they cannot defer to a jury verdict.

Michael R. Dreeben: Well, it's first of all, not entirely accurate that judges do not give higher sentences than the minimum.

There are plenty of cases in which they do so.

If the 920--

Justice Ruth Bader Ginsburg: But--

Justice Elena Kagan: I know there are plenty of cases.

All I'm saying is it's not the unusual case to find ourselves in exactly this position, where the judge wants to give five, the jury wants to give five, the judge can't defer to the jury's verdict that it should be five.

Michael R. Dreeben: --But taking away judicial discretion to treat a fact within the range differently than what Congress wants doesn't infringe the jury trial right.

The jury can find facts by a -- beyond a reasonable doubt, but when the judge is at sentencing, he is not operating under that burden, so the fact finding role of the jury--

Justice Anthony Kennedy: But you could say that with reference to the -- to the maximum.

Everything you said could be applied to the maximum, and Apprendi says you can't say that.

Michael R. Dreeben: --I don't think that it's quite true that everything that I said applies to the maximum, Justice Kennedy, because as the plurality opinion in Harris explained, once the court has been confronted with a defendant who's convicted, the judge's discretion extends up to the statutory maximum.

He can't use his fact finding ability to increase the defendant's exposure to criminal punishment.

Mandatory minimums can never do that.

The defendant is already exposed to the sentence that the judge could give.

And I grant you, Justice Kagan, that some judges might choose to give a lower sentence, but the fact that they might choose to reflects judicial leniency, tenderheartedness, something that the Sixth Amendment does not speak to.

Justice Ruth Bader Ginsburg: --How about in deference to the jury's finding?

I mean, in this -- this -- this very case, wasn't it so that the judge said, I could just say 7 years because it's within the range, but it would be dishonest of me to do that, wouldn't it?

I have to say seven because it's the mandatory minimum.

I think this is a case where the effect is shown graphically, that the judge says, I'm stuck with the stuck.

I would prefer five.

That's what the jury would lead me to do, but I'm -- my hands are tied, I cannot respect the jury's finding.

Michael R. Dreeben: I think, Justice Ginsburg, that the judge said he would be intellectually honest and not ignore the fact that the -- the finding of brandishing did trigger the mandatory minimum.

He did not say, I otherwise would have given five.

And I think that this case--

Justice Antonin Scalia: But is it the usual case that a judge when faced with his decision has before him a jury finding?

I -- that--

Michael R. Dreeben: --It's not the usual case, Justice Scalia.

Justice Antonin Scalia: --The petitioner is asking these cases to be thrown out even if there has been no jury finding.

Michael R. Dreeben: Correct.

Justice Antonin Scalia: And the judge says, you know, I have to decide whether he brandished or not; I think he brandished.

But I -- you know, the petitioner here wants to say, The judge cannot consider himself bound by a mandatory minimum.

It seems to me the unusual case in which you have a jury finding that the judge must ignore in -- in -- actually he doesn't ignore it, he goes along with it.

The jury may well be right that it's impossible to prove beyond a reasonable doubt that -- that the felon brandished a gun, but it's -- it -- it's quite easy to say that it's very likely he branded a gun -- brandished a gun, which is what the judge has to find.

So he's not even ignoring the jury finding.

Michael R. Dreeben: No, there is no inconsistency between it, and I think if you look at the way this case evolves, it's not even clear that the jury rejected brandishing.

What's very interesting about this case is it's possibly the best illustration of the unfairness problem that Justice Alito alluded to and that Justice Breyer has written about in his opinions.

The issue at trial in this case was identity.

Was the defendant actually the person sitting in the car while his accomplice walked up to the victim and -- and put a revolver into his neck and asked for money?

That was the issue at trial.

There was no discussion of brandishing whatsoever.

Nobody focused on it, and it allowed the defendant, after the jury rejected his identity argument, to go to the judge and say, Even though the jury has now found that my guy did it, he could not have foreseen that a gun would have been used.

Justice Sonia Sotomayor: Mr. Dreeben, can I go back to a point you made earlier?

You talked about a legislature not attempting to supplant the jury's role on the maximum.

You don't see the same danger -- we started out in a country where almost all sentencing was in the discretion of the judge; whatever crime you committed, the judge could decide where to sentence you.

As Apprendi and its subsequent progeny laid out, these sentencing changes that have come into existence have really come into existence the latter half of the last century.

What -- don't you fear that at some point the legislature will go back to the old system of supplanting the jury by just saying what it said in 924(c)?

Every single crime has a maximum of life.

And all the -- and every single fact that's going to set a real sentence for the defendant, a minimum, we're going to let the judge decide by a preponderance of the evidence.

The bottom line of my question is, when Apprendi was decided, what should be the driving force of protecting the jury system?

The deprivation of discretion, whether that's permissible or not, or whether a sentence is fixed in a range, whatever it might be, by a jury?

Michael R. Dreeben: Justice--

Justice Sonia Sotomayor: What's the better rule to keep both extremes from happening?

Michael R. Dreeben: --I think, Justice Sotomayor, that the Court recognized in Apprendi that its role was limited and to certain extent could be evaded by legislatures if they were inclined to do so.

Justice Antonin Scalia: Mr. Dreeben, I think that history is wrong.

In fact, the way the country started, there was no judicial discretion.

There were simply fixed penalties for crimes.

If you stole a horse, you were guilty of a felony and you would be hanged.

That's where we started.

Michael R. Dreeben: Well--

Justice Antonin Scalia: And I would think that the risk involved is whether if we come out the way that the petitioner here urges us to do, legislatures will consider going back to -- to where we started from, and simply saying, If you brandish, you get 7 years, period, with no discretion in the judge.

That, it seems to me, is the greater risk.

Michael R. Dreeben: --Well, Justice Scalia, I agree in part with both you and Justice Sotomayor on history.

In fact, if you look at the 1790 Crimes Act that the First Congress passed, many of the set sentences are determinant sentences.

Others of the sentences were -- were prescribed up to a certain amount of years, and within that, it was well understood that judges would find facts to graduate the penalties according to the gravity of the crime.

And what the legislatures have done in the 20th Century innovation of mandatory minimums within an otherwise authorized range, as you have with 924(c), is say, We would prefer that judges take into account brandishing and discharging as under Justice Kagan's hypothetical statute, but we would like to -- to do that in a uniform manner.

We know that they can find by a preponderance of the evidence that brandishing exists.

We know that many, if not most, judges would consider that worse than simple possession of a firearm in a crime of violence, and we want judges to behave consistently.

By proscribing consistency, they are acting in accord with the historical tradition of having determinate sentences, a tradition that this Court held in Chapman versus--

Justice Sonia Sotomayor: I'm sorry, the historical -- you said earlier that most of the historical evidence was that determinate sentences would be decided by juries; they found facts and a determinate sentence was given.

Michael R. Dreeben: --And there was no judicial discretion, which I think makes--

Justice Sonia Sotomayor: So what is the judicial discretion now?

You find by a preponderance of the evidence, and a mandatory minimum makes you give seven.

So where is the judicial discretion?

Michael R. Dreeben: --The judicial discretion is what the defendant is losing.

He is not losing the right to a jury trial because the very same verdict authorizes the judge to find brandishing and impose 7 years.

Justice Sonia Sotomayor: You think for a defendant in a constitutional right, that they are more -- that it's constitutional to have a determinate sentence at seven, and still constitutional and make the jury find it by a -- beyond a reasonable doubt and that it's still constitutional to have a determinative sentence of 7 years but have the jury find it by a preponderance of the evidence?

Michael R. Dreeben: To have the jury find it by a preponderance of the--

Justice Sonia Sotomayor: Those are -- those are equal?

Michael R. Dreeben: --It's not just my position that it's constitutional for a -- a judge to find mandatory minimum triggering facts by a preponderance.

I'm sure that a legislature could allocate that to a jury.

Justice Sonia Sotomayor: No, I know we said it in Harris; the question here before us today is--

Michael R. Dreeben: Yes.

And I think that -- that not only does it not contradict any decision of this Court to allow the judge to make those findings, it doesn't contradict the principle behind the jury trial right or the right to proof beyond a reasonable doubt.

Justice Stephen G. Breyer: Here's another way of putting the same point: With the mandatory minimum, the judge can't go below the 5 years, okay?

But you say, Well, he could have gone below the 5 years anyway, couldn't he have?

I mean, you -- he could have given you the 5 years anyway.

Sorry, he could have given you the 5 years anyway.

That's your point.

Michael R. Dreeben: Correct.

Justice Stephen G. Breyer: All right.

He could have given you the 5 years -- he could have given you the 5 years if you'd been -- if you had been convicted of a different crime.

Michael R. Dreeben: And that's the difference between this and Apprendi.

Justice Stephen G. Breyer: But why does that make a difference?

The best way I thought of putting it is the heading on page 6 of their reply brief is almost right, I think.

It says -- it's permitting judges to find facts by a preponderance of the evidence that compels sentences higher than a set of those permitted by the jury's verdict.

That's exactly what's going on here.

Michael R. Dreeben: Well--

Justice Stephen G. Breyer: And -- and I want to know, what is it?

And the trouble is--

Michael R. Dreeben: --That's--

Justice Stephen G. Breyer: --you're just going to say, Well, he could have given the same sentence anyway.

And I'm going to say, Well, so what, why does that matter?

Michael R. Dreeben: --It's descriptively accurate, but it says nothing about the constitutionality of the procedure.

And I think that it's very important to focus not only on the fact that stare decisis is in play, but that Apprendi has been a very history-driven area of the law.

Last term, when the Court extended Apprendi to fines, it has found an ample historic basis for doing so.

In this case, by comparison, there is no historical showing that would justify extending Apprendi to fines.

Not only is there no direct analogy to a 924(c) type statute, but the three pillars of their historical argument are extremely weak and strained analogies.

The first one is simply that to get a statutory crime that was parallel to a common law crime but differed, the prosecutor had to charge all of the elements of the statutory crime in the indictment.

That says nothing about mandatory minimum sentencing.

The second pillar of their historical argument is the procedure called benefit of clergy, which was a form of what Blackstone called a statute pardon, that allowed a defendant to avoid a capital sentence.

In the First Crimes Act in Section 31 in 1790, Congress said:

"Benefit of clergy shall not exist in the United States for any crime punishable by a capital sentence. "

Benefit of clergy has never been part of this country's Sixth Amendment heritage.

It was abolished before the Sixth Amendment was even ratified.

And the third pillar of their historical argument are three late 19th Century cases: Jones, Garcia, and Lacy, each of which involve statutes that both raised the maximum and the minimum, not a single one of them spoke about the Constitution.

None of them purported to define what a legislature could do if it wanted to raise only the minimum, and that's it.

And I would suggest to the Court that this kind of Gertrude Stein history where there's really no “ there ” there, is not sufficient to overturn the legislative prerogative to make uniform the findings of fact within a range--

Justice Elena Kagan: Mr. Dreeben, could I take you back to the principles involved?

Let's suppose that instead of this statute, which is 579, you had a statute which was five for carrying, five otherwise and then for brandishing, 40.

All right?

And maybe if we did discharge, then 60.

All right.

So a very large gap.

Is your argument still the same?

Michael R. Dreeben: --The constitutional argument is the same.

I think this Court's decision in O'Brien suggests that unless the legislature were absolutely clear about it, the Court would conclude that those would be deemed elements.

Justice Elena Kagan: But suppose the legislature--

Justice Antonin Scalia: I'm sorry.

I didn't hear your last word.

Those would be?

Michael R. Dreeben: Deemed elements.

Under the decision in O'Brien, where the machine gun finding raised the minimum to 30 years, the Court held that it should be deemed to be an element, but--

Justice Elena Kagan: --Suppose -- suppose that Congress is absolutely clear about it, and you say -- and I think that you're right, you've got to be right about this -- it's a constitutional matter, it's the same, but the hypothetical sort of suggests exactly what you said our inquiry ought to be, is that in a world like that, the jury is in fact functioning only as a low level gatekeeper.

Isn't that right?

Michael R. Dreeben: --No.

Justice Elena Kagan: And that the only reason we see it in the hypothetical a little bit more clearly is because the numbers are a bit more dramatic.

Michael R. Dreeben: I wouldn't suggest that the jury is being a low level gatekeeper in that situation, because the jury's verdict alone -- and this is a serious crime -- exposes the defendant to a life sentence.

This is a crime that involves either a predicate Federal crime of violence or a Federal drug trafficking crime, plus the use of the gun in it.

And I think Congress could reasonably expect that the worse the use of the gun, the more extreme, the higher the corresponding penalty.

And indeed if a 924(c) violation is charged by itself, and a defendant is an armed career criminal, then his sentencing range goes up to 360 months to life--

Justice Elena Kagan: If it's something deeply incongruous, isn't there, where you have an Apprendi rule which says if the maximum is, you know, five to seven, and then the judge says 7 years and a day, we're going to take that out.

But as a mandatory minimum that will leapfrog you from five to 40 doesn't get the same result?

Michael R. Dreeben: --It's not incongruous if you look at it from the point of view of the fact that the jury verdict itself allows a life sentence, and if the defendant draws the proverbial hanging judge who in his discretion or her discretion wants to give that life sentence, the defendant knew from day one when he committed the crime that if the jury finds him guilty of it, he's exposed to a life sentence.

And the Court in Apprendi said structural democratic constraints will preclude legislatures, or at least discourage them, from assigning maximum sentences to crimes that are higher than what the legislature deemed--

Justice Sonia Sotomayor: --So how about in O'Brien, if the legislature had said 40 years for a machine gun.

Would we -- how do we justify saying, No, that has to remain an element?

Under your theory, the democratic process didn't work.

Michael R. Dreeben: --No, I think that--

Justice Sonia Sotomayor: So how -- what would we do in that situation?

Michael R. Dreeben: --In that situation, the democratic process would have concluded that firearms brandishing, discharge or use of a machine gun is an extremely serious component of this crime.

We know judges will take that into account in sentencing.

We simply want them to take that into account in the same particularly harsh way.

And in -- in trying to achieve uniformity among judicial actors when finding facts at sentencing, which everybody knows that they will do, does not deprive the defendant of a right to a jury trial on the elements of the crime, it deprives him of the right to a judge who might show mercy under a particular set of facts.

And that simply is not the right that's embodied in the Sixth Amendment.

Justice Stephen G. Breyer: That's -- I don't know if you can add anything to this, but remember, I agree with you about the history, but I just apply it to Apprendi, too.

So the one--

Justice Antonin Scalia: It is so bad he wants to extend it.

[Laughter]

Justice Stephen G. Breyer: --I thought -- are you sure it was Gertrude Stein and not Dorothy Barker?

But I think you're probably right about that.

But the -- the -- I'm thinking of this as well, Apprendi, I see what they're thinking.

They're thinking that once you have to add the extra fact to get above the otherwise ceiling, it's like a new crime.

It isn't really a new crime, but it's like a new crime.

Okay?

But then I can say, Well, once you have to really cut off that 5 years and less and really send him to jail for 5 years, hey, that's just like a new crime.

It isn't really a new crime, but it's like a new crime.

So why can't I say everything that we said about Apprendi here, except I can't deny what you say, the judge could have given the sentence anyway.

That's absolutely right.

But all the other things, I can say.

Is that true?

Michael R. Dreeben: Well, I agree that you can say them, Justice Breyer--

Justice Stephen G. Breyer: But I mean, are they true?

[Laughter]

Michael R. Dreeben: --Respectfully, no.

We -- the critical point about Apprendi is by assigning the role of constitutional element status to a fact that increases the maximum, the Court has preserved the jury trial right against its reduction to essentially a formality on a particular subset of elements.

And the relationship of a crime that's covered by Apprendi and the so-called base crime is like a greater included offense and a lesser included offense.

Whereas, in the mandatory minimum situation, we know that the judge will be engaged in sentencing.

We know that the judge will find facts that extend beyond the elements of the crime to inform himself about how the basic crime is committed.

We also know that different judges may treat those facts differently after finding them by the preponderance of the evidence.

The mandatory minimum changes only one thing: It says, Judge, if you find this fact, brandishing or discharge, you will impose the same sentence as your neighboring judge down the hall, not a different one based on your different perception of sentencing philosophy.

So it allows the legislature to intervene after having defined a sufficiently serious enough crime and determine how the judges will treat those facts.

Justice Sonia Sotomayor: Why is the legislature being deprived of that right, if they give it to the jury?

Michael R. Dreeben: The legislature--

Justice Sonia Sotomayor: I mean, it seems to me that whether you give it to a jury or a judge, the legislature protects itself by declaring a minimum sentence.

Michael R. Dreeben: --There are many ways--

Justice Sonia Sotomayor: It determines the sentence, really.

Michael R. Dreeben: --There are many ways that a legislature could achieve a goal that allows the judge's fact finding to carry more weight.

For one thing, it could extend the maximum punishments and convert everything into an affirmative defense, which this Court said last week is constitutional.

The point is whether the defendant has really been divested of a jury trial right when he loses the right to the mercy of a judge.

Chief Justice John G. Roberts: Thank you, Mr. Dreeben.

Ms. Maguire, you have five minutes remaining.

REBUTTAL ARGUMENT OF MARY E. MAGUIRE ON BEHALF OF THE PETITIONER

Mary E. Maguire: It is the effect of the fact finding that is important, not what it is called.

A mandatory minimum does, in fact, increase the exposure that a defendant is -- is exposed to, because his range then goes from five to life, which was wholly authorized by the jury's verdict in this case, to seven to life, and that is an increase.

And we are not talking about a right to leniency, but a right for the judge to consider the full range that the jury authorized.

And I would note the language in Apprendi did, in fact, address this issue of range when it said:

"One need only look to the kind, degree, or range of punishment to which the prosecution is by law entitled for a given set of facts. "

Thank you.

Chief Justice John G. Roberts: Thank you, counsel.

The case is submitted.