APPEAL FROM THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF MASSACHUSETTS. Hon. Douglas P. Woodlock, U.S. District Judge.
Matthew R. Segal, with whom Nashwa Gewaily, Courtney M. Hostetler, Miriam I. Mack, and American Civil Liberties Union, were on the brief, for appellant.
Jennifer Hay Zacks, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before Lynch, Chief Judge, Souter,[*] Associate Justice, and Stahl, Circuit Judge.
SOUTER, Associate Justice.
Federal law mandates a minimum ten-year prison sentence for a convicted member of a drug conspiracy responsible for more than 280 grams of crack. 21 U.S.C. § § 841(b)(1)(A)(iii); 846. So far as it matters to this appeal, the district court made a finding of drug quantity, by a preponderance of the evidence: that the admitted conspirator Ryan Morris was personally responsible for 765.5 grams of crack. The court consequently imposed the mandatory ten-year sentence. While judicial fact-finding of drug quantities sufficient by statute to trigger mandatory minimum sentences was permissible at the time of the sentencing hearing, during the pendency of Morris's appeal the Supreme Court held that the Sixth Amendment guarantees that such qualifying fact issues are subject to jury findings beyond a reasonable doubt. Alleyne v. United States, 133 S.Ct. 2151, 2160, 186 L.Ed.2d 314 (2013).
The question here is whether the minimum sentence imposed under the district court's judgment may nevertheless be affirmed as resting on harmless constitutional error falling short of affecting the defendant's substantial rights. We conclude that the error is ultimately harmless, in light of concessions made by Morris's counsel and overwhelming evidence that Morris was responsible for at least 280 grams of crack, and thus affirm.
In December 2010, after investigating the activities of a drug ring operating in Dorchester, Massachusetts, the government charged nineteen individuals, including Ryan Morris, with conspiracy to distribute more than 500 grams of cocaine and more than 280 grams of crack, as well as offenses stated in fifteen additional counts. Shortly before the indictment was returned, investigators legally searched Morris's apartment, which yielded up 123.5 grams of crack. In October 2012, Morris pleaded guilty to the conspiracy count, but he did not admit that the conspiracy collectively or he individually was responsible for a particular quantity of either form of drug, the questions of quantity being expressly left for later determination by the sentencing judge.
In advance of Morris's sentencing hearing, the probation office prepared a presentence report concluding, based on the government's investigation, that Morris himself was responsible for 10 kilograms of cocaine, and 123.5 grams of crack. Because responsibility for 5 kilograms of cocaine triggers a mandatory minimum ten-year sentence, see 21 U.S.C. § § 841(b)(1)(A)(ii), 846, the report recommended that Morris be sentenced accordingly. He objected to the conclusion about the cocaine quantity and the ensuing recommendation.
At the hearing, Morris took the stand and disputed that he had ever dealt in kilograms of cocaine. He said that he bought cocaine in quantities never greater than 62 grams, which he would cook into crack and then sell. Between direct and cross-examination, Morris admitted to four specific transactions between May and July 2010 involving 62 grams of cocaine each, for a total of 248 grams. When pressed on cross-examination to state the total number of transactions, he acknowledged more, albeit less exactly:
Q: About how many times do you think you purchased cocaine from Michael Williams [another member of the conspiracy]?
A: Probably twelve times.
Q: Twelve times?
A: Tops, probably ...