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7th Circuit criticizes, but follows binding precedents

The 7th Circuit has reluctantly upheld a 20-year mandatory minimum sentence for distributing drugs.

But it made a strong case that the precedents requiring it to do so are no longer valid law.

After Jennifer Curry overdosed in 2005, Jennifer Lynn Krieger was charged in federal court with distributing fentanyl, with death resulting.

The indictment was later amended, to drop the enhancement for causing death, because the medical examiner fled the country as a result of his own legal troubles.

With the enhancement dropped, Krieger pleaded guilty to distributing fentanyl, a charge that permits a sentence of anywhere from 0 to 20 years.

The pre-sentence report recommended a sentence of only 10 to 16 months.

At sentencing, however, the district court found, by a preponderance of the evidence, that Krieger did cause Curry’s death. The court then imposed the 20-year mandatory minimum provided in 21 U.S.C. 841(b)(1)(C).

But the court said that, if it could legally impose a lower sentence, it would do so.

Krieger appealed, but on Dec. 7, the 7th Circuit affirmed in an opinion by Judge Ilana Diamond Rovner.

The court held that it lacked authority to permit a lower sentence.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the U.S. Supreme Court held that any fact which increases a defendant’s maximum penalty must be proven to a jury beyond a reasonable doubt.

However, in Harris v. U.S., 536 U.S. 545, 557 (2002), the Supreme Court declined to extend the reasoning in Apprendi to any fact that triggers a mandatory minimum. The court reaffirmed the validity of pre-Apprendi case law holding that a statute can increase a minimum penalty when a fact is found by a judge using only a preponderance of the evidence standard, McMillan v Pennsylvania, 477 U.S. 79, 91 (1986).

The 7th Circuit concluded that it was bound by Harris to affirm Krieger’s sentence.

But it proceeded to make the case that Harris was wrongly decided, quoting Justice Stevens’ recent pronouncement in U.S. v. O’Brien, 130 S.Ct. 2169, 2182 (2010): “Not only was McMillan wrong the day it was decided, but its reasoning has been substantially undermined – if not eviscerated – by the development of our Sixth Amendment jurisprudence in more recent years.”

The court engaged in a lengthy discussion of whether Harris was correctly decided, and noted that five justices on the court when Harris was decided actually expressed the view that McMillan could not survive Apprendi.

Although Justice Stephen Breyer voted with the majority, which reaffirmed the validity of McMillan, he wrote a separate concurrence saying he did so only because he maintained his disagreement with the entire premise of Apprendi.

In a footnote, the court added that Justice Breyer’s opposition to Apprendi appears to be waning. During oral arguments in O’Brien, Breyer remarked, “Well, at some point I guess I have to accept Apprendi, because it’s the law and has been for some time.”

The court then expressed its agreement with those justices who have declared that, logically, the reasoning in McMillan cannot survive Apprendi.

Nevertheless, it added, “McMillan, however, has not been overruled. And unless and until the Supreme Court explicitly overrules a case, we are bound by it. 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 (citation omitted).”

Finding that the evidence presented at the sentencing hearing was sufficient for the district court to find that death resulted from the crime, the court affirmed the sentence.

David Ziemer can be reached at david.ziemer@wislawjournal.com.

What the court held

Case: U.S. v. Krieger, No. 09-1333

Issues: Is the victim’s death a fact which much be proved to a jury beyond a reasonable doubt, if the fact triggers a mandatory minimum sentence?

Holdings: No. Binding case law holding to the contrary must be followed until the Supreme Court expressly overrules it.

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