Right to jury
A fact that triggers a mandatory minimum can be found by the judge by a preponderance of the evidence, rather than proven beyond a reasonable doubt.
“Logically, there is no reason why this simple binary rule should not also apply to mandatory minimums. Whether labeled an element or a sentencing factor, if a fact triggers a mandatory minimum, the expected punishment will have increased and the government can require the judge to impose a higher punishment than she might have chosen otherwise. See Apprendi, 530 U.S. at 521-22 (Thomas, J., dissenting).”
“In this respect, it is difficult to reconcile McMillan with Apprendi. McMillan, however, has not been overruled. And unless and until the Supreme Court explicitly overrules a case, we are bound by it. See Saban v. U.S. Dept. of Labor, 509 F.3d 376, 378 (7th Cir. 2007). We are thus obligated to follow the conclusion that increases in the mandatory minimum need not be pleaded in the indictment and proved to a jury-even when a fact increases the minimum so far that the minimum and maximum collide and leave the court with no discretion whatsoever. This case well demonstrates what happens when the principles of McMillan are pushed to their extreme.”
09-1333 U.S. v. Krieger
Appeal from the United States District Court for the Southern District of Illinois, Gilbert, J., Rovner, J.