Does the Attorney General Mean What He Says About Sentencing Reform?

By Andrew Cohen
Attorney General Eric Holder at the annual meeting of the American Bar Association in August, when he spoke about changing policies on mandatory minimum prison sentences. (Stephen Lam/Reuters)

When the justices of the United States Supreme Court confer Friday morning to consider new cases they will have the opportunity to accept for review a dispute that tests not just the meaning of their own recent Sixth Amendment precedent but the viability of a major new policy initiative implemented this summer by the Justice Department to bring more fairness to federal sentencing while reducing the terrible costs of prison overcrowding. 

In Gomez v. United States, a Massachusetts case, the justices have been asked to determine whether they meant what they wrote about juries and drug sentences in Alleyne v. United States, decided just this past June, and at the same time whether Attorney General Eric Holder meant what he said, in August, when he promised to curb the ways in which his federal prosecutors abuse "mandatory minimum" sentences in drug cases to obtain guilty pleas (or higher sentences).

The justices should accept this case for review. And the Court should affirm the just principle that a man cannot constitutionally be sentenced based upon charges that are not brought or upon facts a jury does not even hear. But even if the justices aren't willing to muster up that level of indignation, they ought to at least take the opportunity to call out federal prosecutors for saying one thing in front of the microphones and another in court papers.

The Facts

The defendant is a man named Clarvee Gomez and his case is the story of how federal prosecutors manipulated allegations of two separate drug transactions to gain a higher sentence. The first such "deal," which never was fully consummated, occurred in Florida in September 2008. The second occurred in Lawrence, Massachusetts, in December 2008, when undercover agents saw Gomez leave a building where a drug deal had taken place.

Federal prosecutors charged Gomez with the December deal—it involved about one kilogram of cocaine—but not with the aborted Florida deal. Under federal law, the charge was "conspiracy to possess with intent" to distribute "at least 500 grams" of cocaine, and it brought with it a mandatory five-year minimum sentence. The Florida deal would have involved much more cocaine—seven kilograms—and would have triggered a ten-year mandatory minimum for Gomez. But instead of charging him with that separate crime, and permitting a jury to evaluate the evidence upon which that charge was based, prosecutors used it to try to coerce Gomez into pleading guilty and avoiding trial.

In 2009, when Gomez's co-conspirator pleaded guilty to a five-year minimum charge, the feds offered Gomez a deal: plead guilty and take the five-year minimum sentence or go to trial and face the possibility of a ten-year minimum sentence after prosecutors told the sentencing judge about the unconsummated Florida transaction. Prosecutors never explained why they didn't just charge him with both drug transactions (the Florida deal was a "reverse transaction," in which federal undercover agents tried to sell drugs, which means the evidence against Gomez likely was weaker). In any event, Gomez declined the deal.

At trial, prosecutors did as they had threatened—they tagged Gomez with the failed Florida drug deal, argued that it was part of the same conspiracy that led to the December deal, and then asked the judge to sentence Gomez based upon the total amount of cocaine that was in play in both transactions. The judge agreed—to his great discredit—and sentenced Gomez to a ten-year minimum sentence even though the defendant only had been charged under the five-year mandatory minimum statute. Gomez appealed to the 1st Circuit—and lost.

The Law

Prosecutors are notorious for doing to other criminal defendants what they did to Gomez—coercing them to take plea deals by threatening them with evidence a jury may or may not hear. In fact, later this week, on the eve of the justices' weekly conference at which they'll discuss the Gomez case, the international human rights organization Human Rights Watch will issue a damning report titled "An Offer You Can't Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty" that tracks the very issues that are central to the Gomez case. The report could hardly be more on point to help Gomez.

Not that the Supreme Court needs Human Rights Watch to remind it that a great deal is changing, and quickly, in this area of the law. Since Gomez was prosecuted and sentenced, the justices decided the Alleyne case that also is directly on point. Writing for a 5-4 majority in Alleyne, decided just five months ago, Justice Clarence Thomas declared that "facts that increase the mandatory minimum sentence are therefore elements [of the crime] and must be submitted to the jury and found beyond a reasonable doubt."

Alleyne overturned the case the 1st Circuit had relied upon to deny Gomez relief. But even when the 1st Circuit was confronted with the new controlling precedent it declined to reconsider its ruling against Gomez. While conceding that Gomez' constitutional rights had been violated, the federal appeals court concluded even after the Alleyne ruling that he was entitled to no relief because he had "ample notice" that he "would be held responsible" for both drug transactions.

The Case for Gomez

The lawyers for Gomez first make a simple argument in their quest for Supreme Court review: their client unconstitutionally was sentenced for a crime—the Florida deal—for which he was never charged and for which a jury never found him guilty beyond a reasonable doubt. The prosecutors in Gomez's case, they argue, "constructively amended" the indictment to change the charge against their client from the "500 grams or more" level (and the five-year minimum) to the "five kilograms or more" level (and the ten-year minimum).

In 10 of the 12 federal circuits,  the defense notes, such "constructive amendment" to indictments require the automatic reversal of a conviction.  There also is a split, they contend, among federal circuits as to whether a prosecutor's choice to omit an element of an offense from a federal indictment constitutes a "harmless error" when that element then is used against the defendant. The justices must resolve these conflicts between the circuits, Gomez's attorneys  say, and their case is the proper vehicle to do so.

They also make a broader argument in favor of Supreme Court intervention—the justices must intercede here to protect the grand jury's role in the criminal justice system. If prosecutors can use as weapons facts that are not included in an indictment they can effectively strip "the grand jury of its constitutionally-assigned duties" and leave "citizens nakedly exposed to prosecutorial excess." That's quite an accusation to be leveled at a Justice Department that has proudly proclaimed it wants to curtail those excesses. Here is the link to the Gomez brief.

The Feds Respond

The Justice Department also makes a rather simple argument as it seeks to convince the justices not to decide this case: Gomez knew or should have known that the feds would seek the use the Florida "deal" against him during the sentencing phase of his trial so he cannot now complain that prosecutors did so. The gap between the charge in the indictment and the charge for which Gomez was sentenced is "harmless error," a standard the lower courts correctly applied, and thus the result here should not be overturned by the Supreme Court.

The trial judge was correct in imposing the ten-year mandatory minimum against Gomez, federal lawyers assert, because the case against him was a conspiracy-based case in which the quantities of drugs from different transactions could lawfully be counted. And Gomez can't now complain about "constructive amendments" to the indictment against him if all he is complaining about is the sentence (and not the conviction) that ultimately was imposed upon him.

Here is the link to the government's brief opposing certiorari in this case. It is a wordy tribute to form over substance, seeking as it does on virtually every page to diminish the significance of the Court's ruling in Alleyne. Surely, the Attorney General does not read every brief, and especially every brief filed by government attorneys opposing certiorari at the Supreme Court, but if he did he likely would be mortified at the gap that exists between the sentencing reform he heralds on the stump and the harsh sentencing policies his lawyers seek to justify in court.

The Defendant's Reply

The final word to the justices goes to the party seeking review. And the first paragraph of Gomez's reply (here is the link) sums it up best:

Under the approach to harmless error advocated by the government and applied by the First Circuit, prosecutors may ignore constitutional charging requirements, shift theories of criminality as their cases evolve, and threaten defendants who refuse to plead guilty with uncharged mandatory minimums – so long as somewhere along the way they give the defendants “fair notice” of their intent to seek the new, aggravated penalties. Judges may also decide offense elements that were disputed by the parties at trial but not presented to the jury.

This approach raises fundamental questions about the role of grand juries and petit juries in our constitutional system, calls into question the validity of several of this Court’s Fifth and Sixth Amendment rulings, and implicates longstanding circuit splits. The government’s attempt to discourage review through a variety of immaterial distinctions, mischaracterizations of circuit case law, and reversals of prior positions is unpersuasive.

At his trial, defense attorneys say, Gomez "did contest his responsibility for the uncharged drug quantity" that came from that Florida deal—a deal in which no drugs were exchanged, in which federal agents were the "sellers" of the drugs, and in which no arrests were made by law enforcement agents following the demise of the transaction. There is no possible way, given these circumstances, that prosecutors can assert the error here was constitutionally "harmless" because a reasonable jury (and a reasonable grand jury for that matter) could have found Gomez not culpable for the failed Florida drug bust.

Postscript

The government's positions in this case—both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys—are utterly  inconsistent with the much-publicized policies the Attorney General himself promulgated this summer. In August, for example, Eric Holder sent a memo to his line attorneys in which he cited Alleyne and declared that "prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty." Then, in September, the Attorney General said this:

Some federal drug statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – do not serve public safety when they’re applied indiscriminately.  Because they oftentimes generate unfairly long sentences, they breed disrespect for the system.  Used inappropriately, they can be counterproductive.  And they have had an unmistakable destabilizing effect on particular communities – largely poor and of color.

Last month, I took action to change this – by modifying the Justice Department’s charging policies so that people charged with certain low-level, nonviolent drug offenses – individuals without ties to large-scale organizations, gangs, or cartels – will no longer be charged with offenses that impose draconian mandatory minimum sentences.  Instead, they will be charged with offenses for which the appropriate sentences are better suited to their individual conduct.

I am pleased to announce today that the Department has issued new guidance to apply our updated charging policy not only to new matters but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt.

But this is not remotely what the Justice Department has done in the case of Clarvee Gomez. Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so—or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time—and this is as good a case as any to start.

This article available online at:

http://www.theatlantic.com/national/archive/2013/12/does-the-attorney-general-mean-what-he-says-about-sentencing-reform/281927/