[Copyrighted Material Omitted]
William M. White, Jr., with whom William M. White, Jr. & Associates was on brief, for appellant.
Jennifer H. Zacks, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Before HOWARD, STAHL, and THOMPSON, Circuit Judges.
STAHL, Circuit Judge.
Erik Harakaly pleaded guilty to conspiracy to possess with intent to distribute methamphetamine. After finding that Harakaly was responsible for a drug quantity that triggered a ten-year mandatory minimum sentence and that he was ineligible for safety-valve relief from that minimum, the district court sentenced him to ten years' imprisonment. Under the Supreme Court's subsequent decision in Alleyne v. United States, --- U.S. ----, 133 S.Ct. 2151, 2155, 186 L.Ed.2d 314 (2013), the district court erred in making the factual finding of drug quantity necessary to impose the mandatory minimum where the quantity was neither alleged in the indictment nor admitted by Harakaly at the time of his guilty plea. Nevertheless, finding the error to be harmless, and finding no merit in Harakaly's other contentions, we affirm.
I. Facts & Background
During the course of investigating Scott Ramsden for alleged drug distribution, the Massachusetts State Police and the Drug Enforcement Agency determined that
Harakaly was Ramsden's primary supplier of methamphetamine. On August 10, 2010, law enforcement officials intercepted communications between the two that indicated that Harakaly had recently sent a shipment of drugs to a courier, Edmund Levine, for delivery to Ramsden. Shortly thereafter, a Massachusetts state trooper stopped Levine's vehicle and found a substance in the trunk that was later determined to be 189.9 grams of 99.8% pure methamphetamine. Levine advised investigators that Harakaly had sent him the methamphetamine with directions to deliver it to Ramsden.
A grand jury returned a one-count indictment on September 23, 2010, charging Harakaly, Ramsden, Levine, and two other individuals with conspiracy to possess with intent to distribute, and to distribute, methamphetamine and gamma hydroxbutyric acid, in violation of 21 U.S.C. §§ 841(a)(1) and 846. A superseding indictment was returned on October 27, 2011, charging the same individuals, minus Ramsden, with conspiracy to possess with intent to distribute, and to distribute, methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846.
Neither indictment specified a drug quantity. At Harakaly's arraignment on each, the government stated that the maximum sentence he faced was twenty years' imprisonment.
On January 20, 2012, Harakaly pleaded guilty without a plea agreement. When reciting the maximum penalties, the government erroneously stated that he was subject to a maximum of life imprisonment and a ten-year mandatory minimum " as charged in Count One of the indictment." However, the government promptly clarified that, because the indictment did not specify any drug quantity, the default statutory maximum would be twenty years, see 21 U.S.C. § 841(b)(1)(C), but asserted that sufficient evidence would be presented for the court to find, by a preponderance of the evidence, that Harakaly was accountable for more than fifty grams of methamphetamine, triggering a ten-year mandatory minimum sentence, see id. § 841(b)(1)(A). When asked whether Harakaly conceded any drug quantity, defense counsel stated that he did not.
The government then summarized the evidence that it would have presented and proved beyond a reasonable doubt at trial, including: (1) Levine's admissions to investigators that Harakaly supplied the 189.9 grams of methamphetamine found in his car and that he had previously made around ten deliveries, each containing approximately five ounces of methamphetamine, to Ramsden on Harakaly's behalf, totaling approximately 1,400 grams; and (2) evidence that Harakaly was Ramsden's sole supplier of methamphetamine, and that Ramsden would send Harakaly payments, usually in the amount of $10,000, via FedEx, in exchange for methamphetamine, usually in the amount of five ounces. The court then asked Harakaly whether, as alleged by the government, he had been involved in an agreement to distribute methamphetamine, " as of yet in an undetermined quantity," through Ramsden and others. Harakaly disputed the assertion that he was Ramsden's sole supplier, but said that he otherwise agreed with the government's assertions. The court accepted his guilty plea.
Following a presentence investigation, the probation department prepared a presentence report (PSR) that estimated that Harakaly was responsible for between five and fifteen kilograms of methamphetamine, corresponding to a base offense
level of 36. After a three-level increase based on the determination that Harakaly had occupied a managerial or supervisory role in the conspiracy and a three-level decrease for acceptance of responsibility, his total offense level was 36. Combined with a criminal history category of I, Harakaly's sentencing guidelines range was 188-235 months. The report also indicated that his responsibility for more than fifty grams of methamphetamine subjected him to a ten-year mandatory minimum sentence.
Harakaly made multiple objections to the PSR, disputing, among other things: (1) the accuracy of the drug-quantity calculation, arguing that he was responsible for only 1.5 to 5 kilograms of methamphetamine; (2) the applicability of the role enhancement; (3) the constitutionality under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), of the imposition of a mandatory minimum sentence based upon a finding, by a preponderance of the evidence, of the triggering drug quantity where the quantity was neither alleged in the indictment, nor submitted to and voted on by the grand jury, nor admitted by him during the plea hearing; and (4) the applicability of the ten-year mandatory minimum, corresponding to § 841(b)(1)(A), where the government had continuously represented that his maximum sentence was twenty years, corresponding to § 841(b)(1)(C). He repeated these arguments in his sentencing memorandum and in two sentencing hearings, with the first, on August 6, 2012, focusing on drug quantity and the second, on October 10, 2012, focusing on the role enhancement.
At the first sentencing hearing, the district court rejected Harakaly's Apprendi argument, noting that, under the then-current state of law, Apprendi and its progeny applied only to facts that increased the penalty beyond the otherwise-prescribed statutory maximum. With respect to the notice problem raised by the government's repeated indication that it was proceeding under § 841(b)(1)(C), the court stated that Harakaly could move to withdraw his guilty plea if he believed it was not made intelligently— an offer that he rejected. Finally, the court suggested the possibility of holding an evidentiary hearing regarding drug quantity. At that point, after conferring with counsel, Harakaly conceded responsibility for a quantity ...