Fifth Circuit Remands Sentence for Setting a Mandatory Minimum Without Proper Jury Instructions

In United States v. Suarez, No. 16-41267, the Fifth Circuit remanded a sentence back to the District Court for failing to properly charge the jury in a case where a mandatory minimum was at issue.

Suarez was found with meth, drug-distributing items, a .380 pistol and a Winchester sawed-off shotgun that was disassembled with a round left in the chamber.  Police also found a sawed-off Ithaca shotgun in another room. Suarez was charged in Count Two with possession of the pistol and Winchester in furtherance of a drug crime under 924(c). Counts Three and Four charged him with unregistered possession of the Winchester and Ithaca shotguns. The proposed jury charge did not require the jury to specify which firearm supported guilt. Suarez did not object to this at trial. The jury found Suarez guilty and the PSI recommended 60 months on counts one, three and four and 120 months on Count Two to run consecutively to the other counts. The court indicated that it would have sentenced Suarez to a shorter term but for the ten-year mandatory minimum sentence that was applicable. (Count One was a drug conspiracy charge).

Suarez challenged his conviction to Count Two because the Court did not require the jury to unanimously determine which firearm formed the basis of the conviction. The court noted that because Suarez did not object to the instruction at trial then this would be reviewed for plain error (this means that Suarez would have to show “a clear or obvious legal error that affects his substantial rights and “seriously affect[s] the fairness, integrity, or public reputation of the judicial proceedings.”)

The court noted that Possession of a PARTICULAR type of firearm is not necessary for a 924(c)charge but IS necessary to tag someone with the 10 year minimum.  So, while this doesn’t impact his conviction, it may impact his sentence.

The court noted that for purposes of plain error,  A sentencing error is plain if it is contrary to Supreme Court or circuit precedent.  The error affects substantial rights if “there is ‘a reasonable probability that, but for the error, [the defendant] would have received a lesser sentence.’ ” [the court] may exercise [their]  discretion to remand  for resentencing if “the error ‘seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.”

The court stated that a mandatory minimum of 10 years is required if the defendant is found guilty of using a shotgun under 924(c). The court also noted that in United States v. O’Brien, the Supreme Court stated that a court couldn’t sentence someone to a mandatory minimum of thirty years unless the jury decided beyond a reasonable doubt that the firearm was a machine gun.  Moreover, in Alleyne v. United States, the court held that any fact issue that increases the mandatory minimum sentence had to be found beyond a reasonable doubt.

Overall, this means that the sentence on Count Two should not have been imposed unless the jury specifically found beyond a reasonable doubt that Suarez possessed a sawed-off shotgun in furtherance of a drug trafficking crime. Since this did not occur, one or more of the jurors could have failed to find that the Winchester was possessed in furtherance of a drug trafficking crime. That in itself is a plain sentencing error.

This error affected Suarez' substantial rights because he received a sentence that the court said they would not have imposed except for their conclusion that a mandatory sentence was required, which again, was error. And the court noted that this error affects the fairness, integrity and public reputation of the judicial process. The court noted that this was true for a few reasons.

First, the court indicated that the Supreme Court, in Alleyne concluded that when there is a core crime and a fact triggering a higher mandatory minimum, that in essence, was constituting a new aggravated crime and each element of that crime had to be submitted to the jury.  In addition, the court indicated that the facts of this case mean that the Jury would have been able to “surely” find that Suarez possessed specifically  the Winchester in furtherance of the drug trafficking offense. The Fifth Circuit also said that this was ultimately a Sixth Amendment violation, not just a sentencing error. That is because Suarez would have been imprisoned for an offense that the jury never found that he committed. The sentencing of five additional years for a crime where there was no conviction is a sixth amendment violation.

The court vacated the 10 year sentence on Count Two and remanded the case back to the District Court for resentencing.  No. 16-41267.