The trial judge was correct in imposing the ten-year mandatory minimum against Gomez, federal lawyers assert, because the case against him was a conspiracy-based case in which the quantities of drugs from different transactions could lawfully be counted. And Gomez can't now complain about "constructive amendments" to the indictment against him if all he is complaining about is the sentence (and not the conviction) that ultimately was imposed upon him.

Here is the link to the government's brief opposing certiorari in this case. It is a wordy tribute to form over substance, seeking as it does on virtually every page to diminish the significance of the Court's ruling in Alleyne. Surely, the Attorney General does not read every brief, and especially every brief filed by government attorneys opposing certiorari at the Supreme Court, but if he did he likely would be mortified at the gap that exists between the sentencing reform he heralds on the stump and the harsh sentencing policies his lawyers seek to justify in court.

The Defendant's Reply

The final word to the justices goes to the party seeking review. And the first paragraph of Gomez's reply (here is the link) sums it up best:

Under the approach to harmless error advocated by the government and applied by the First Circuit, prosecutors may ignore constitutional charging requirements, shift theories of criminality as their cases evolve, and threaten defendants who refuse to plead guilty with uncharged mandatory minimums – so long as somewhere along the way they give the defendants “fair notice” of their intent to seek the new, aggravated penalties. Judges may also decide offense elements that were disputed by the parties at trial but not presented to the jury. This approach raises fundamental questions about the role of grand juries and petit juries in our constitutional system, calls into question the validity of several of this Court’s Fifth and Sixth Amendment rulings, and implicates longstanding circuit splits. The government’s attempt to discourage review through a variety of immaterial distinctions, mischaracterizations of circuit case law, and reversals of prior positions is unpersuasive.

At his trial, defense attorneys say, Gomez "did contest his responsibility for the uncharged drug quantity" that came from that Florida deal—a deal in which no drugs were exchanged, in which federal agents were the "sellers" of the drugs, and in which no arrests were made by law enforcement agents following the demise of the transaction. There is no possible way, given these circumstances, that prosecutors can assert the error here was constitutionally "harmless" because a reasonable jury (and a reasonable grand jury for that matter) could have found Gomez not culpable for the failed Florida drug bust.

Postscript

The government's positions in this case—both the tactics employed by Gomez's prosecutors and the arguments made now by federal attorneys—are utterly inconsistent with the much-publicized policies the Attorney General himself promulgated this summer. In August, for example, Eric Holder sent a memo to his line attorneys in which he cited Alleyne and declared that "prosecutors must ensure that the charging document includes those elements of the crime that trigger the statutory minimum penalty." Then, in September, the Attorney General said this:

Some federal drug statutes that mandate inflexible sentences – regardless of the individual conduct at issue in a particular case – do not serve public safety when they’re applied indiscriminately. Because they oftentimes generate unfairly long sentences, they breed disrespect for the system. Used inappropriately, they can be counterproductive. And they have had an unmistakable destabilizing effect on particular communities – largely poor and of color. Last month, I took action to change this – by modifying the Justice Department’s charging policies so that people charged with certain low-level, nonviolent drug offenses – individuals without ties to large-scale organizations, gangs, or cartels – will no longer be charged with offenses that impose draconian mandatory minimum sentences. Instead, they will be charged with offenses for which the appropriate sentences are better suited to their individual conduct. I am pleased to announce today that the Department has issued new guidance to apply our updated charging policy not only to new matters but also to pending cases where the defendant was charged before the policy was issued but is still awaiting adjudication of guilt.

But this is not remotely what the Justice Department has done in the case of Clarvee Gomez. Even after the Court's mandate in Alleyne, even after the Attorney General's pointed memorandum, even after all the public speeches about sentencing reform, federal attorneys still are trying to argue that the result in the Gomez case is both fair and constitutional. It is neither and the Supreme Court ought to say so—or at least expose the incoherence and hypocrisy of the government's position. If true sentencing reform is going to come it's going to come one case at a time—and this is as good a case as any to start.