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United States v. McIvery

United States Court of Appeals, First Circuit

November 20, 2015

UNITED STATES OF AMERICA, Appellee,
v.
JAYSON ANTHONY McIVERY, Defendant, Appellant

Page 646

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS. Hon. Richard G. Stearns, U.S. District Judge.

William W. Fick, Assistant Federal Public Defender, with whom Federal Public Defender Office was on brief, for appellant.

Dina Michael Chaitowitz, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Howard, Chief Judge, Selya and Lipez, Circuit Judges.

OPINION

Page 647

SELYA, Circuit Judge.

This is a case caught in a time warp. The government indicted the defendant under a legal regime that was modified by the subsequent passage of the Fair Sentencing Act of 2010 (FSA), Pub. L. No. 111-220, 124 Stat. 2372, and the adoption of its implementing sentencing guidelines. The district court accepted the defendant's guilty plea and -- relying on its authority under Harris v. United States, 536 U.S. 545, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002), to find the drug quantities needed to calibrate the sentencing scales -- proceeded to sentence the defendant.

While this case was pending on appeal, the matter grew more complicated: the Supreme Court overruled Harris. See Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013). Buoyed by this sea change in sentencing law, the defendant argues, among other things, that the district court erred in imposing a mandatory minimum sentence and that its error is both structural and non-harmless.

Although the legal landscape is pitted, we can see a clear decisional path. We follow that path and, after careful consideration, we reject the defendant's asseverational array. Accordingly, we affirm.

I. BACKGROUND

We start by delineating the anatomy and travel of the case. In October of 2009, a federal grand jury sitting in the District of Massachusetts indicted defendant-appellant Jayson Anthony McIvery on one count of conspiracy to possess cocaine base (crack cocaine) with intent to distribute (count one) and two specific-offense counts of possession of crack cocaine with intent to distribute (counts two and three). See 21 U.S.C. § § 841(a)(1), 846. These charges stemmed from two sales of crack cocaine to a cooperating individual. The first sale, charged in count two, took place on May 11, 2009, and involved 13.7 grams of crack cocaine; the second sale, charged in count three, took place on August 8, 2009, and involved 42.5 grams of crack cocaine.

Page 648

The indictment did not specify the precise drug amounts involved, instead stating that each of the three counts " involved five grams or more of a mixture and substance" containing cocaine base. Under then-prevailing law, five grams was all that was needed to trigger a five-year mandatory minimum sentence pursuant to 21 U.S.C. § 841(b)(1)(B)(iii).

In August of 2011, the government filed an information in accordance with 21 U.S.C. § 851(a)(1) indicating that it planned to seek a sentencing enhancement premised on the defendant's two prior drug-trafficking convictions. This proposed enhancement, coupled with the drug quantities charged, exposed the defendant to a mandatory minimum sentence of ten years. See id. § 841(b)(1)(B).

The defendant originally maintained his innocence but, on September 29, 2011, pled guilty to all three counts. In the period between the indictment and the plea, Congress enacted the FSA, which elevated the quantity of crack cocaine required to impose a five-year mandatory minimum sentence to twenty-eight grams. See United States v. Douglas,644 F.3d 39, 40-41 (1st Cir. 2011). ...


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