APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE. Hon. D. Brock Hornby, U.S. District Judge.
Jane Elizabeth Lee for appellant.
René e M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Before Lynch, Chief Judge, Torruella and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge.
Ryan Butterworth was convicted by a jury in 2007 on federal criminal charges arising from his involvement in a crack-cocaine distribution operation. He initiated a collateral attack on his sentence after the Supreme Court, in Alleyne v. United States, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), held that any fact leading to the imposition of a mandatory minimum sentence must be found by a jury beyond a reasonable doubt. The district court denied Butterworth's motion for habeas relief under 28 U.S.C. § 2255. Butterworth's appeal presents us with an issue of first impression for this circuit: whether the rule announced in Alleyne applies retroactively to sentences challenged on an initial petition for collateral review. We conclude that Alleyne does not so apply. We therefore affirm the district court's denial of Butterworth's habeas petition.
Acting on an informant's tip that Butterworth and his roommate were engaged in a drug trafficking operation out of their shared apartment in Westbrook, Maine, agents searched trash bags outside of the building. The search uncovered evidence of drugs, and the agents obtained a warrant to search the apartment. Inside they seized bags of marijuana, a scale, and (most relevant for this appeal), 5.04 grams of cocaine from the inside of a soda can. Butterworth was tried and convicted of two drug trafficking counts: conspiracy to distribute and to possess five grams or more of cocaine base (count 1), and aiding and abetting the possession of five grams or more of cocaine base with intent to distribute (count 2). 21 U.S.C. § § 841(a)(1), (b)(1)(B), 846, and 18 U.S.C. § 2.
For purposes of setting the applicable mandatory minimum sentence under 21 U.S.C. § 841(b)(1)(A)(iii) (2006), the prosecutor asked the judge at the sentencing hearing to find Butterworth responsible for fifty grams or more of cocaine base, not just the 5.04 grams that the agents seized. The district court granted that request, basing its decision on witness testimony that Butterworth bragged he was earning $1,200 per night (equivalent to about fourteen grams at the going rate), and that he had been selling crack cocaine for at least two weeks before his arrest. This drug quantity finding increased the mandatory minimum sentence from ten to twenty years for each count. The trial
judge sentenced Butterworth to that twenty year minimum on each count, to run concurrently. 21 U.S.C. § 841(b)(1)(A)(iii).
Butterworth timely appealed his conviction and sentence to the First Circuit. Anticipating the position eventually adopted by the Supreme Court in Alleyne, he argued that a jury must find beyond a reasonable doubt any fact leading to the imposition of a higher mandatory minimum sentence. United States v. Butterworth, 511 F.3d 71, 76-77 (1st Cir. 2007). We rejected this argument, as we were required to do by the Supreme Court's holding in United States v. Harris, 536 U.S. 545, 566-67, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). Harris addressed the Court's earlier holding in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), which had declared that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the statutorily prescribed maximum sentence must be found by a jury beyond a reasonable doubt. Harris expressly declined to extend Apprendi's logic to mandatory minimum sentences, thus allowing judges to continue finding facts that raise mandatory minimum penalties.
Harris, 536 U.S. at 557, 568. In short, at the time of Butterworth's direct appeal (and his diligent but unsuccessful petition for certiorari), the controlling case law dictated that " so long as the applicable statutory minimum (based on the judicially found facts) [fell] below the default statutory maximum (based on the jury findings), the Sixth Amendment [was] satisfied."
Butterworth, 511 F.3d at 77 (citing United States v. Lizardo, 445 F.3d 73, 89-90 (1st Cir.), cert. denied 549 U.S. 1007, 127 S.Ct. 524, 166 L.Ed.2d 390 (2006); United States v. Goodine, 326 F.3d 26, 33 (1st Cir. 2003), cert. denied, 541 U.S. 902, 124 S.Ct. 1600, 158 L.Ed.2d 243 (2004)). Since the maximum penalty for five grams of cocaine base was forty years, 21 U.S.C. § 841(b)(1)(B) (2006), imposition of a twenty-year minimum sentence based on judicially found facts did not violate Butterworth's Sixth Amendment rights according to the law at the time he was sentenced. Id. at 77.
Six years later, in 2013, the Supreme Court overruled Harris, explaining that the " distinction between facts that increase the statutory maximum and facts that increase only the mandatory minimum" was " inconsistent with our decision in Apprendi v. New Jersey, and with the original meaning of the Sixth Amendment."
Alleyne, 133 S.Ct. at 2155 (citation omitted). Therefore, " [a]ny fact that, by law, increases the penalty for a crime is an 'element' that must be submitted to the jury and found beyond a reasonable doubt." Id.
Seeking the benefit of the Court's new interpretation of the Sixth Amendment, Butterworth promptly moved to vacate his sentence under 28 U.S.C. § 2255. The district court denied Butterworth's motion for habeas relief, but issued a certificate of appealability (" COA" ) to decide whether Alleyne is retroactively applicable. We allowed Butterworth's appeal to go forward on that issue. See Grant-Chase v. Comm'r, 145 F.3d 431, 435 (1st Cir. 1998)
(ruling that " a COA from a district judge as to an issue is itself sufficient to permit an appeal of the issue in 28 U.S.C. § § ...