Wednesday, October 10, 2012

Supreme Court may be ready to overrule 6th Circuit and itself

In Harris v. United States, the Supreme Court held that increases to a mandatory minimum sentence (unlike increases to the statutory maximum) do not require the constitutional protections of Apprendi.  That is, the government can bypass indictment, jury trial, and the beyond a reasonable doubt standard for facts which merely increase a defendant’s mandatory minimum sentence.  But the fifth vote necessary for this result was provided by Justice Breyer, who only voted that way because he did not believe Apprendi was correctly decided.  At oral argument in United States v. O’Brien, Justice Breyer indicated that he now does accept Apprendi and might now vote in favor of overturning Harris.

Earlier this year in United States v. Dotson, the Sixth Circuit upheld Harris against a challenge that it should be overturned.  Dotson petitioned for cert. arguing that Harris and the Sixth Circuit decision in Dotson’s case should be overruled.  Finally last Friday, the Supreme Court granted cert. on an identical issue in Alleyne v. United States, and requested that the government respond to the cert. petition in Dotson’s case.  The results of the Supreme Court’s decision in Alleyne and Dotson could be huge for criminal defendants, especially those charged under 18 U.S.C. § 924(c).  So, stay tuned, be on the look out for a decision in Alleyne and Dotson, and preserve the issue if you have any clients facing an increase in their mandatory minimum sentence (such as a brandishing enhancement under 18 U.S.C. § 924(c)).

Disclosure:  The undersigned attorney was involved in the preparation of the cert. petition in Dotson.

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