United States v. Delpriore

662 F.Supp.3d 1021

UNITED STATES of America, Plaintiff, v. Michael Angelo DELPRIORE, Jr., Defendant.

Case No. 3:18-cr-00136-SLG-MMS

United States District Court, D. Alaska

Signed March 20, 2023

A. James Klugman, Kelly A. Cavanaugh, Seth Brickey, Assistant U.S. Attorneys, U.S. Attorney's Office, Anchorage, AK, Charisse Marie Arce, Assistant U.S. Attorney, DOJ-USAO, Anchorage, AK, for Plaintiff.

ORDER RE MOTION TO STRIKE ENHANCED STATUTORY PENALTY PROVISIONS

Sharon L. Gleason, UNITED STATES DISTRICT JUDGE

Before the Court at Docket 359 is Defendant's Motion to Strike Enhanced Statutory Penalty Provisions. The Government responded in opposition to the motion at Docket 365,¹ and Defendant filed a reply at Docket 370.² At sentencing, the Court indicated it would grant the motion and proceed with sentencing. This order explains the Court's reasoning.

BACKGROUND

In 2014, Defendant Michael Delpriore was convicted in Alaska state court of Misconduct Involving a Controlled Substance in the Third Degree (MICS3) for an offense committed in May 2013.³ He was also convicted in 2009 in state court for Misconduct Involving a Controlled Substance in the Fourth Degree.⁴ In 2022, Mr. Delpriore was convicted in this case of four federal offenses involving drugs and firearms.⁵ One of those convictions—Count 1 of the First Superseding Indictment—was for "knowingly and intentionally possess[ing] with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin," in violation of 21U.S.C. §§ 841(a)(1) and (b)(1)(B).⁶ 21 U.S.C. § 841(b)(1)(B) contains an enhanced penalty provision that increases the mandatory minimum sentence to 10 years for a defendant convicted pursuant to that section if the defendant also has a prior conviction for a "serious drug felony."

Prior to the First Step Act of 2018 (FSA), § 841(b) "provided for enhanced mandatory minimums (or increased maximums) for those defendants who had a prior conviction for a 'felony drug offense.' "⁷ For enhancement under this prior scheme, "the government had to prove that the defendant had been convicted of an offense 'that prohibits or restricts conduct relating to' certain drug categories and that was punishable by imprisonment for more than one year."⁸ When the FSA was enacted, it replaced "felony drug offense" with "serious drug felony," a new term with additional elements.⁹ A "serious drug felony" is a "serious drug offense" as defined in 18 U.S.C. § 924(e)(2) and one for which (1) "the offender served a term of imprisonment of more than 12 months," and (2) "the offender's release from any term of imprisonment was within 15 years of the commencement of the instant offense."¹⁰ "When 'felony drug offense' was the operative definition, the government—in effect—had to prove only the fact of a prior felony conviction for a qualifying offense. The FSA's shift to 'serious drug felony' predicates altered the type of proof required to trigger enhanced mandatory sentences under §§ 841(b)(1)(A)-(B) . . . ."¹¹

Prior to the jury trial in this case, the Government filed a notice informing Mr. Delpriore that it was asserting that he was subject to enhanced penalties with respect to his federal drug charges due to his prior state drug convictions.¹² After Mr. Delpriore was convicted, the Government filed its Sentencing Memorandum asserting that Mr. Delpriore faced a minimum sentence of 10 years on Count 1 pursuant to 21 U.S.C. § 841(b)(1)(B) because his MICS3 state conviction was a "serious drug felony."¹³ Mr. Delpriore then filed his Motion to Strike Enhanced Statutory Penalty Provisions with respect to Count 1 alleging that, among other points, the Government had not proved to a jury that his MICS3 conviction constituted a "serious drug felony," and therefore the statutory enhancement could not apply.¹⁴

DISCUSSION

I. Requirement for Jury Finding

The First Superseding Indictment alleges that Mr. Delpriore had previously committed a "serious drug felony," the MICS3 offense, at the time he committed the offense in Count 1, possession of heroin with an intent to distribute.¹⁵ Mr. Delpriore does not dispute that he has a MICS3 conviction, but he maintains that the Government did not submit the "necessary facts" to the jury—and the jury did not find beyond a reasonable doubt—that the MICS3 offense constituted a "serious drug felony."¹⁶ Mr. Delpriore asserts that the facts of whether he "served a term of imprisonment of more than 12 months" and "was released from that term of imprisonment within 15 years of the commencement of the instant offense" constitute facts "about a prior conviction" and do not constitute "the fact of a prior conviction."¹⁷ Mr. Delpriore maintains that it would violate his Sixth Amendment right to a jury trial for the Court, and not a jury, to find the facts regarding "the length of time the defendant served in prison and the date upon which he was released," because these are facts that increase the mandatory minimum sentence and therefore are elements of the Count 1 charge that must be submitted to a jury and found beyond a reasonable doubt.¹⁸

The Government asserts that there was no need to submit these questions to the jury, because the exception of "the fact of a prior conviction" includes "issues of fact about that prior conviction, including the sentence imposed, length of time that was served, and date of release."¹⁹ The Government references 21 U.S.C. § 851, which provides that "[t]he court shall hold a hearing to determine any issues raised by the [defendant's] response which would except the person from increased punishment."

The Fifth Amendment states that no one shall be "deprived of life, liberty or property without due process of law." The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The Sixth Amendment, in conjunction with the Fifth Amendment Due Process Clause, places "the contested elements of an offense within a jury's sole purview."²⁰ "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."²¹ A federal sentencing judge "can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of."²² Recidivism, or "the fact of a prior conviction," is an "exceptional departure from" and "narrow exception to the general rule" that requires a jury, and not a judge, to make sentencing enhancement findings.²³ Almendarez-Torres v. United States,²⁴ which created this narrow exception, has been questioned by the Supreme Court but not overturned.²⁵ "To date, no Supreme Court authority has addressed whether the Almendarez-Torres recidivism exception applies in a post-FSA world, where defendants may contest, factually and legally, whether a prior conviction qualifies as a 'serious drug felony.' "²⁶

The First Step Act's definition of a "serious drug felony" incorporates the definition of a "serious drug offense" from 18 U.S.C. § 924(e)(2)(A) and also obligates the government to prove two additional facts about a prior conviction: that the defendant actually served more than one year in prison for the prior offense and that the defendant's "release from any term of imprisonment was within 15 years of the commencement of the instant offense."²⁷ It is well established that whether a particular crime constitutes a "serious drug offense" pursuant to 18 U.S.C. § 924(e)(2)(A) is a question for the Court to decide.²⁸ But the two additional factual predicates (more than one year of imprisonment and release within fifteen years) that would increase the mandatory minimum sentence are based on events occurring only after the conviction. By definition, they fall outside the narrow "fact of conviction."²⁹ Because such facts, if proven, would "increase the mandatory minimum sentence," they are "elements and must be submitted to the jury and found beyond a reasonable doubt."³⁰

The Court notes that the Department of Justice's (DOJ) own policy in 2019 supports this holding. On June 3, 2019, the Executive Office for United States Attorneys issued a memorandum regarding the First Step Act and specifically stated that the two additional factual predicates should be sent to the jury:

In the second phase, the jury should be issued a special verdict form asking it to find, beyond a reasonable doubt, two facts for each "serious drug felony" predicate: (1) that the defendant served more than 12 months in prison for the predicate conviction; and (2) that he was released from serving any term of imprisonment for that offense within 15 years of the commencement of the underlying drug-trafficking offense (identified in the special verdict form by count number).³¹

While the Court is unaware if this policy has since been rescinded or if it is still the DOJ's stance, DOJ's interpretation of the Sixth Amendment interplay with the FSA is persuasive.

In United States v. Fields, the Eastern District of Kentucky found that a jury, and not the court, is required to make the findings about the length of a defendant's prior term of imprisonment and the 15-year release window.³² The court determined that "[t]hese post-conviction factual criteria, which raise the sentencing floor and/or ceiling, are for the jury alone to evaluate."³³

On appeal, the Sixth Circuit stated in dicta that the lower court's finding that the Sixth Amendment would require a jury to decide the two factual predicates was "intuitive" and "persuasive."³⁴ The Circuit Court noted that the "Almendarez-Torres exception [is] 'narrow' and appl[ies] only to the fact of conviction, and the First Step Act's incarceration facts extend beyond the fact of conviction."³⁵ Quoting Supreme Court precedent, the Sixth Circuit added that while " 'a prior conviction must itself have been established through procedures...