J-S38045-14



                                  2014 PA Super 267



COMMONWEALTH OF PENNSYLVANIA,                     IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JERMAL BIZZEL,

                            Appellant                 No. 2556 EDA 2013


             Appeal from the Judgment of Sentence April 16, 2013
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0011725-2012


BEFORE: FORD ELLIOTT, P.J.E., BOWES, and SHOGAN, JJ.

CONCURRING OPINION BY BOWES, J.:                  FILED DECEMBER 02, 2014

       In light of this Court’s decisions in Commonwealth v. Newman, 99

A.3d 86 (Pa.Super. 2014) (en banc), and Commonwealth v. Valentine,

2014 PA Super 220, I am constrained to concur with the learned majority’s

severability analysis.      I write further to express my disagreement with

aspects of those decisions, especially in light of those Courts’ discussions of

Commonwealth v. Watley, 81 A.3d 108 (Pa.Super. 2013) (en banc), a

decision I authored.1          In my view, those provisions of Pennsylvania
____________________________________________


1
  In this respect, I note that I am also in disagreement with the discussion
of my learned colleague Judge Mundy in her concurring and dissenting
opinion in Commonwealth v. Newman, 99 A.3d 86 (Pa.Super. 2014) (en
banc), regarding Commonwealth v. Watley, 81 A.3d 108 (Pa.Super.
2013) (en banc), and its implications on severability. In Watley, we found
the sentence therein legal since the jury determined the facts subjecting
(Footnote Continued Next Page)
J-S38045-14



mandatory minimum statutes affected by Alleyne v. United States, 133

S.Ct. 2151 (2013), are severable.2

      In Newman, this Court found, in pertinent part, that 42 Pa.C.S.

§ 9712.1(c), governing a burden of proof and declaring that possession of a

firearm was not an element of the underlying crime, was not severable from

the remainder of § 9712.1. The en banc Court, in an opinion authored by

my esteemed colleague on this panel, the learned President Judge Emeritus

Ford Elliott, found that subsection (a) of § 9712.1 was essentially and

                       _______________________
(Footnote Continued)

Watley to his increased sentence beyond a reasonable doubt. We did not
discuss or reach the non-raised question of the unconstitutionality of the
statute as a whole. Thus, I agree with my learned colleague President Judge
Emeritus Ford Elliott’s characterization of Watley in footnote 9 of her
opinion in Newman to the limited extent that Watley did not address
severability. Nevertheless, my sentiments on the ultimate question of
severability are closer in line to those of Judge Mundy, and I believe Watley
supports the idea that the mandatory statutes are not unconstitutional as a
whole.
2
    I am cognizant that our Supreme Court is currently considering the
severability issue.    See Commonwealth v. Newman, 99 A.3d 86
(Pa.Super. 2014) (en banc) (collecting cases). Further, I am aware that the
High Court is considering whether Alleyne v. United States, 133 S.Ct.
2151 (2013), implicates this Commonwealth’s illegal sentencing doctrine.
Commonwealth v. Johnson, 93 A.3d 806 (Pa. 2014). Unlike Newman
and Commonwealth v. Valentine, 2014 PA Super 220, Appellant properly
preserved his challenge to his mandatory minimum sentence at the trial
level, anticipating the decision in Alleyne. Thus, there are no issue-
preservation questions as in Newman and Valentine. Since Appellant
properly preserved his Alleyne issue, a decision determining that certain
Alleyne issues do not pertain to the legality of a sentence will have no effect
on this case. Hence, this case presents a pure vehicle for the determination
of whether 18 Pa.C.S. § 6317(b) is severable from the remainder of the
statute following Alleyne.



                                            -2-
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inseparably connected to subsection (c). The Newman Court reasoned that

submitting to the jury the question of whether the firearm was possessed in

close proximity to the drugs therein would constitute impermissible

legislating by the Court and result in the court impermissibly rewriting the

mandatory statute.

      Although I concede reasonable minds may disagree as to the issue, I

am unpersuaded that the burden of proof aspects of the mandatory

minimum statutes affected by Alleyne are not severable. It is long-standing

law in this Commonwealth that, merely because a portion of a statute is

unconstitutional, the entire statute is not ipso facto unconstitutional.    See

Rothermel v. Meyerle, 20 A. 583 (Pa. 1890).         In Rothermel, our High

Court opined,

      A statute may be void only so far as its provisions are repugnant
      to the constitution: one provision may be void, and this will not
      affect other provisions of the statute. If the part which is
      unconstitutional in its operation, is independent of, and readily
      separable from that which is constitutional, so that the latter
      may stand by itself, as the reasonable and proper expression of
      the legislative will, it may be sustained as such; but, if the part
      which is void is vital to the whole, or the other provisions are so
      dependent upon it, and so connected with it, that it may be
      presumed the legislature would not have passed one without the
      other, the whole statute is void: Gibbons v. Ogden, 9 Wheat.
      203; City of New York v. Miln, 11 Pet. 102; Packet Co. v.
      Keokuk, 95 U.S. 80; Tiernan v. Rinker, 102 U.S. 123;
      Presser v. Illinois, 116 U.S. 252; Lea v. Bumm, 83 Pa. 237;
      In re Ruan St., 132 Pa. 257; Sedg., St. & Const. Law, 413.
      The constitutional and the unconstitutional provisions may even
      be contained in the same section of the law, and yet be perfectly
      distinct and separable, so that the former may stand though the
      latter fall: the question is, whether the several provisions are
      essentially    and      inseparably   connected    in   substance:

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      Hagerstown v. Dechert, 32 Md. 369; 3 Amer. & Eng. Encyc.
      of Law, 677, and cases there cited.

Rothermel, supra at 587-588. These principles hold true even where the

statute in question does not contain a severability provision.          Rieck-

McKunkin Dairy Co. v. Milk Control Com., 18 A.2d 868 (Pa. 1941). Our

legislature codified this expression of American common law in 1 Pa.C.S.

§ 1925. That statute provides:

      The provisions of every statute shall be severable. If any
      provision of any statute or the application thereof to any person
      or circumstance is held invalid, the remainder of the statute, and
      the application of such provision to other persons or
      circumstances, shall not be affected thereby, unless the court
      finds that the valid provisions of the statute are so essentially
      and inseparably connected with, and so depend upon, the void
      provision or application, that it cannot be presumed the General
      Assembly would have enacted the remaining valid provisions
      without the void one; or unless the court finds that the
      remaining valid provisions, standing alone, are incomplete and
      incapable of being executed in accordance with the legislative
      intent.


1 Pa.C.S. § 1925; see also Stilp v. Commonwealth, 905 A.2d 918, 970-

971 (Pa. 2006) (discussing briefly the history of the severability doctrine).

      Thus, there is a presumption that Pennsylvania legislation is severable.

“Severance is precluded only where, after the void provisions are excised,

the remainder of the statute is incapable of execution in accordance with

legislative intent.” Commonwealth v. Williams, 832 A.2d 962, 986 (Pa.

2003).   Importantly, “Section 1925 funnels our inquiry to examining what

the enacting legislature would have done had it known that the [provision in



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question] was unconstitutional.” Annenberg v. Commonwealth, 757 A.2d

338, 347 (Pa. 2000).

      As our Supreme Court set forth in Stilp, "The test of severability may

be stated in simple terms as follows: After the invalid portion of the act has

been stricken out, whether that which remains is self-sustaining and is

capable of separate enforcement without regard to that portion of the

statute which has been cast aside.     If this be true the statute should be

sustained to the extent of that which remains."       Stilp, supra at 972 n.38

(quoting Rutenberg v. City of Philadelphia, 196 A. 73, 79 (Pa. 1938)).

      Following   Alleyne,   18   Pa.C.S.   §   6317(b)     is   unquestionably

unconstitutional. That aspect of the statute reads:

       (b) Proof at sentencing.--The provisions of this section shall
      not be an element of the crime. Notice of the applicability of this
      section to the defendant shall not be required prior to conviction,
      but reasonable notice of the Commonwealth's intention to
      proceed under this section shall be provided after conviction and
      before sentencing. The applicability of this section shall be
      determined at sentencing. The court shall consider evidence
      presented at trial, shall afford the Commonwealth and the
      defendant an opportunity to present necessary additional
      evidence and shall determine by a preponderance of the
      evidence if this section is applicable.

18 Pa.C.S. § 6317(b).

      If that section were excised, the statute would read:

      (a) General rule.--A person 18 years of age or older who is
      convicted in any court of this Commonwealth of a violation of
      section 13(a)(14) or (30) of the act of April 14, 1972 (P.L. 233,
      No. 64), [FN1] known as The Controlled Substance, Drug, Device
      and Cosmetic Act, shall, if the delivery or possession with intent
      to deliver of the controlled substance occurred within 1,000 feet

                                     -5-
J-S38045-14


     of the real property on which is located a public, private or
     parochial school or a college or university or within 250 feet of
     the real property on which is located a recreation center or
     playground or on a school bus, be sentenced to a minimum
     sentence of at least two years of total confinement,
     notwithstanding any other provision of this title, The Controlled
     Substance, Drug, Device and Cosmetic Act or other statute to
     the contrary. The maximum term of imprisonment shall be four
     years for any offense:

     (1) subject to this section; and

     (2) for which The Controlled Substance, Drug, Device and
     Cosmetic Act provides for a maximum term of imprisonment of
     less than four years.

     If the sentencing court finds that the delivery or possession with
     intent to deliver was to an individual under 18 years of age, then
     this section shall not be applicable and the offense shall be
     subject to section 6314 (relating to sentencing and penalties for
     trafficking drugs to minors).

                                    ...

     (c) Authority of court in sentencing.--There shall be no
     authority for a court to impose on a defendant to which this
     section is applicable a lesser sentence than provided for in
     subsection (a), to place the defendant on probation or to
     suspend sentence. Nothing in this section shall prevent the
     sentencing court from imposing a sentence greater than that
     provided in this section. Sentencing guidelines promulgated by
     the Pennsylvania Commission on Sentencing shall not supersede
     the mandatory sentences provided in this section. Disposition
     under section 17 or 18 of The Controlled Substance, Drug,
     Device and Cosmetic Act shall not be available to a defendant to
     which this section applies.

     (d) Appeal by Commonwealth.--If a sentencing court refuses
     to apply this section where applicable, the Commonwealth shall
     have the right to appellate review of the action of the sentencing
     court. The appellate court shall vacate the sentence and remand
     the case to the sentencing court for imposition of a sentence in
     accordance with this section if it finds that the sentence was
     imposed in violation of this section.


                                    -6-
J-S38045-14



18 Pa.C.S. § 6317.

      Reading the statute without the burden of proof provision does not, in

my view, render it wholly incapable of enforcement.      The statute remains

both coherent and self-sustaining when read in conjunction with the

constitutional jury requirements articulated in Alleyne.       For example, in

Watley, it was clear that the jury determined beyond a reasonable doubt

the facts necessary to impose the mandatory sentence. Hence, no jury trial

right issues were involved, nor         was the   sentence    unconstitutionally

increased.    Similarly, in Commonwealth v. Matteson, 96 A.3d 1064

(Pa.Super. 2014), the jury verdict included the facts needed to impose the

mandatory minimum sentence. Today, the legislature could readily reenact

mandatory minimum statutes absent the burden of proof provisions and

without specifying a new burden of proof procedure and there would be no

constitutional impediment to their enforcement.

      Respectfully, the Newman Court asked the wrong question in

conducting its severability analysis.   Specifically, it looked to whether the

General Assembly intended to have a jury decide the sentencing factors that

triggered the mandatory sentence.       See id. at 102 (“the legislature also

intended those penalties to be imposed according to a very specific

procedure—the issue of firearm possession must be decided by the judge, at

sentencing, by a preponderance of the evidence.”).           The proper query,

however, is what the legislature would have done had it known that a judge

could not decide such facts by a preponderance of the evidence standard.

                                    -7-
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See Annenberg, supra at 347; see also United States v. Booker, 543

U.S. 220, 246 (2005).

      I simply cannot agree that the legislature would not have enacted a

statute to mandatorily increase punishment based on the sale of drugs in a

school zone solely because a judge could not determine the facts by a

preponderance standard.     Had the legislature known this burden of proof

was unconstitutional, it is more likely that it would have substituted the

constitutional standard in its place. The overriding concern of the legislature

was to increase punishment for offenses committed in school zones and

decrease judicial sentencing discretion. The mandatory minimum statute did

not exist for the sole purpose of allowing judges to determine facts by a

preponderance standard. Where the purpose of a statute is “to accomplish

several distinct objects, and these can be severed, so that one may fall and

the others stand, only the part which infringes the constitution will be

declared   invalid[.]”   Thomas    Raeburn   White,   Commentaries     on   the

Constitution of Pennsylvania, at 29 (1907) (collecting cases).

      Therefore, I believe the procedure adopted by the trial court in

Valentine, which was ultimately rejected by this Court based on Newman,

was entirely proper. Submitting to the jury the facts essential to invoke the

mandatory is consistent with federal practice following the earlier Apprendi

v. New Jersey, 530 U.S. 466 (2000) decision, and provides an easy and

manageable constitutional method to follow.      Further, I strongly disagree

that such procedures result in courts re-writing the mandatory statute.       I

                                     -8-
J-S38045-14



acknowledge that “a court is empowered merely to strike existing language;

the judiciary is given no authority to draft its own language and insert it into

the statute or ordinance.”     Pap's A.M. v. City of Erie, 719 A.2d 273,

281 (Pa. 1998), reversed on other grounds sub nom. City of Erie v. Pap's

A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). However, to

the extent that Newman and the trial court opinions upon which it relied

assert that such a procedure violates the separation of powers, I believe

they have misconstrued that doctrine.

       The separation of powers doctrine provides that “the executive,
      the legislature and the judiciary are independent, co-equal
      branches of government.” Beckert v. Warren, 497 Pa. 137,
      439 A.2d 638, 642 (Pa. 1981). The dividing lines among the
      three branches “are sometimes indistinct and are probably
      incapable of any precise definition.” Stander v. Kelly, 433 Pa.
      406, 250 A.2d 474, 482 (Pa. 1969) (plurality). “Under the
      principle of separation of the powers of government, . . . no
      branch should exercise the functions exclusively committed to
      another branch.” Sweeney v. Tucker, 473 Pa. 493, 375 A.2d
      698, 706 (Pa. 1977).

Commonwealth v. Melvin, 2014 PA Super 181, *5.

      It has been written that “[w]hen the legislative and executive powers

are united in the same person, or in the same body of magistrates, there

can be no liberty[.]”     John Adams, A Defence of the Constitutions of

Government of the United States of America, Vol. I, at 153 (3rd Ed.

Philadelphia, 1797).    Writing further, Adams eloquently set forth, “Again,

there is no liberty, if the power of judging be not separated from the

legislative and executive powers: were it joined with the legislative, the life


                                     -9-
J-S38045-14


and liberty of the citizens would be exposed to arbitrary control[.]” Id. at

154.

       However, the act of following Alleyne by requiring a jury to determine

the facts necessary to trigger a statutory mandatory sentence in no way is a

legislative act by either prosecutors or the courts. Instead, we are excising

the burden of proof section and enforcing the constitutional pronouncement

of Alleyne. This is not legislating, but enforcing constitutional rights based

on existing binding precedent.        Indeed, this procedure bears a strong

resemblance to our procedure pertaining to certain other criminal offenses.

For example, our theft statutes do not discuss a burden of proof, but the

amount of money stolen aggravates the crime.             The jury must therefore

determine the amount taken in rendering its verdict. We do not require the

statute to delineate that the jury must unanimously determine these facts

beyond    a   reasonable   doubt.     This     is   merely   presumed   based   on

constitutional law. Admittedly, in these situations the elements are included

in the underlying offense, but, as the United States Supreme Court has

repeatedly opined, it matters not what label a fact is given, whether it be an

element or sentencing factor.       See Apprendi, supra; Booker, supra at

242; Alleyne, supra.

       To engraft on a statute a beyond a reasonable doubt burden of proof

based on a United States Supreme Court decision is no more legislating than

requiring the Commonwealth to prove the age of a victim or the amount of


                                      - 10 -
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money stolen beyond a reasonable doubt.             The proper question, as

mentioned earlier, is: had the legislature known when it passed the

mandatory sentencing provision that the burden of proof provision was void,

how would it have exercised its power to define sentencing practices?      Cf.

Annenberg, supra at 347 (rejecting contention that Supreme Court’s

severing of a statute would violate the separation of powers by arrogating to

itself the power to tax and stating, “When this Court severs a void provision

from a statute, it is doing so to attempt to effectuate legislative intent. We

are therefore not arrogating to ourselves the power to tax but rather are

attempting to determine how the legislature would have exercised its taxing

power had it known, in 1889, that the exclusion was void.”).

      Pointedly, certain Pennsylvania mandatory statutes, as applied, are

unaffected by Alleyne despite their burden of proof provisions running afoul

of that decision.   For example, 42 Pa.C.S. § 9718 applies mandatory

sentences based on the youth of the victim. In certain instances, however,

the age of the victim is already included as an element of the crime,

specifically with regard to various sex offenses.   In those situations, there

should be no impediment to sentencing the defendant under the mandatory

sentence. See Matteson, supra.

      Further, I add that 42 Pa.C.S. § 9717, a mandatory minimum statute,

which applies to crimes committed against the elderly, includes no burden of

proof provision. Relying on the no longer constitutionally-sound decision in


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McMillan v. Pennsylvania, 477 U.S. 79 (1986), this Court applied a

preponderance of the evidence standard at sentencing. Commonwealth v.

Rizzo, 523 A.2d 809 (Pa.Super. 1987). Based on the decision in Alleyne,

that holding is invalid and the Alleyne decision provides the proper mode

for imposing that mandatory minimum sentence.         As the Commonwealth

astutely observes, the entire Crimes Code is devoid of providing a burden of

proof for any element of a crime.      Rather, no such burden of proof is

required to be delineated based on well-ensconced constitutional principles.

Consistent with Judge Mundy’s view in her concurring opinion in Newman, I

believe that “pre-existing procedures and Alleyne specify that the burden of

proof shall be beyond a reasonable doubt and it shall be submitted to the

jury.” Newman, supra at 106 (Mundy, J., concurring).

      In this respect, the trial court opinions relied on by the Newman

Court are similarly unpersuasive and misplaced precisely because the default

method of resolving disputed questions of fact is for the jury, even absent a

legislative directive. Frankly, the United States Supreme Court has judicially

directed the manner in which mandatory minimum sentences are to be

decided: via a jury determination of the facts included in those mandatory

sentences.

      Our United States Supreme Court’s decision in Booker is illustrative.

Booker involved an Apprendi challenge to the federal sentencing guidelines

and resulted in two separate majority opinions.    The first majority opinion


                                    - 12 -
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declared that the then-mandatory federal sentencing guidelines were

unconstitutional to the extent they permitted a judge to increase a

defendant’s maximum sentence based on facts the court decided by a

preponderance of the evidence.      The second majority opinion (hereinafter

the “remedial opinion”) concluded that the proper remedy was not to strike

the guidelines in their entirety, but to sever those provisions that made the

guidelines mandatory.

      Therein, Booker was charged with possession with intent to distribute

fifty grams of crack cocaine.    The jury heard evidence that he had 92.5

grams of crack cocaine when arrested. At sentencing, however, the judge

determined that Booker possessed an additional 566 grams of crack cocaine.

This finding resulted in an almost ten-year increase in the sentence Booker

would have received under the guidelines based solely on the jury verdict.

Consistent with its earlier Apprendi and Blakely v. Washington, 542 U.S.

296 (2004) decisions, the United States Supreme Court concluded that

Booker’s jury trial rights were infringed and that “any fact (other than a prior

conviction) which is necessary to support a sentence exceeding the

maximum authorized by the facts established by a plea of guilty or a jury

verdict must be admitted by the defendant or proved to a jury beyond a

reasonable doubt.” Booker, supra at 244.

      In doing so, the Court rejected the government’s position that

requiring a jury to determine the sentencing factors beyond a reasonable


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doubt would violate the separation of powers doctrine by unconstitutionally

granting the Federal Sentencing Commission, which promulgated the

guidelines, the legislative power to define criminal elements.       The Court

maintained that the argument was without merit because “the impact of

such facts on federal sentences is precisely the same whether one labels

such facts ‘sentencing factors’ or ‘elements’ of crimes.” Id. at 242.3

       The remedial opinion in Booker severed the provisions of the Act in

question that made it mandatory. The remedial justices maintained that the

Act, as written, with jury fact-finding added, was preferable to total

invalidation of the statute, but that the legislature would have preferred its

proffered remedy.       In creating its remedy, the remedial majority opined,

“We seek to determine what ‘Congress would have intended’ in light of the

Court’s constitutional holding.”         Id. at 246.   This statement is wholly

consistent with the Pennsylvania Supreme Court’s approach in Annenberg,

supra, and with long-standing severability jurisprudence.

       The remedial Booker opinion opined that requiring juries to determine

the facts necessary to impose the increased guideline sentences “would

create a system far more complex than Congress could have intended.” Id.

____________________________________________


3
   In the case at bar, we have no similar separation of powers concern
because the legislature passed the mandatory minimum statute in question.
Describing the facts necessary in those statutes as sentencing factors or
elements of an aggravated crime does not impact the state sentences that
could be imposed.



                                          - 14 -
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at 254.   Accordingly, it chose to make the mandatory guidelines advisory

only. The dissenting opinions from that remedial opinion, however, cogently

recognized that the remedial majority was not excising unconstitutional

provisions of the law in question.

      With this in mind, I could share the sentiments of the Newman Court

and the trial court opinions it discussed with respect to courts acting in a

legislative function, had we declared that the mandatory minimum statutes

would no longer be mandatory.        However, that is not what I propose, nor

what the Commonwealth sought here or in our earlier decisions. I add that

submitting to the jury those facts included in the current mandatory

sentencing statutes affected by Alleyne is not complex, nor does it create a

unwieldy system that our General Assembly would not have enacted had it

known the burden of proof provision was unconstitutional.

      As in the federal system, the vast majority of criminal proceedings are

the result of plea bargains. Where a defendant admits to the facts needed

to trigger a mandatory sentence, there are no constitutional problems. As

Justice Stevens pointed out in his dissent to the remedial Booker opinion, in

the event that a trial occurs, “prosecutors could avoid an Apprendi . . .

problem simply by alleging in the indictment the facts necessary to reach the

chosen Guidelines sentence.”         Booker, supra at 277 (Stevens, J.,

dissenting).   Instantly, absent the holdings in Newman and Valentine,

prosecutors could avoid Alleyne issues by including in the criminal


                                      - 15 -
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information the facts required to reach the mandatory sentence at issue. In

this regard, Justice Stevens noted at that time that the Department of

Justice was advising federal prosecutors to charge and prove facts that

increased statutory maximums for drug types and quantities. He accurately

recognized that “[e]nhancing the specificity of indictments would be a simple

matter[.]”   Id.   In Pennsylvania, the same result could be achieved by

prosecutors and judges following the procedure that occurred and was

reversed in Valentine, that is, including the facts in the criminal information

and submitting the question to the jury.

      Rather than engage in a wholesale striking down of our mandatory

sentencing statutes, I would allow prosecutors to prove any fact required to

subject the defendant to a mandatory sentence to the jury beyond a

reasonable doubt. In the event that the defendant elects to proceed non-

jury, as occurred here, the trial judge would be charged with finding the

essential facts beyond a reasonable doubt.     Furthermore, where the fact-

finder’s findings already encompass the necessary facts needed to subject a

defendant to a mandatory minimum sentence, or the facts have been

stipulated too, I would find any non-compliance with Alleyne to be

harmless.    See Watley, supra; Matteson, supra; United States v.

Cotton, 535 U.S. 625 (2002) (Apprendi violation harmless); United

States v. King, 751 F.3d 1268, 1279 (11th Cir. 2014) (Alleyne violation




                                    - 16 -
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harmless); United States v. Harakaly, 734 F.3d 88 (1st Cir. 2013) (same);

United States v. Mack, 729 F.3d 594, (6th Cir. 2013) (same).

      Since I believe the Newman Court and the trial court opinions it

discussed misperceived the legislative intent analysis pertaining to the

severability doctrine and did not consider what the legislature would have

intended had it known that the burden of proof provisions of its mandatory

statutes were unconstitutional, I cannot join the majority in full. Absent the

decisions in Newman and Valentine, I would find that because the

evidence in this case that the drug sale occurred within one thousand feet of

a school was uncontradicted, the Alleyne error was harmless.        However,

because Newman is binding on this panel, as is Valentine, I am

constrained to concur in the result.




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