United States v. McIvery, No. 12-1257 (1st Cir. 2015)
Annotate this CaseIn 2009, Defendant was indicted on one count of conspiracy to possess cocaine base with intent to distribute and two specific-offense counts of possession of crack cocaine with intent to distribute. The indictment did not specify the precise drug amounts involved, but under then-prevailing law, five grams was all that was needed to trigger a five-year mandatory minimum sentence. Defendant eventually pled guilty to all three counts. Between the indictment and the plea, Congress enacted the Fair Sentencing Act of 2010 (FSA), which elevated the quantity of crack cocaine required to impose a mandatory minimum sentence to twenty-eight grams. Prior to sentencing, Defendant challenged the applicability of the statutory mandatory minimum, arguing that attributing twenty-eight grams or more of crack cocaine to him would entail the use of a fact not charged in the indictment. Relying on Harris v. United States, the court invoked the statutory mandatory minimum and sentenced Defendant to concurrent ten-year terms of immurement. After Defendant appealed, the United States Supreme Court decided Alleyne v. United States and overruled Harris. The First Circuit affirmed, holding that while an Alleyne error occurred in this case, the error was harmless beyond a reasonable doubt.
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