Harris, William J. v. U.S. (06/24/2002)

Questions presented: Given that a finding of "brandishing" as used in 18 U.S.C. sec. 924(c)(1)(A), results in an increased mandatory minimum sentence, must the fact of "brandishing" be alleged in the indictment and proved beyond a reasonable doubt?

BY NIKI VRSANSKY, MEDILL NEWS SERVICE

An undercover police officer accompanied by a confidential informant walked into William J. Harriss pawn shop in North Carolina on April 29, 1999. After talking with Harris, the officer purchased a small quantity of marijuana. He left, only to return the next day to purchase an additional 114 grams of marijuana.

On both occasions the officer noticed that Harris was carrying a gun in a hip holster. And, according to testimony from the officer, Harris wasnt looking to keep his gun a secret.

The officer said Harris offered it as part of the conversation, saying that it "was an outlawed firearm because it had a high-capacity magazine," and bragging that his homemade bullets could pierce a police officers armored jacket.

Harriss gun, however, eventually became a much bigger topic of conversation.

After he was arrested and charged with selling marijuana and possessing a firearm, a federal court found Harris guilty of carrying a handgun in relation to a drug trafficking offense.

The judge, citing a federal statute that creates a minimum sentencing term for "brandishing" a firearm while committing a crime, determined that Harris had brandished the gun and sentenced him to seven years in prison.

Harris appealed, arguing that it is not up to the judge to decide if someone displayed a gun while committing an offense. Harris argued that by taking that decision out of the hands of the jury, he was denied due process and a right to trial by jury.

If the judge had not used the brandishing clause, though, Harris could have received the same sentence because the maximum sentence for the crime he committed was more than seven years.

On March 20, 2001, a unanimous 4th Circuit Court of Appeals panel affirmed, taking into account the U.S. Supreme Courts surprising decision a year earlier in Apprendi v. U.S., which held by a 5-4 vote that facts, other than prior convictions, which increase the penalty for a crime beyond the statutory maximum must be determined beyond a reasonable doubt by a jury, and not by a judge.

The appeals court distinguished Apprendi, though, noting that here, although the sentencing court's finding that Harris "brandished" a firearm triggered a mandatory minimum sentence, the seven years was not greater than the prescribed statutory maximum. "In fact, the sentencing judge noted that if we reversed his brandishing ruling, he might nonetheless exercise his discretion and apply a seven-year prison term upon re-sentencing," the appeals opinion stated.

On Dec. 10, 2001, the U.S. Supreme Court granted certiorari in the case, limiting review to the question presented above.

David Bergschneider, legal director for the Illinois Appellate Defender, said there is no telling what the Supreme Court will decide.

"The Apprendi case was a real shift in the Courts attitude," he said. "I have no prediction where they'll go in this case."

He added that comparing the Apprendi case to the Harris case is like comparing apples to oranges.

According to Bergschneider, the question in the Harris case deals with mandatory minimum sentencing, unlike the Apprendi case, which dealt with maximum sentences.

"This is a whole new area of sentencing," he said. "It's really been uncharted by the courts until now."

He said the Harris case has implications in a number of sentencing laws throughout the nation.

In Illinois, for example, Bergschneider said one application of the Harris case would be for a controlled substance statute. Currently if a person is being sentenced for drug possession, a judge would rule on the amount of drugs possessed not a jury which determines the mandatory minimum sentence.

On June 24, 2002, a divided Court held 5-4 that the government can seek and get an increased mandatory minimum sentence for someone convicted of "brandishing" a weapon during a drug trafficking crime without alleging it in the indictment or proving it beyond a reasonable doubt.

Justice Anthony Kennedy wrote the Court's lead opinion, with Justice Sandra Day O'Connor and Stephen Breyer adding concurring opinions. Justices Clarence Thomas, John Paul Stevens, David Souter, and Ruth Bader Ginsburg dissented.