          United States Court of Appeals
                     For the First Circuit

No. 12-2289

                    UNITED STATES OF AMERICA,

                            Appellee,

                               v.

                   MAXIMO LARYI HERRERRA PENA,

                      Defendant, Appellant.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Nathaniel M. Gorton, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
               Stahl and Kayatta, Circuit Judges.



     Robert L. Sheketoff for appellant.
     Jennifer Hay Zacks, Assistant U.S. Attorney, with whom Carmen
M. Ortiz, United States Attorney, was on brief, for appellee.


                        February 5, 2014
             LYNCH, Chief Judge.      In federal prosecutions, under the

requirements of Alleyne v. United States, 133 S. Ct. 2151, 2158

(2013), if the distribution of drugs is proven beyond a reasonable

doubt to a jury to have resulted in a death, a defendant will face

a 20-year mandatory minimum sentence. See 21 U.S.C. § 841(b). But

if the government does not meet that burden before conviction, a

defendant will face a different mandatory minimum -- either 10

years, 5 years, or no minimum, depending on the drug type and

quantity.    See 21 U.S.C. § 841(b)(1)(A), (B), (C).              When, as here,

there is Alleyne error resulting in the imposition of a mandatory

minimum sentence based on judicial findings on a lesser standard of

proof,   the    circuit     courts   usually     have    merely   remanded   for

resentencing by the district courts.

             The prosecution here asks us to depart from that usual

practice.      We are asked, after an Alleyne error and following a

conviction based on a straight guilty plea to drug dealing but not

to "death resulting," to permit the prosecution on remand to

empanel a sentencing jury to allow the government to now prove

beyond   a     reasonable    doubt   that    a   death    resulted    from   the

defendant's drug dealing.            Because Alleyne was decided after

sentencing and while the case was on appeal, the situation in this

case will not frequently occur.             We hold that the government's

proposed course of action is foreclosed on the facts of this case,




                                      -2-
is unfair, and would raise troubling constitutional questions that

can be avoided by denying the government's request.

                                           I.

               Defendant Maximo Laryi Herrerra Pena was a co-leader,

along with Joel Liceaga, of a heroin trafficking ring that operated

in Boston and the South Shore of Massachusetts. In 2009-2010, Pena

was directly linked to drug transactions involving a total of more

than 1.6 kilograms of heroin.

               On July 30, 2009, Pena's organization sold heroin to

Joshua        Johnson    and     David    Geoffrion,   leaders     of   a   heroin

distribution business on Cape Cod.               Later that day, Johnson and

Geoffrion sold a bag of heroin to Chelsea Joslin, a 20-year-old,

for $50.        The government argues that the bag of heroin Geoffrion

sold     to     Joslin    came     from    the   heroin   bought    from    Pena's

organization.       The next day, Joslin was found dead in her Cape Cod

home, with a needle, a syringe, and a plastic baggie with heroin

residue nearby.          Joslin had also been drinking and was taking a

prescription drug, and autopsy results showed the presence of all

three substances in her blood.

               Pena was indicted on December 23, 2010, along with

Liceaga, Geoffrion, and Victor Manon, a drug runner from Pena and

Liceaga's organization.            The indictment alleged two counts: (1)

conspiracy to distribute and to possess with intent to distribute

100 grams or more of heroin, and (2) possession of heroin with


                                           -3-
intent to distribute, distribution of heroin, and aiding and

abetting the same.       Both counts alleged violations of 21 U.S.C.

§ 841(a)(1), which prohibits drug distribution.

           The indictment further alleged for both counts that

"death and serious bodily injury resulted from the use of such

substance" based on Joslin's death.           An appropriate finding of

"death resulting" increases the sentence on each count to a

mandatory minimum of twenty years and a maximum of life.                See 21

U.S.C. § 841(b)(1)(B), (C).1

           Pena initially pled not guilty to both charges.                   On

November   30,   2011,   Pena   filed   a   motion    arguing   that    "death

resulting" was an element of the offenses and that as a result, the

district court could not consider the mandatory minimum at a

sentencing hearing unless the "death resulting" element was first

found by a jury beyond a reasonable doubt.           The government opposed

the motion, arguing that "death resulting" was a not a necessary

element of the indictment but a sentencing factor, which could

properly   be    determined     at   sentencing      by   the   court   on    a

preponderance of the evidence standard.           The government's choice

was surely deliberate: it wanted to show "death resulting" under a



     1
        Count 1 cited 21 U.S.C. § 841(b)(1)(B), which ordinarily
carries a mandatory minimum of five years and a maximum of forty
years, while Count 2 cited § 841(b)(1)(C), which ordinarily has no
minimum and a maximum of twenty years.      So, without any "death
resulting" allegations, there would be no 20-year mandatory minimum
on either charge.

                                     -4-
far easier standard of proof and to prove it to a judge, not a

jury.2

          The day after the government filed its opposition, Pena

filed a response.   Pena's response stated:

          The defendant continues to maintain that
          punishment based on a "death resulting"
          finding must be premised on a jury conviction
          of this element on proof beyond a reasonable
          doubt. However, the defendant is willing to
          accept the government's position that the
          Superseding Indictment does not include "death
          resulting" as an element. Given that view of
          the Superseding Indictment, the defendant is
          prepared to plead guilty to both counts
          forthwith and requests that the Court schedule
          a change of plea hearing.

(emphasis added).   The response was explicit that the plea was

being entered in reliance on the prosecution's position that "death

resulting" was not an element of the offense.    There was no plea

agreement with the prosecution.    Nor was there ever any order or

agreement to bifurcate the proceedings.

          The district court scheduled a change of plea hearing,

which began on January 27, 2012.   After a continuance, the hearing

was concluded on February 9, 2012.    At the hearing, Pena admitted

all of the facts relevant to each count other than the "death

resulting" allegations.   As to Count 2, Pena admitted only that he

assisted in or arranged for the supply of heroin to Johnson on July


     2
        In a footnote, the government did argue that it retained
the option to prove "death resulting" to a jury if it wanted a
higher maximum sentence. It did not argue that it retained any
such option to increase a minimum sentence.

                                -5-
30, 2009.    In Pena's view, it was Liceaga's heroin, not his, and he

aided and abetted Liceaga in getting the heroin to Johnson.                  Pena

also argued that the 20-year mandatory minimum could not apply

without a jury finding on "death resulting."             The government made

no objection to acceptance of the defendant's plea, even in light

of the continued denial of the "death resulting" allegations.

             The district court accepted the guilty plea. Pena argued

that the government's representation that death resulting was not

charged in the indictment meant that the government had waived the

opportunity     to    seek   the   death-resulting       enhancement.          The

prosecution again did not seek to reserve any right to use a

sentencing     jury    to    increase    the   minimum    sentence      if     the

government's     assessment     that     "death   resulting"   was      only    a

sentencing factor proved incorrect.

             Pena also informed the court that if the court decided

"death resulting" was a sentencing factor, he would probably seek

to have an evidentiary hearing and to cross-examine witnesses. The

defendant's incarceration continued.

             On May 8, 2012, in light of the government's position,

Pena filed a motion requesting an evidentiary hearing on the "death

resulting" issue before his sentencing hearing.            On July 18, 2012,

the district court issued a memorandum opinion rejecting Pena's

November 30, 2011 pre-plea motion arguing that the mandatory

minimum could not apply unless the "death resulting" element was


                                        -6-
tried before a jury.       See United States v. Pena, No. 10-10017-NMG,

2012 WL 2952771 (D. Mass. July 18, 2012).                The court rejected

Pena's argument, concluding that "death resulting" was a sentencing

factor.     It then turned to Pena's argument from his May 8 motion

and granted his request for an evidentiary hearing.

            The court held the evidentiary hearing on the "death

resulting" issue on July 19, 2012.          After examining the witnesses,

Pena's counsel raised two primary lines of argument at the hearing.

The first was whether the autopsy by Dr. Henry Nields established

that heroin actually caused Joslin's death, given that there were

questions surrounding the reliability (for chemistry purposes) of

the source of the victim's blood sample and given Dr. Nields's

testimony    that    he    could   not   say    with   certainty    that     the

prescription drug and alcohol found in her system could not have

caused the death even without the heroin.              The second, developed

through   counsel's       cross-examinations,    was     the   credibility   of

Johnson, who had an alternate supply of heroin and was himself a

heroin user (and had used heroin the day he supplied it to Joslin).

Pena challenged the credibility of Johnson's testimony that, among

other things, he had not mixed his heroin from different sources

and that he carried over no inventory of heroin but got a fresh

supply daily.

            In   a   carefully     detailed    written    order,   the     court

concluded that the government had proven by a preponderance of the


                                      -7-
evidence    that    Joslin's      death    did    result     from   Pena's    heroin

distribution. See United States v. Geoffrion, 910 F. Supp. 2d 337,

343 (D. Mass. 2012).         The court found the testimony of Dr. Nields

to be credible and that it was "more likely than not" that "Joslin

died from accute intoxication by the combined effects of ethanol,

opiates and citalopram, i.e., that the heroin used played a

significant causal role in her death."                  Id. at 342.3      The court

also found that the evidence established by a preponderance that

the heroin Joslin used was originally supplied by Pena or by other

members of his conspiracy.          Id.

            The    Supreme    Court    granted      certiorari      in   Alleyne    on

October 5, 2012.         The petition had been filed on March 14, 2012.

The   parties     were    aware   of   the      grant   of   certiorari      and   the

government discussed it at the sentencing hearing the next week.

            On October 11, 2012, the district court held a sentencing

hearing.4   Based on calculations in the presentencing report, Pena


      3
        Under the Supreme Court's recent decision in Burrage v.
United States, 134 S. Ct. ___ (2014), this causation determination
was insufficient to support a "death resulting" conviction. The
Court held in Burrage that the "death resulting" enhancement
requires a but-for causal relationship between the drugs and the
victim's death. Id. at ___ (slip op. at 9). Under Burrage, the
drug use must be an "independently sufficient cause" of the
victim's death.   Id.   The district court, however, limited its
finding to the conclusion that the heroin "played a significant
causal role" in a death resulting from the "combined" cocktail of
"ethanol, opiates and citalopram." Geoffrion, 910 F. Supp. 2d at
342.
      4
       Apparently neither party requested a delay in sentencing in
light of the grant of certiorari in Alleyne.

                                          -8-
faced a base offense level of 38 under the Sentencing Guidelines if

"death resulting" applied to his conviction, and a base offense

level of 32 if "death resulting" was not established.                  After

applying    relevant   increases   and    decreases,    these    alternative

offense levels produced Guidelines ranges of 292-365 months or 151-

188 months, respectively.     At the hearing, Pena continued to argue

that the higher range based on "death resulting" could not apply

because the "death resulting" element had not been proven to a jury

beyond a reasonable doubt and his plea did not admit to it.

            The court rejected Pena's argument and, relying on its

findings,    used   the   higher   Guidelines   range    based    on   "death

resulting."    It applied the "death resulting" increase to both

counts, triggering a mandatory minimum of 20 years.             Based on the

higher Guidelines range and the mandatory minimum, it departed

downward to a final sentence of 252 months (21 years) for Count 1,

to be served concurrently with the statutory maximum sentence of 20

years for the aiding and abetting plea on Count 2.5               The court

described this sentence as "longer than the mandatory minimum

sentence for a drug offense resulting in death" while still "about

15% below the low end of the applicable guideline range."                  It

explained that, "although the defendant put in motion a tragic set


     5
        Because "death resulting" and drug quantity had not been
found by a jury on Count 2, under Apprendi v. New Jersey, 530 U.S.
466 (2000), they could not trigger an increase in the maximum
sentence. As a result, 20 years was both the mandatory minimum and
statutory maximum sentence for Count 2.

                                    -9-
of events that resulted in the death of a young woman, a 21-year

sentence is sufficient but not greater than necessary under these

specific circumstances."

          During this sentencing hearing, the prosecution requested

that, if the court imposed a sentence above the mandatory minimum,

it issue an alternative holding explaining that it would have done

so at its discretion regardless of the mandatory minimum based on

"death resulting." Defense counsel objected, saying the government

had chosen its constitutional path and the time to make an upward

departure argument would be at a resentencing if the Supreme

Court's ultimate decision on the Sixth Amendment constitutional

issue were to require one.   The district court recognized that the

prosecution was making the request and engaged the government in a

lengthy colloquy about it, but ultimately declined to issue an

alternative holding.   Pena appealed.

          Alleyne was decided on June 17, 2013, while Pena's appeal

was pending.   In Alleyne, the Supreme Court held that the Sixth

Amendment right to a jury requires that any facts which would

increase a mandatory minimum sentence are "element[s] of a distinct

and aggravated crime" that must be found by a jury beyond a

reasonable doubt.   133 S. Ct. at 2162-63.

          Pena now argues, and the government agrees, that his

sentence was imposed in violation of Alleyne.    The parties agree

that the sentence must be vacated and the case remanded.   But they


                                -10-
have different views as to whether on remand a sentencing jury may

be empaneled.

                                      II.

            Some background on the decision in Alleyne is helpful to

understand    the   issue   on   appeal      and    the   different    claims      of

fairness.

            Alleyne is the most recent in a series of Supreme Court

sentencing cases concerning defendants' Sixth Amendment rights to

trial by jury, beginning in 2000 with Apprendi v. New Jersey, 530

U.S. 466 (2000).     In Apprendi, the defendant had pled guilty to,

inter alia, an offense carrying a sentence of five to ten years.

Id. at 470.     After the guilty plea was entered, the prosecution

sought an enhancement under a hate crime law.                The district court

held   an   evidentiary     hearing    and    the    court    determined      on   a

preponderance of the evidence standard that the defendant had met

the requirements of the hate crime statute.                   Id. at 470-71.

Accordingly, the court sentenced him to 12 years' imprisonment on

that count, two years above the ordinary maximum for that offense

without the hate crime enhancement.            Id. at 471.

            The Supreme Court reversed in a 5-4 decision.                          It

articulated a distinction between "elements" of an offense, which

the constitutional guarantee of the right to a trial by jury

requires to be found by a jury beyond a reasonable doubt, and

"sentencing   factors,"     which     could   be    found    by   a   judge   on   a


                                      -11-
preponderance     standard.      Id.     at   485-86.     Other      than   prior

convictions, it held, "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."                       Id. at 490

(emphasis added).

             Two years later, in Harris v. United States, 536 U.S. 545

(2002), the Court distinguished increases to mandatory minimums

from the increases to sentencing range maximums it had considered

in Apprendi. In Harris, the defendant had been convicted of a drug

trafficking     crime      involving    a     firearm.        Id.    at   550-51.

"[P]ossess[ing]" a firearm during a drug trafficking crime would

trigger a five-year mandatory minimum; the minimum would increase

to seven years for "brandish[ing]" the firearm during the crime.

Id. at 551 (quoting 18 U.S.C. § 924(c)(1)(A)).            Based on a finding

on a preponderance of the evidence standard, the district court

determined    that   the    defendant       had   brandished    a    firearm   and

sentenced him accordingly.         Id.        In another 5-4 decision, the

Supreme Court affirmed.         The Court held that factors triggering

mandatory    minimums   "need    not    be    alleged    in    the   indictment,

submitted to the jury, or proved beyond a reasonable doubt."                   Id.

at 568. Justice Breyer, the fifth vote in the majority, recognized

that Harris and Apprendi were not "easily distinguish[able]" and

explained that he "cannot agree with the plurality's opinion

insofar as it finds such a distinction."             Id. at 569 (Breyer, J.,


                                       -12-
concurring in part and concurring in the judgment).                He went on to

explain   that    he   was     joining    with   the   plurality      because   he

"continue[d] to believe" that Apprendi was wrongly decided, and

that judges should be free to go above both statutory maximums and

mandatory minimums without a jury finding.             Id. at 569-70.

           In    2010,   the    Court    again   discussed     the    distinction

between   sentencing     factors    and     elements   in    United    States   v.

O'Brien, 560 U.S. 218 (2010), in the context of the same firearms

provision that had been at issue in Harris.6                O'Brien's unanimous

holding was limited to the narrow conclusion that whether a firearm

was a machinegun -- a fact that determined mandatory minimums --

was an element of the offense.           Id. at 221, 235.     In a concurrence,

however, Justice Stevens observed that "[t]he unanimity of our

decision today does not imply that McMillan [v. Pennsylvania, 477

U.S. 79 (1986), and its successor case Harris] is safe from a

direct challenge to its foundation."              Id. at 240 (Stevens, J.,

concurring).     He articulated his view that the "reluctant Apprendi

dissenter" who had completed the bare majority in Harris -- that

is, Justice Breyer -- "may no longer be reluctant."                  Id. at 239.

           The direct challenge to which Justice Stevens referred

arrived in Alleyne.      There, the verdict form allowed the jury to



     6
       The Court had also decided another strand of Apprendi-based
cases in 2004 and 2005 with Blakely v. Washington, 542 U.S. 296
(2004), and United States v. Booker, 543 U.S. 220 (2005), which
rendered the federal Sentencing Guidelines advisory.

                                        -13-
find that a firearm had been "[u]sed or carried" or "[b]randished"

under the same firearms provision as Harris and O'Brien.           The jury

found the defendant guilty of "carr[ying]" a firearm but declined

to make a finding of brandishing.        Alleyne, 133 S. Ct. at 2155-56.

The trial judge sentenced the defendant based on a higher mandatory

minimum triggered by the judge's finding by a preponderance of the

evidence that the defendant had "brandished" the weapon.            Id. at

2156.     The Supreme Court reversed.       In a 5-4 decision, the Court

held that "the principle applied in Apprendi applies with equal

force   to    facts   increasing   the   mandatory   minimum,"   overruling

Harris.      Id. at 2160.   The Court emphasized that these facts were

elements that "necessarily form[] constituent part[s] of a new

offense," or, put differently, were "element[s] of a separate,

aggravated offense."        Id. at 2162.        As a result, the Court

explained, those aggravating facts must "be submitted to the jury

and found beyond a reasonable doubt."         Id. at 2163.

                                    III.

              The Alleyne rule applies to cases pending on direct

appeal at the time it was decided.         United States v. Harakaly, 734

F.3d 88, 94 n.4 (1st Cir. 2013).           It is clear there was Alleyne

error here.      See Burrage v. United States, 134 S. Ct. ___, ___

(2014) ("[T]he 'death results' enhancement . . . is an element that

must be submitted to the jury and found beyond a reasonable doubt."

(citing Alleyne, 133 S. Ct. at 2162-63)). Since Alleyne errors are


                                    -14-
of   a   constitutional          dimension   and    Pena's      claim   of   error   is

preserved, "the government must prove that the error was harmless

beyond a reasonable doubt."               Harakaly, 734 F.3d at 95 (quoting

United States v. Pérez-Ruiz, 353 F.3d 1, 17 (1st Cir. 2003))

(internal quotation mark omitted).

               The government, to its credit, concedes that the Alleyne

error here is not harmless, and rightly so: without a proper

finding of "death resulting" by a jury, Pena would have been

subjected to a lower sentencing range.                It is also clear that the

Alleyne error does not vacate the conviction, established by Pena's

guilty plea, on the drug charges.                  See United States v. Yeje-

Cabrera, 430 F.3d 1, 12-13 (1st Cir. 2005).

                                          IV.

               There    is   little     precedent    on    the    precise    question

presented here.         Both parties resort to broad principles.

               Pena argues that we must remand the case to the district

court    for    it     to   do   the   resentencing,      and    that   empaneling    a

sentencing jury would be improper for several reasons. First, Pena

argues resentencing must be based on the elements of the crime to

which he actually pled guilty. He emphasizes that he did not plead

to "death resulting." The prosecution, he notes, did not object to

this more limited plea, and the court accepted the plea.                      He also

says he relied on the government's position in entering the plea.

Pena says that the guilty plea has changed his pre-plea situation


                                          -15-
in many ways and that the sentencing jury procedure the government

seeks would unfairly favor the government. At no time did he agree

to bifurcating the guilt stage from the sentencing proceedings, and

there was no order so bifurcating proceedings. In addition, in his

reply brief, Pena argues the government's procedure would violate

his Fifth Amendment double jeopardy rights, citing Ohio v. Johnson,

467 U.S. 493, 501 (1984).   We discuss the double jeopardy concerns

below.

          The government argues that fairness requires it be given

a chance to try again to prove "death resulting," this time to the

correct decisionmaker, the jury -- but only a "sentencing" jury.

It argues it should not be "penalized" for making the wrong guess

on where the Supreme Court would come out on this issue.   It points

out that "[w]hile the [empaneling] of a sentencing jury is a

somewhat unusual procedure, it is far from unprecedented."       It

notes that the question of guilt is often bifurcated from the

question of criminal forfeiture, citing United States v. Keene, 341

F.3d 78, 81 (1st Cir. 2003), and United States v. DesMarais, 938

F.2d 347, 349-50 (1st Cir. 1991).   Likewise, it notes that capital

cases are routinely bifurcated into a guilt phase and a sentencing

phase, citing Sampson v. United States, 724 F.3d 150, 168 (1st Cir.

2013).




                                -16-
                                 A.

          We begin with common ground.    A sentence must be based

upon the crime of conviction.   See Alleyne, 133 S. Ct. at 2162 ("It

is obvious, for example, that a defendant could not be convicted

and sentenced for assault, if the jury only finds the facts for

larceny . . . .").    The only conviction here results from Pena's

guilty plea.7     It is also common ground that the government's

request is unusual, and the ordinary practice is to remand to the

district court for the judge to engage in resentencing. And unlike

with capital cases, see 18 U.S.C. § 3593(b), the parties here have

identified no specific statutory authorization for empaneling a

sentencing jury on remand under these facts.

          The government argues that its position on a sentencing

jury is supported by opinions of the Third, Sixth, Seventh, and

Ninth Circuits, and one district court, in which those courts

approved the use of sentencing juries to remedy sentencing errors

after Apprendi.   The government cites United States v. Booker, 375

F.3d 508, 514 (7th Cir. 2004), aff'd, 543 U.S. 220 (2005); United

States v. Henry, 282 F.3d 242, 253 (3d Cir. 2002) (conviction based

on guilty plea); In re Figueroa, 463 F. App'x 99, 100 (3d Cir.

2012); United States v. Montiel-Sanchez, 171 F. App'x 599, 600 (9th


     7
        Consideration of other properly proven relevant conduct,
including other crimes, is appropriate at the sentencing phase,
see, e.g., United States v. Watts, 519 U.S. 148, 149 (1997) (per
curiam) (allowing consideration of acquitted conduct when properly
proven).

                                -17-
Cir. 2006); United States v. Cooney, 26 F. App'x 513, 529 (6th Cir.

2002);   and    Figueroa      v.      United   States,     2013    WL   499473,   No.

7:13CV00038, at *1 (W.D. Va. Feb. 8, 2013).8                   We briefly discuss

these cases, which arose in circumstances different from those

presented here.         We think the government's other cases are not

adequate to warrant a sentencing jury here.

           The most serious discussion of the sentencing jury issue

is by Judge Posner in the Booker case, which arose in a different

context.       There,    Judge     Posner      predicted    that    the   Sentencing

Guidelines     as   applied      in    that    case   would    violate    the   Sixth

Amendment as interpreted in Blakely v. Washington, 542 U.S. 296

(2004). The court did not rule on whether the mandatory Guidelines

remained valid but ruled that if they did, "the judge can use a

sentencing jury."       Booker, 375 F.3d at 515.9             In this context, the

Seventh Circuit concluded that the defendant had a right to have a

jury determine both the quantity of the drugs he possessed and the



     8
        The government cites a published Ninth Circuit opinion,
United States v. Ameline, 376 F.3d 967 (9th Cir. 2004).      This
opinion was withdrawn and replaced by another, United States v.
Ameline, 400 F.3d 646 (9th Cir. 2005), which did not comment on
whether empaneling a sentencing jury would be proper on remand.
     9
        Judge Posner, in that context, also commented:
     There is no novelty in a separate jury trial with regard
     to the sentence, just as there is no novelty in a
     bifurcated jury trial, in which the jury first determines
     liability and then, if and only if it finds liability,
     determines damages. Separate hearings before a jury on
     the issue of sentence is the norm in capital cases.
Booker, 375 F.3d at 514.

                                         -18-
facts underlying the determination that he obstructed justice,

unless the parties agreed on a sentence which did not require

judicial factfinding.10

          More importantly, Judge Posner anticipated some of the

problems inherent in the government's request in this case, as we

discuss further below.     As Judge Posner explained:

          Of course[, the sentencing jury] will not work
          if the facts that the government would seek to
          establish in the sentencing hearing are
          elements of a statutory offense, for they
          would then have to be alleged in the
          indictment, and to re-indict at this stage
          would present a double-jeopardy issue. We can
          hardly attempt to resolve such issues on this
          appeal; the parties have not briefed or argued
          them.

Booker, 375 F.3d at 514.    Although the indictment here did include

the "death resulting" allegations, from defendant's point of view,

the prosecution abandoned those allegations in the indictment when

it took the position that they were not elements of the crime.

          The   unpublished     Ninth   Circuit   case   is   readily

distinguishable on its facts, as it did not involve any issue of

the district court's sentencing authority, but rather of the

court's refusal to allow the defendant to present certain evidence

during the sentencing phase of an already bifurcated jury trial.

Montiel-Sanchez, 171 F. App'x at 600.        The unpublished Third



     10
        The Supreme Court ultimately handled the matter differently
than predicted, rendering the Guidelines system advisory, in
Justice Breyer's opinion in Booker. See Booker, 543 U.S. at 245.

                                 -19-
Circuit case did not comment on the validity of the sentencing jury

that had been empaneled, but merely held that the "extraordinary"

writ of prohibition was an improper vehicle for challenging the

sentence.     In   re   Figueroa,   463    F.   App'x    at    100.      And   the

unpublished Sixth Circuit case did not require the district court

on remand to empanel a sentencing jury, but merely acknowledged

that it was possible to do so and that other options also existed.

Cooney, 26 F. App'x at 529.       What remains is a single Third Circuit

case,   United   States    v.   Henry.     In   Henry,   the    defendant      had

explicitly requested that the district court empanel a sentencing

jury after Apprendi was decided, before his sentencing.                 282 F.3d

at 246.   The Sixth Amendment right belongs to the defendant.                  See

U.S. Const. Amend. VI ("In all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an impartial

jury . . . ." (emphasis added)); Gannett Co. v. DePasquale, 443

U.S. 368, 383 (1979) (explaining that Sixth Amendment public trial

right belongs to defendant, and citing as analogous the Sixth

Amendment rights to a jury trial and a speedy trial).                 Here, it is

the defendant who opposes such a jury.

            Alleyne suggests the answer to our problem, but it does

not face this problem head-on, as our precise issue was not

presented. The Supreme Court in Alleyne remanded "for resentencing

consistent with the jury's verdict," which did not include the

aggravating factor.       133 S. Ct. at 2164.     Admittedly, unlike here,


                                    -20-
the prosecution in Alleyne did ask the jury to find that the

firearm had been brandished and the jury declined to do so.                  But

that difference does not help the government's position here.

           The Alleyne Court also determined that the aggravating

factor -- "brandishing" a firearm -- constituted an element of a

"separate, aggravated" crime and that the mandatory minimum it

triggered could not be imposed without a finding on proof beyond a

reasonable doubt.    See id. at 2162.         There is no dispute that the

"death resulting" here should similarly be viewed as an element of

a separate crime.     Pena has not been convicted of this separate

crime, but only of the crimes for which he has entered and the

district court has accepted a guilty plea. An accepted guilty plea

is a conviction and, like a jury verdict, is conclusive. Kercheval

v. United States, 274 U.S. 220, 223 (1927).           Moreover, the Court's

opinion in Alleyne did not turn on the jury's findings on its

verdict form, but on the fact that, in violation of the defendant's

Sixth   Amendment   rights,   it   was      the   judge   who   had   made   the

"brandishing" finding on a lesser standard of proof that led to the

higher mandatory minimum.

           Decisions of the Courts of Appeals after Alleyne have

remanded for resentencing by the court.            We are not aware of any

court that has been confronted with facts analogous to those here.

But in at least nine circuit court cases that have found reversible

Alleyne   error,    the   sentence    was     vacated     and   remanded     for


                                     -21-
resentencing by the district judge.11    We are aware of no case, and

the parties have cited none, remanding for use of a sentencing jury

after a reversible Alleyne error.

          Post-Apprendi   cases    are   also   instructive,   because

"Alleyne is an extension of the Apprendi doctrine."     Harakaly, 734

F.3d at 94.   The remedy for an Apprendi error was usually a simple

remand to the district court for resentencing. This court remanded

in United States v. Bailey, 270 F.3d 83, 90 (1st Cir. 2001), in

which we found an Apprendi error that was not harmless.        Even on

plain error review, several of our sister circuits likewise held

that a remand for resentencing by the district judge on the charge

of conviction was required.12


     11
         See United States v. O'Neil, No. 12-2237, 2014 WL 26289
(8th Cir. Jan. 3, 2014); United States v. Jordan, 531 F. App'x 995
(11th Cir. 2013); United States v. DeLeon, No. 10-4064, 2013 WL
4850300 (4th Cir. Sept. 12, 2013); United States v. Donovan, Nos.
11-1843, 11-2163, 11-2450, 11-2055, 2013 WL 4792866 (6th Cir. Sept.
9, 2013); United States v. Claybrooks, 729 F.3d 699 (7th Cir.
2013); United States v. Mubdi, No. 10-5008, 2013 WL 4517026 (4th
Cir. Aug. 27, 2013); United States v. Lake, 530 F. App'x 831 (10th
Cir. 2013); United States v. Lira, 725 F.3d 1043 (9th Cir. 2013);
United States v. Lara-Ruiz, 721 F.3d 554 (8th Cir. 2013). We note
that Mubdi and Lake involved convictions by guilty pleas.        In
fairness, we also note that there is no indication the government
raised in any of these cases the claim of entitlement to a
sentencing jury.
     12
        See, e.g., United States v. Doe, 297 F.3d 76, 93 (2d Cir.
2002) (on plain error review, remanding for resentencing by
district court "for exactly that charge to which [defendant] pled"
where defendant pled guilty to drug crimes involving unspecified
quantity but court had found quantity by a preponderance); United
States v. Campbell, 279 F.3d 392, 397, 402 (6th Cir. 2002) (on
plain error review, remanding for resentencing by district court
where defendant had pled guilty to drug charges with no specified

                                  -22-
                                B.

          So far we have established that the request for a

sentencing jury here is unusual and has no clear support.   We now

turn to why we think the request must be rejected.     Pena's only

crimes of conviction are the two admitted drug offenses, without

any admission of guilt on "death resulting," and the sentence

should be based on those crimes.   Pena's initial position was that

he was not guilty, thereby invoking his right to require the

government to prove the drug offenses beyond a reasonable doubt.

He altered that to a plea of guilty on the two drug charges only,

in reliance on the government's position.    Pena thus gave up the

chance that the government would not be able to prove guilt; he

accepted guilt, and accepted he would be sentenced for that guilt.

Indeed, he has already been incarcerated for nearly two years

toward his sentence since entering the guilty plea; had he gone to

trial and been acquitted, he would not have served that time.   We

see no inequity in holding the government to the position it took.

Absent an agreed upon reservation, we generally do not relieve

either side because its prediction about how sentencing will play

out turns out to be wrong.




quantity and district court had made quantity findings); United
States v. Cernobyl, 255 F.3d 1215, 1221 (10th Cir. 2001) (same);
United States v. Nicholson, 231 F.3d 445, 453, 455 (8th Cir. 2000)
(same, after jury conviction).

                               -23-
            In addition, the government's request raises a thicket of

potential and thorny double jeopardy issues, into which it is wiser

not to enter.       The government's request also is likely to lead to

situations     of    withdrawal   of    guilty      pleas.      As    such,   the

government's        request   undercuts       the    finality    of     criminal

proceedings.

            We touch on the double jeopardy concerns, and the need to

avoid deciding the issue if we are able.                 "The law of double

jeopardy is quite complicated . . . ."           United States v. Pierce, 60

F.3d 886, 890 (1st Cir. 1995).           It is true that double jeopardy

does not usually apply to convictions which have not become final.

See United States v. Ramirez-Burgos, 44 F.3d 17, 18 (1st Cir. 1995)

(observing that the Double Jeopardy Clause safeguards against a

second prosecution following a "final conviction" for the same

offense).    If this conviction were final, the constraint of double

jeopardy would be clearer.         It is also true that those double

jeopardy safeguards do not usually apply to resentencing.                     See

United States v. Dominguez, 951 F.2d 412, 416-17 (1st Cir. 1991).

But the effect of Alleyne and its predecessors is to preclude

certain sentences from being imposed unless the elements supporting

them have been proven to a jury beyond a reasonable doubt.                    The

Supreme Court has not yet dealt with the double jeopardy issues in

this context, much less in these transition cases where what was




                                       -24-
once thought to be a sentencing issue has been recognized instead

to be an element of a crime.

             If the prosecution were now to reindict Pena for the

enhanced "death resulting" crime, it would run into double jeopardy

problems, as it would be seeking to reindict Pena with a greater

crime after a conviction and sentence for a lesser included

offense.     See, e.g., Brown v. Ohio, 432 U.S. 161, 169 (1977).            The

prosecution's argument here raises the risk of doing an end-run

around the Double Jeopardy Clause, by characterizing the jury as a

"sentencing" jury.       If the government were to reindict, that jury

would not merely decide a sentence; it would first have to decide

whether the government had proved all the elements of the "death

resulting" crime beyond a reasonable doubt. Specifically, it would

have    to   decide   whether   the    government    had   proved   that   Pena

"knowingly     or     intentionally"     (1)   manufactured,    distributed,

dispensed, or possessed with intent to manufacture, distribute, or

dispense (2) a controlled substance (3) that was "100 grams or more

of a mixture or substance containing a detectable amount of

heroin," and (4) that death or serious bodily injury resulted from

the use of that controlled substance.               See 21 U.S.C. § 841(a),

(b)(1)(B).13




       13
        We refer to the elements of the crime charged in Count 1.
Count 2 would not require proof of quantity.

                                       -25-
          The prosecution's proposed course of action here seeks to

end-run those requirements, and to obtain the benefit of the plea's

admissions to the essential elements of the two drug crimes, which

are also among the essential elements (the first three elements

listed above) of the aggravated "death resulting" crime.   Indeed,

the prosecution's brief is explicit that the sentencing jury would

take the admissions of guilt from the plea for the other elements

and then decide only the "death resulting" issue.        Under the

doctrine of constitutional avoidance, we do not decide the double

jeopardy issues associated with the government's request, but note

them and avoid them.    See Am. Civil Liberties Union of Mass. v.

U.S. Conference of Catholic Bishops, 705 F.3d 44, 52 (1st Cir.

2013).

          Faced with that advantage gained by the government, the

defendant predictably could move to withdraw his plea.   See United

States v. Allard, 864 F.2d 248, 250 n.3 (1st Cir. 1989) (adverting

to remedy of allowing defendant to withdraw guilty plea when the

"construction afforded an information or indictment . . . differ[s]

materially from a defendant's understanding of the charges at the

time he pled").14   Indeed, counsel for Pena at oral argument said



     14
        A defendant may not change a guilty plea after sentencing.
See Fed. R. Crim. P. 11(e). But here, the sentence must be vacated
and the case remanded.     Under those circumstances, we assume,
without deciding, the Rule 11(e) prohibition on withdrawal of
guilty pleas would not apply. See United States v. Jerchower, 486
F. App'x 68, 71 (11th Cir. 2012).

                               -26-
he would consider doing that, if he were to lose his appeal and the

government were to obtain a sentencing jury.15

            Thus, the government's proposed remedy of a sentencing

jury would increase incentives to withdraw pleas, which would also

undercut the public interest in certainty and finality.       These

interests are particularly strong as to guilty pleas in our legal

system.     See United States v. Dominguez Benitez, 542 U.S. 74, 82

(2004) (observing the "particular importance of the finality of

guilty pleas").    As the Supreme Court stated in United States v.

Timmreck, 441 U.S. 780 (1979):

            [T]he concern with finality [in the context of
            collateral relief] . . . has special force
            with respect to convictions based on guilty
            pleas.    Every inroad on the concept of
            finality    undermines   confidence   in   the
            integrity    of   our  procedures;   and,   by
            increasing the volume of judicial work,
            inevitably delays and impairs the orderly
            administration of justice.      The impact is
            greatest when new grounds for setting aside
            guilty pleas are approved because the vast
            majority of criminal convictions result from
            such pleas.

Id. at 784 (quoting United States v. Smith, 440 F.2d 521, 528-29

(7th Cir. 1971) (Stevens, J., dissenting)) (internal quotation mark

omitted).




     15
         We do not, of course, address the outcome of any such
motion. We merely note that if the plea were withdrawn and the
prosecution unsuccessful, the nearly two years Pena has already
spent in prison following his plea could not be given back to him.

                                 -27-
          The prosecution tries to avoid our conclusion by saying

both parties and the court contemplated there would be follow-on

proceedings   and   its   hands   are   now   being   unfairly   tied.   We

disagree. There was no doubt there would be sentencing proceedings

after Pena's guilty plea. But if the prosecution contemplated that

it would be free to present the "death resulting" theory to a

sentencing-only jury if the Supreme Court ultimately held that

"death resulting" was an element of the crime, it was remarkably

silent on the issue. Had it articulated such a position, there may

well not have been a guilty plea.

                                    V.

          The district court's sentencing order is vacated and the

case remanded for resentencing by the district judge in accordance

with this opinion.




                                   -28-
