gomez - brief in opposition

8/13/2019 Gomez - Brief in Opposition

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________________________________________________________________________________________________________________________________

No. 13-5625________________________________________________________________________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

CLARVEE GOMEZ, AKA TONY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

DONALD B. VERRILLI, JR.Solicitor GeneralCounsel of Record

MYTHILI RAMANActing Assistant Attorney General

RICHARD A. FRIEDMANAttorney

Department of JusticeWashington, D.C. [email protected](202) 514-2217


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(I)

QUESTIONS PRESENTED

1. Whether harmless-error review applies to the imposition

of a mandatory-minimum sentence for a drug offense involving five

kilograms or more of cocaine where the grand jurys indictment

alleged that the offense involved at least 500 grams of cocaine.

2. Whether the petit jurys failure to find the drug quan-

tity triggering the district courts imposition of a mandatory-

minimum sentence was harmless beyond a reasonable doubt on the

facts of this case.


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IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 13-5625

CLARVEE GOMEZ, AKA TONY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALSFOR THE FIRST CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-20a) is

reported at 716 F.3d 1.JURISDICTION

The judgment of the court of appeals was entered on May 3,

2013. The petition for a writ of certiorari was filed on July 31,

2013. The jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

STATEMENT

After a jury trial in the United States District Court for the

District of Massachusetts, petitioner was convicted of conspiracy


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to possess with intent to distribute cocaine, in violation of 21

U.S.C. 846. The grand jurys indictment alleged that the offense

involved at least500 grams of cocaine, which was sufficient to

trigger a five-year mandatory-minimum sentence under 21 U.S.C.

841(b)(1)(B) and 846. At sentencing, the district court found that

the conspiracy involved eight kilograms of cocaine and imposed the

ten-year mandatory-minimum sentence in 21 U.S.C. 841(b)(1)(A) and

846, which applies to offenses involving at least five kilograms of

cocaine. The court of appeals affirmed. Pet. App. 1a-20a.

1. A federal grand jury indicted petitioner and Juan Pena-

Rosario (Pena) for conspiring to possess with intent to distribute

cocaine. Pet. App. 23a-24a. Petitioner and Penas conspiracy

involved at least two drug transactions. Id. at 3a-9a. In August

2008, petitioner arranged for the transportation to Massachusetts

of seven kilograms of cocaine that he desired to purchase, and by

at least early September 2008, Pena had joined petitioner as a co-

conspirator in that transaction. Id. at 3a-5a. The indictment

thus alleged that both petitioner and Pena had engaged in their

drug conspiracy from at least in or about September, 2008. Id.

at 23a. On December 11, 2008, petitioner and Pena also partici-

pated in a second transaction involving one kilogram of cocaine

that led to their arrests. Id. at 5a-9a. The indictment accord-

ingly alleged that petitioner and Penas conspiracy continued

until at least December 11, 2008. Id. at 23a. At trial, the


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evidence overwhelmingly established that the conspiracy involved

more than five kilograms of cocaine. Id. at 19a.

a. During the summer of 2008, petitioner, who resided in the

Boston area, contacted a Drug Enforcement Agency (DEA) confidential

informant (CI) in Orlando, Florida, to discuss purchasing cocaine

for distribution. In recorded telephone conversations, petitioner

indicated that he wanted large quantities of cocaine and the CI

informed petitioner that petitioner would need to pay an additional

$1000 per kilogram of cocaine if he wanted the CI to transport the

cocaine to Massachusetts. Pet. App. 3a-4a.

On August 28, 2008, petitioner met with the CI in Orlando,

Florida. Their conversation was recorded and visually monitored by

DEA agents. Petitioner and the CI discussed the logistics of

having the CI transport the cocaine to Massachusetts; petitioner

asked to see the cocaine; and the CI presented petitioner with

seven kilograms of cocaine (in the trunk of a car driven by

undercover DEA agent). Petitioner declared the cocaine to be high

quality after he sampled one of the seven bricks. Petitioner asked

youre bringing me seven, right? and the CI confirmed the amount.

Petitioner then paid the CI $7000 in cash to transport the seven

kilograms to Massachusetts. Pet. App. 4a.

The CI thereafter arranged to meet petitioner on September 2,

2008, at a Chilis restaurant in Lowell, Massachusetts, to sell the

seven kilograms of cocaine. Agents conducting surveillance of the


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September 2 meeting observed Pena drive his SUV to the restaurants

parking lot, where he remained in his vehicle. Petitioners

meeting with the CI in the restaurant was recorded. During their

conversation, petitioner told the CI that his guy was outside and

at some point petitioner left the restaurant to meet with Pena.

After petitioner and Pena had talked for five minutes, petitioner

returned to the CI and urged the CI to front him the seven

kilograms without prepayment. The CI refused, petitioner would not

agree to pay up front, and the transaction ended. Pet. App. 4a-5a.

b. Agents subsequently initiated wiretaps on Penas cell

phones. On December 11, 2008, they intercepted a conversation in

which petitioner and Pena planned for petitioner to deliver to Pena

one kilogram of cocaine that evening. Agents intercepted further

calls between Pena, petitioner, and others planning the transaction

at a karate school in Lawrence, Massachusetts. Pet. App. 5a-7a.

That evening, DEA agents established surveillance at the

karate school and saw Pena enter the building. Pena exited after

about five minutes and drove away. Ten to fifteeen minutes later,

three others left and drove away in a Dodge. Pet. App. 7a-8a.

Agents arrested Pena and discovered a kilogram of cocaine

stuffed into the waistband of his pants. Other agents stopped the

Dodge in which petitioner and two others were riding. They recov-

ered from petitioner a cell phone that matched the number of the

phone used to call Pena to set up the evenings transaction and a


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business card with the Florida CIs phone number. Pet. App. 8a-9a.

2. a. Later in December 2008, a federal grand jury indict-

ed petitioner and Pena. Pet. App. 23a-27a. The indictment alleged

that both had engaged in a drug conspiracy in violation of 21

U.S.C. 846 [f]rom a date unknown to the Grand Jury, but from at

least in or about September, 2008 and that theconspiracy contin-

ued until at least December 11, 2008. Pet. App. 23a. The in-

dictment alleged that the conspiracy involved at least 500 grams

of cocaine and that, [a]ccordingly, [21 U.S.C.] 841(b)(1)(B)(ii)

applies to the offense. Id. at 24a. That provision establishes a

five-year mandatory-minimum sentence for drug offenses involving

500 grams or more of cocaine. 21 U.S.C. 841(b)(1)(B)(ii), 846.

Under Section 841(b)(1)(A)(ii), offenses involving five kilograms

or more of cocaine trigger a ten-year mandatory minimum. 21 U.S.C.

841(b)(1)(A)(ii), 846.

Apprendi v. New Jersey, 530 U.S. 466, 469, 490, 497 (2000),

held that a fact increasing the statutory maximum sentence for an

offense (other than the fact of a prior conviction) must be found

by a petit jury based on proof beyond a reasonable doubt. Facts

subject to the Apprendi rule also must be charged in a federal

indictment under the Fifth Amendment. See United States v. Cotton,

535 U.S. 625, 627 (2002).

When the grand jury issued the indictment in this case, Ap-

prendis reasoning did not affect mandatory minimum sentences.


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This Court in Harris v. United States, 536 U.S. 545 (2002), had

instead held that a fact increasing the mandatory minimum is not

an element of an aggravated crime and that Congress may therefore

authorize a sentencing judge to find such a fact without violating

the constitutional requirements of charg[ing] each element in the

indictment, submit[ing] each element to the jury, and prov[ing]

each element beyond a reasonable doubt. Id. at 557 (plurality

opinion by Kennedy, J.); id. at 569-570 (Breyer, J., concurring in

part and concurring in the judgment) (Apprendi does not apply to

mandatory minimums.). The parties thus were on notice in 2008

that an indictment alleging a conspiracy offense involving at

least500 grams of cocaine, triggering at least a five-year manda-

tory-minimum sentence under 21 U.S.C. 841(b)(1)(B)(ii), could also

trigger a ten-year minimum under 21 U.S.C. 841(b)(1)(A)(ii) if the

offense involved five kilograms or more of cocaine.

b. Petitioner did not challenge the sufficiency of his

indictment before the jurysverdict. Instead, he filed a pretrial

motion to suppress evidence about his meetings with the DEAsCI in

August (in Florida) and September 2008 (in Massachusetts). Doc.

125. Petitioner asserted that the evidence was not relevant

under Fed. R. Evid. 402 to his conspiracy with Pena charged in the

indictment because, he argued, the September meeting at Chilis in

which Pena remained in his vehicle either did not involve [Pena]

or, if it did, concerned a separate conspiracy involving some


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seven kilos of cocaine. Doc. 125, at 1. The district court

denied the evidentiary motion without prejudice to its renewal,

Doc. 129, and subsequently denied petitioners renewed objection at

trial. C.A. App. 69; see Pet. App. 10a.

On the last day of trial, the government submitted a verdict

form to the district court that asked the jury to find that

petitioners drug conspiracy involved five kilograms or more of

cocaine. Pet. App. 10a; C.A. App. 459-460. Petitioner objected on

the ground that [t]he indictment charges 500 grams or more. C.A.

App. 459. The court selected a form that asked the jury whether

the conspiracy involved 500 grams or more of cocaine. Id. at 460.

The jury found petitioner guilty and found that his offense

involved at least 500 grams or more of cocaine. Pet. App. 28a.

c. At sentencing, petitioner objected to the Presentence

Reports conclusion that his conspiracy offense involved eight

kilograms of cocaine, which triggered a ten-year mandatory-minimum

sentence under 21 U.S.C. 841(b)(1)(A). Petitioner argued the

indictment charged him only with 500 grams or more of cocaine and,

because the drug quantity was a fact affecting his mandatory

minimum, it must be plead[ed] and found by a jury beyond a

reasonable doubt. C.A. App. 532, 535-537. The district court

determined that petitioners conspiracy offense involved eight

kilograms of cocaine and sentenced petitioner to the ten-year

mandatory minimum in 21 U.S.C. 841(b)(1)(A), 846. Pet. App. 11a.


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3. The court of appeals affirmed. Pet. App. 1a-20a. The

court rejected three arguments relevant here.

First, the court of appeals rejected petitioners argument

that the district court erroneously admitted evidence about the

seven-kilogram drug transaction ending September 2008, which,

according to petitioner, was a separate conspiracy not alleged in

the indictment. Pet. App. 11a-13a; cf. Pet. C.A. Br. 37-44. The

court concluded that the indictments allegation of a cocaine

trafficking conspiracy included the seven-kilogram transaction and

that the evidence showed that that transaction was part of the

same conspiracy as the subsequent one-kilogram transaction. Pet.

App. 12a-13a.

Second, the court of appeals rejected petitioners contention

that his ten-year prison sentence violated the Fifth Amendment

because the grand jurys indictment did not charge him with an

offense carrying that mandatory minimum (for offenses involving

five kilograms or more of cocaine). Pet. App. 19a-20a; cf. Pet.

C.A. Br. 32-36. The court explained that it had previously

rejected petitionersargument in United States v. Eirby, 262 F.3d

31 (1st Cir. 2001), which concluded that, [i]n an indictment for

conspiring to commit an offense, unlike indictments for other

offenses, the conspiracy is the gist of the crime, and it is

therefore unnecessary to allege all the elements essential to the

commission of the offense which is the object of the conspiracy,


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id. at 38. See Pet. App. 19a-20a. The court thus reasoned that

the indictments specification of a penalty provision was not

essential to the validity of the [drug] conspiracy count. Ibid.

(quoting Eirby, 262 F.3d at 38). The court further concluded that,

because petitioner had ample notice that he would be held respon-

sible for both drug transactions under the conspiracy charge, the

[district] court did not err in sentencing [petitioner] to a ten-

year mandatory-minimum sentence. Id. at 20a.

Finally, the court of appeals held that the district court did

not reversibly error by basing petitioners ten-year sentence on

the district courts findingthat petitioners conspiracy involved

more than five kilograms of cocaine. Pet. App. 18a-19a. The court

of appeals rested that ruling on two alternative holdings. First,

the court rejected petitioners contention that the mandatory-

minimum sentence, which was not based on a jurys finding beyond a

reasonable doubt, was unconstitutional under Apprendi. Id. at 18a.

The court explained that, under this Courts (then) controlling

precedent in Harris and its own binding precedent, a sentencing

court may impose a mandatory minimum sentence based on the courts

findings as to drug quantity. Id. at 19a. Second, the court

alternatively held that any error was harmless because the trial

evidence overwhelmingly showed that petitioner repeatedly tried

to acquire seven kilograms of cocaine. Ibid. The court supported

that harmless-error holding by citing (ibid.) its decision in


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United States v. SotoBenquez, 356 F.3d 1 (1st Cir.), cert.

denied, 541 U.S. 1074, 543 U.S. 1014 (2004), which held that an

Apprendi error is harmless beyond a reasonable doubt where the

evidence overwhelmingly establishes the minimum drug quantity

needed to justify the mandatory sentence. Id. at 46.

4. After the time for rehearing had passed, this Court

overruled Harris and held that any fact that increases the

mandatory minimum [sentence for an offense] is an element that

must be submitted to the jury. Alleyne v. United States, 133 S.

Ct. 2151, 2155 (2013). Petitioner moved the court of appeals to

recall its mandate in light of Alleyne and for leave to file a

rehearing petition out of time. The court denied the motion and

did not modify any aspect of its decision. See Pet. App. 22a.

ARGUMENT

Petitioner seeks this Courts review on harmless-error ques-

tions resulting from (1) the grand jurys failure to allege the

drug quantity (five kilograms or more of cocaine) that triggered

his mandatory-minimum sentence and (2) the petit jurys failure to

find that quantity. Petitioner argues that the indictment error is

a structural error not subject to harmless-error review, Pet. 9-20,

and that the sentencing courts factfinding made without the requi-

site petit-jury finding, while subject to harmless-error review,

was not harmless on the facts of this case, Pet. 20-27. The first

harmless-error question is not properly presented and does not


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warrant review in this case. The second question likewise warrants

no review. The judgment of the court of appeals is correct.

Certiorari should be denied.

1. Petitioner contends (Pet. 9-20) that his claim that the

grand jurys indictment was insufficient to support his sentence

identifies a structural error not subject to harmless-error analy-

sis. He further argues (Pet. 9-10) that his claim implicates two

distinct circuit splits about harmless-error analysis of indictment

errors. The court of appeals did not address the harmless-error

question that petitioner presents and this case is not a suitable

vehicle for this Court to address it.

Review is unwarranted for the threshold reason that petitioner

presents a harmless-error question that the court of appeals did

not address. The court of appeals held that, in the context of the

conspiracy offense alleged in the indictment, the district court

did not err in imposing its sentence. Pet. App. 20a; see Pet. 7;

pp. 8-9, supra. The court reasoned that the conspiracy count was

sufficient, despite its citation of 21 U.S.C. 841(b)(1)(B) rather

than 21 U.S.C. 841(b)(1)(A), because petitioner had ample notice

that would be held accountable for drug quantities triggering

Section 841 (b)(1)(A) if convicted. Pet. App. 19a-20a. Petitioner

has neither identified that distinct issue for this Courts review

(Pet. i) nor otherwise analyzed the court of appeals conspiracy-

based ruling in his petition (Pet. 9-20).


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To support his contention that this Court should grant plenary

review on the harmless-error question he presents, petitioner

asserts (Pet. 10) that the court of appeals must have concurred

with the governments position (expressed in its opposition to

petitioners motion to recall the mandate and file an untimely

rehearing petition) that any indictment error should be dismissed

as harmless, because the court of appeals refus[ed] to reconsider

its decision after Alleyne [v. United States, 133 S. Ct. 2151

(2013),] was decided. But the summary order denying petitioners

motion simply states that the motion is denied and thus does not

address harmless error. Pet. App. 22a. No review on petitioners

unaddressed harmless-error question is warranted. Decker v. North-

west Envtl Def. Ctr., 133 S. Ct. 1326, 1335 (2013) (This Court is

a court of review, not of first view.) (citation omitted). And

the panels discretionary decision not to recall its mandate or to

permit an untimely rehearing petition does not warrant review. Cf.

Calderon v. Thompson, 523 U.S. 538, 549 (1998) (mandate-recall

rulings are reviewed only for an abuse of discretion).

Even if this Court could assume, as petitioner suggests (Pet.

10), that the panels denial of his motion to recall the mandate

and file an untimely rehearing petition somehow reflected the

panels decision to concur implicitly with the governments

argument that any indictment error was harmless, this case would

not be a suitable vehicle for review. Not only is a reasoned


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opinion to guide review entirely absent, the two asserted circuit

conflicts that petitioner invokes (Pet. 9; see Pet. 9-14; Pet. 14-

17) do not warrant review in this case.

a. Petitioner first contends (Pet. 9-14) that the courts of

appeals are divided over whether a constructive amendment of an

indictment is a structural error. See Pet. 11-13. Petitioner re-

cognizes that a constructive amendment occurs when the indict-

ments allegations are effectively altered by the presentation of

evidence and jury instructions such that there is a substantial

likelihood that the jury rendered its verdict on an offense dif-

ferent than that charged in the indictment. Pet. 11 n.3 (quoting

United States v. DAmelio, 683 F.3d 412, 416 (2d Cir. 2012), cert.

denied, 133 S. Ct. 2021 (2013)). Petitioner illustrates (Pet. 9)

that constructive-amendment concept by discussing Stirone v. United

States, 361 U.S. 212 (1960),1

and he asserts (Pet. 11-12) a

division of authority by relying upon decisions that exclusively

address evidentiary and instructional rulings deemed to construc-

1The indictment in Stirone alleged an effect on interstate

commerce involving shipments of sand, 361 U.S. at 213, but thedistrict court erroneously admitted evidence about the effect oninterstate steel shipments and instructed the jury that it could

rest its interstate-commerce finding on steel shipments alone, id.at 214. In that evidentiary and instructional context, the Courtconcluded that the district court had effectively amend[ed] theindictment because it had given the jury a new basis for convic-tion (concerning steel) such that the Court could not determine

whether the jury convicted [Stirone] solely on the charge made inthe indictment (concerning sand). Id. at 217.


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tively amend indictments and taint jury verdicts. But this case

involves considerations distinct from those involving constructive

amendments and thus does not implicate petitioners asserted divi-

sion of authority.

Petitioner does not challenge the jurys verdict or the evi-

dentiary and instructional rulings underlying it. Petitioner has

not sought review of the court of appeals holding that the indict-

ments factual description of the conspiracy charge encompassed

petitionersseven-kilogram cocaine transaction and that evidence

of that transaction was thus properly admitted. Pet. App. 12a-13a;

p. 8, supra. Petitioner instead argues that the district court

erred in sentencing him to a ten-year mandatory minimum based on a

jury verdict that he no longer disputes. In short, this case does

not implicate -- and this Courts review would not resolve --

petitioners asserted division of authorityinvolving constructive

amendments to indictments.

b. Petitioner further argues (Pet. 14-17) that the courts of

appeals are divided over whether the omission of an essential

element from an indictment is subject to harmlessness review.

Pet. 14. But even if this case were an otherwise suitable vehicle

to consider the question (which it is not), certiorari would not be

warranted here.

i. The omission from an indictment of a sentence-enhancing

fact is subject to harmlessness review. Such an omission, which


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becomes error only upon sentencing, bears no relation to the very

limitedcategory of pervasive and fundamental errors that are so

intrinsically harmful to the framework of a trial that this Court

has deemed them structural. See Neder v. United States, 527 U.S.

1, 8 (1999) (listing examples); United States v. Gonzalez-Lopez,

548 U.S. 140, 148-149 (2006). In Neder, this Court held that the

failure to submit an offense element to the petit jury does not

constitute structural error. Id. at 8-15. And in Washington v.

Recuenco, 548 U.S. 212, 221-222 (2006), this Court reached the same

conclusion with respect to a sentence-enhancing fact not submitted

to the jury. It necessarily follows that the omission of a

sentence-enhancing fact from the indictment does not constitute

structural error either.

First, the Fifth Amendment right to an indictment by a grand

jury, unlike the Sixth Amendment right to a trial by a petit jury,

has not been incorporated against the States through the Fourteenth

Amendment as an essential requirement of fundamental fairness. See

Hurtado v. California, 110 U.S. 516, 538 (1884).2 Second, this

Court has held that errors at the charging stage may be rendered

harmless by subsequent developments in the prosecution. See United

2Fewer than half of the States require grand jury indictmentsas a matter of state law, and several of those States require themonly for charges carrying a capital or life sentence. See 1 SaraSun Beale et al., Grand Jury Law and Practice 1:1, 1:7, at 1-3 &nn.7-8, 1-32 & n.2 (2d ed. 1997 & Supp. 2001) (revised 2012).


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States v. Mechanik, 475 U.S. 66, 70-72 & n.1 (1986); see also Bank

of Nova Scotia v. United States, 487 U.S. 250, 255-256 (1988).

Third, although the grand jury undoubtedly performs a vital protec-

tive function, that is surely no less true of the petit jury,

which provides the accused even greater protection. Cotton, 535

U.S. at 634. In the grand jury, the prosecutor has no obligation

to present exculpatory evidence; the accused has no right to pre-

sent evidence at all; a finding of probable cause by a simple

majority suffices; and a vote not to indict raises no bar to

further proceedings akin to the Double Jeopardy Clause. Those con-

siderations compel the conclusion that the failure to submit an

issue of fact to the grand jury does not stand on a higher plane

than a failure to submit an issue of fact to the petit jury, which

Neder and Recuenco hold is subject to harmless-error review.

That conclusion is reinforced by Cotton, where this Court held

that the failure either to allege a sentence-enhancing fact (drug

quantity) in the indictment or to obtain a finding on it from the

petit jury was not reversible plain error. 535 U.S. at 631-634.

Although the Court reserved the question whether the third compo-

nent of the federal plain-error inquiry -- whether the error af-

fected substantial rights -- had been satisfied, it concluded that

the fourth component was not satisfied because any error did not

seriously affect the fairness, integrity, or public reputation of

judicial proceedings. Id. at 632-633. The Courts holding in


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Cotton that the omission of a sentence-enhancing fact from the

indictment in that case did not seriously affect the fairness,

integrity, or public reputation of judicial proceedings supports

the conclusion that an Apprendi indictment error does not auto-

matically or inherently affect a defendants substantial rights,

and thus is not structural.

ii. As petitioner notes (Pet. 17), this Court in 2006 granted

certiorari in United States v. Resendiz-Ponce, 549 U.S. 102 (2007),

to decide whether the omission of an element of a criminal offense

from a federal indictment can constitute harmless error, but the

Court ultimately did not decide the issue. Id. at 103-104. The

majority of courts of appeals to consider the issue have held that

the omission of an element of an offense, even if subject to a

timely objection, is subject to harmless-error review. See United

States v. Dentler, 492 F.3d 306, 310 (5th Cir. 2007); United States

v. Cor-Bon Custom Bullet Co., 287 F.3d 576, 580-581 (6th Cir.),

cert. denied, 537 U.S. 880 (2002); United States v. Prentiss, 256

F.3d 971, 981-985 (10th Cir. 2001) (en banc), overruled in part on

other grounds by Cotton, 535 U.S. at 633; United States v.

Corporan-Cuevas, 244 F.3d 199, 202 (1st Cir.), cert. denied, 534

U.S. 880 (2001). And although the Third and Ninth Circuits have

held, in decisions predating this Courts decision in Cotton, that

omissions of (non-sentencing) offense elements constitute structur-

al error, see United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir.


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1999); United States v. Spinner, 180 F.3d 514, 515-516 (3d Cir.

1999), more recent decisions from those courts issued after

Resendiz-Ponce cast doubt on the extent of any current division of

authority.3

But even if a meaningful division of authority were to per-

sist, it would not reach the circumstances presented here. The

courts of appeals uniformly agree that harmless-error review does

apply to Apprendi-based indictment errors, i.e., omissions of

sentencing-enhancement factors from indictments. See, e.g., United

States v. Confredo, 528 F.3d 143, 156 (2d Cir. 2008) (enhancement

under 18 U.S.C. 3147), cert. denied, 556 U.S. 1144 (2009); United

States v. Salazar-Lopez, 506 F.3d 748, 750, 753 (9th Cir. 2007)

(enhancement under 8 U.S.C. 1326(b)(1)), cert. denied, 553 U.S.

1074 (2008); United States v. Brown, 441 F.3d 1330, 1368 n.16 (11th

Cir. 2006) (Federal Death Penalty Act (FDPA) sentencing factor),

3In 2007, the Ninth Circuit refused to extend Du Bo to thesentencing context involving Apprendi indictment errors, seeUnited States v. Salazar-Lopez, 506 F.3d 748, 750, 753-755 (9thCir. 2007), cert. denied, 553 U.S. 1074 (2008), and concluded thatDu Bos jurisdictional rationale ha[d] been overruled by [this]Court in Cotton, id. at 754 n.5. Although the Third Circuit hasnot issued a published decision revisiting Spinner in light ofCotton, it has in a recent unpublished decision declined to applySpinner (which set aside a guilty plea) to reverse a convictionentered after a jury trial at which the petit jury was instructedon all elements of the offense. United States v. Green, 516 Fed.Appx. 113, 125-126 (3d Cir. 2013). Green alluded to this Courtsdecision in Neder to support its conclusion that any indictmenterror was harmless, given the petit jurys subsequent findings

beyond a reasonable doubt. Ibid.


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cert. denied, 549 U.S. 1182 (2007); United States v. Cordoba-

Murgas, 422 F.3d 65, 69, 72 (2d Cir. 2005) (drug-quantity enhance-

ment); United States v. Allen, 406 F.3d 940, 945 (8th Cir. 2005)

(en banc) (FDPA element), cert. denied, 549 U.S. 1095 (2006);

United States v. Robinson, 367 F.3d 278, 285-286 & n.7 (5th Cir.)

(same), cert. denied, 543 U.S. 1005 (2004); United States v.

Trennell, 290 F.3d 881, 889-890 (7th Cir.) (drug quantity), cert.

denied, 537 U.S. 1014 (2002). Petitioner offers no contrary

authority. Pet. 15-16.4

Petitioner conflates the two issues -- omission of a non-

sentencing element of an offense and omission of a sentence-

enhancing factor -- by asserting a circuit conflict based on

decisions that do not address Apprendi indictment errors. See Pet.

15-16 (citing United States v. Kingrea, 573 F.3d 186, 194 (4th Cir.

2009), Du Bo, and Spinner).5

While this Court has stated (and the

United States has argued) that elements of an offense and statutory

sentencing enhancements should be analyzed in the same manner, see

4Petitioner cites two Apprendi indictment decisions that donot consider harmless-error review. See United States v. Gonzalez,686 F.3d 122, 127-133 (2d Cir. 2012) (finding indictment error butfailing to address whether harmless-error review should apply);United States v. Velasco-Heredia, 319 F.3d 1080, 1085-1086 (9thCir. 2003) (concluding that error was harmful without consideringwhether harmless-error review applies).

5Kingrea does not even address the harmless-error question.See 573 F.3d at 194 n.6 (declining to review for harmless errorbecause the government did not argue harmless error).


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Recuenco, 548 U.S. at 220, as explained above, the conflict among

the courts of appeals is limited only to the broader harmless-error

issue (omission of a non-sentencing statutory offense element) that

is not presented here. This Court has accordingly denied certiora-

ri in at least three capital cases presenting the same harmless-

error question in the Apprendi indictment error context, notwith-

standing the broader conflict noted above. See Davis v. United

States, 131 S. Ct. 1676 (2011) (No. 10-7564); Battle v. United

States, 549 U.S. 1343 (2007) (No. 06-8356); Allen, 549 U.S. 1095

(No. 05-6764). The Court has similarly denied certiorari in non-

capital cases raising the issue. See, e.g., United States v.

Lucatero-Campos, 231 Fed. Appx. 607, 610 (9th Cir. 2007)

(sentencing-enhancement factor not charged in the indictment),

cert. denied, 552 U.S. 1145 (2008) (No. 07-6575).6 There is no

reason for a different result here.

c. Finally, this Courts review is unwarranted because

petitioner invokes an Apprendi indictment error that is transition-

al. Alleyne overruled Harris after the court of appeals decision

in this case, long after petitioners indictmentand sentencing

(which had been valid under Harris). Alleyne established the need

for findings on factors that trigger mandatory-minimum sentences

6This Court has also denied petitions raising the broaderquestion left open by Resendiz-Ponce. See, e.g., United States v.Hardy, 499 Fed Appx. 388, 390-391 (5th Cir. 2012) (per curiam),cert. denied, No. 12-9527 (Oct. 7, 2013).


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from both the grand jury and the petit jury. The harmless-error

issue here is thus of sharply reduced prospective importance.

2. Petitioner acknowledges (Pet. 23 n.4) that the imposition

of a mandatory-minimum sentence based on a drug quantity that the

petit jury has not found, see Alleyne, 133 S. Ct. at 2155, is

subject to harmless-error review. See Recuenco, 548 U.S. at 222.

The court of appeals thus correctly concluded that any error based

on the absence of a petit-jury finding on the drug quantity was

subject to harmless-error review. Pet. App. 19a; see Pet. 21.

Petitioner presents the narrower argument (Pet. 20-27) that that

court erred on the facts of this case in finding any Alleyne error

to be harmless beyond a reasonable doubt because, he asserts, he

contested that quantity. Petitioners factbound challenge merits

no further review.

a. Outside of the narrow category of structural errors, see

Neder, 527 U.S. at 7-8, the requirement that an error affect

substantial rights, Fed. R. Crim. P. 52(a); see 28 U.S.C. 2111, in

order to warrant reversal requires the reviewing court to examine

the district court record * * * to determine whether the error

was prejudicial, i.e., whether it affected the outcome of the

district court proceedings. United States v. Olano, 507 U.S. 725,

734 (1993) (discussing Rule 52(a)); see Mechanik, 475 U.S. at 72.

This Court has established an objective test for harmlessness that


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asks whether a rational jurywould have reached the same result

absent the error. Neder, 527 U.S. at 18.

A constitutional error judged under the standard in Chapman v.

California, 386 U.S. 18 (1967), is harmless if the evidence is so

overwhelming as to leave it beyond a reasonable doubt that the

verdict resting on that evidence would have been the same in the

absence of the [error]. Yates v. Evatt, 500 U.S. 391, 405 (1991)

(applying Chapman); accord, e.g., Schneble v. Florida, 405 U.S.

427, 430 (1972); Harrington, 395 U.S. at 254. The Court has thus

made clear that such an error will be harmless where the evidence

is sufficiently strong that the result of the proceedings would

have been the same absent the error. Neder, 527 U.S. at 17.

Petitioner argues (Pet. 22-24) that the proper standard for

harmless constitutional error requires clarification because some

courts consider the prejudicial effect of the constitutional error

on the proceedingwhile others focus[] on the courts own assess-

ment of a defendants guilt based on the evidentiary record. Pet.

22. But in a case such as this, where no petit jury finding was

made on an issue, Neder explains that if a reviewing court con-

cludes beyond a reasonable doubt that the evidence of guilt is so

strong that the jury verdict would have been the same absent the

error, the error did not contribute to the verdict obtained.

527 U.S. at 17 (quoting Chapman, 386 U.S. at 24). In Neder, the

error prevent[ed] the jury from making a finding on [an] element


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of the offense, id. at 4, 10-11, but this Court found the consti-

tutional error harmless based on the overwhelming record evidence

of guilt, because a rational jury would have found the defendant

guilty absent the error, i.e., the verdict would have been the

same absent the error, id. at 17-18.

Petitioner suggests (Pet. 23) that Neder holds that an offense

element not found by the jury will constitute harmless error only

if the element is uncontested at trial. That is incorrect.

Neder concluded that the harmless-error inquiry must be essential-

ly the same for an element [omitted] in violation of the right to

a jury trial as for other constitutional errors such as the con-

stitutionally erroneous admission * * * [or] exclusion of evi-

dence. 527 U.S. at 18. Such errors are harmless if a reviewing

court determines beyond a reasonable doubt that the jury verdict

would have been the same absent the error. Id. at 19. The Court

indicated that an error would not be harmless, for example, where

the defendant contested the omitted element and the reviewing

court -- in typical appellate-court fashion -- concludes that the

evidence [is] sufficient to support a contrary finding by a

rational jury. Ibid. But the court of appeals here followed that

approach in concluding that any Apprendi error in this case was

harmless beyond a reasonable doubt because the evidence over-

whelmingly establishe[d] the minimum drug quantity needed to justi-

fy petitioners sentence, United States v. SotoBenquez, 356 F.3d


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1, 46 (1st Cir.), cert. denied, 541 U.S. 1074, 543 U.S. 1014

(2004). See Pet. App. 19a (citing SotoBenquez).

b. The government has previously explained that similar

harmless-error questions warrant no further review, see, e.g., Br.

in Opp. 13-18, Demmitt v. United States, No. 12-10116 (Oct. 15,

2013), and this Court has recently denied certiorari on such

questions. See, e.g., Demmitt, supra; Ford v. United States, 133

S. Ct. 2795 (2013) (No. 12-7958); Acosta-Ruiz v. United States, 133

S. Ct. 2795 (2013) (No. 12-6908). No different result is warranted

here. None of the decisions petitioner cites (Pet. 23-24) reflects

a conflict over legal principles, as opposed to different outcomes

reflecting the distinct records in different cases.

In United States v. Hunt, 656 F.3d 906 (2011), for example,

the Ninth Circuit confronted a guilty-plea conviction in which the

government erroneously failed to obtain the defendants admission

of his intent to distribute cocaine. Id. at 912-913. The court

concluded that the government failed to establish harmlessness

beyond a reasonable doubt because the record evidence [was] far

from overwhelming. Id. at 916. The court explained that the

record was inadequate because the relevant factual issue was

never litigated, id. at 915, and because the circumstantial

evidence on the record of th[e] case was not sufficiently

weight[y] (id. at 914 n.3) in light of the contrary evidence and

the fact that the parties had not submitted the evidence that they


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would have presented at trial. Id. at 914-916. Nothing in Hunt

suggests that the court of appeals fact-bound assessment of the

record in this case was incorrect. Cf. also United States v.

Hollis, 490 F.3d 1149, 1157 (9th Cir. 2007) (concluding that

overwhelming and uncontradicted evidence was sufficient to show

harmless[ness] beyond a reasonable doubt), cert. denied, 552 U.S.

1166 (2007), abrogated in part on other grounds, DePierre v. United

States, 131 S. Ct. 2225 (2011).

The D.C. Circuit similarly concluded in United States v.

Sheehan, 512 F.3d 621 (2008), that the evidence was not strong

enough to permit it to conclude that the case was not[a] close

one for guilt. Id. at 632. The court explained that it was im-

possible to assess the weight of the evidence in th[e] case,

because the judge presiding over the bench trial had erroneously

construed the crime as a strict liability offense, had eliminated

the governments need to prove any mensrea, id. at 630-631, andhad barred the defendant from admitting any of the crucial

evidence abouther knowledge and intent, id. at 632-633. That

holding is entirely consistent with the conclusion that the

overwhelming evidence in this case (in which petitioner did present

his defense) was harmless beyond a reasonable doubt.

c. Petitioner criticizes (Pet. 26) the court of appeals

cursory analysis of harmless-error in this case. But a courts

harmless-error discussion need not contain detailed analysis in


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every case to be sufficient. See Jones v. United States, 527 U.S.

373, 404 (1999) (explaining that a detailed explanation may not

be necessary); Sochor v. Florida, 504 U.S. 527, 540 (1992)

(indicating that a plain statement that the judgment survives

harmless-error review may be sufficient). In this case, no de-

tailed discussion was warranted. The evidence that petitioners

conspiracy involved more than five kilograms of cocaine was truly

overwhelming. Pet. App. 19a. The evidence -- which included

petitioners own recorded conversations, photographs of the seven

kilograms that were shown to petitioner and that petitioner agreed

to buy, and testimony from the CI and multiple law-enforcement

agents -- left no reasonable doubt on the question. See, e.g.,

Govt C.A. Br. 3-10, 45-46. Even petitioner, who testified in his

own defense, did not seriously contest the point. See, e.g., id.

at 46; C.A. App. 432-434. Petitioners suggestion (Pet. 24-25)

that this Court reevaluate the evidentiary record presents no issue

warranting review. United States v. Johnston, 268 U.S. 220, 227

(1925) (We do not grant * * * certiorari to review evidence

and discuss specific facts.).


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CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

DONALD B. VERRILLI, JR.Solicitor General

MYTHILI RAMANActing Assistant Attorney General

RICHARD A. FRIEDMANAttorney

OCTOBER 2013

gomez - brief in opposition

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