          United States Court of Appeals
                       For the First Circuit

No. 11-1093

                     UNITED STATES OF AMERICA,

                             Appellee,

                                 v.

                           JEREMY BARNES,

                       Defendant, Appellant.


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

              [Hon. Mark L. Wolf, U.S. District Judge]


                               Before

                 Torruella, Howard, and Thompson,
                          Circuit Judges.



     Judith H. Mizner, Assistant Public Defender, for appellant.
     Dina Michael Chaitowitz, Assistant United States Attorney,
with whom Carmen M. Ortiz, United States Attorney, was on brief,
for appellee.



                          October 10, 2014
           THOMPSON, Circuit Judge.

                                  Overview

           Jeremy Barnes is here again, this time because the

Supreme   Court   granted   his    certiorari    petition,    vacated   our

judgment, and remanded his case for reconsideration in light of

Alleyne v. United States, 133 S. Ct. 2151 (2013).            See Barnes v.

United States, 133 S. Ct. 2851 (2013).          We asked for and received

supplemental briefing from the parties regarding Alleyne and heard

oral argument too.    So the matter is teed up for decision.            And

after summarizing the case's background and discussing the parties'

arguments, we vacate Barnes's sentence and remand for resentencing.

                              Background

           Barnes pled guilty under a plea agreement to one count of

conspiring to distribute at least 50 kilograms of marijuana, in

violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(a)(1), as well as

one count of distributing or aiding and abetting the distribution

of marijuana, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2.   Sentencing in a case like this largely depends on the amount

of drugs involved.   See, e.g., United States v. Acosta-Colón, 741

F.3d 179, 192 (1st Cir. 2013).       For example, a § 841(a) violation

involving, say, 50 kilograms of marijuana activates no mandatory-

minimum prison sentence (but a 20-year maximum) and carries a

mandatory-supervised release term of 3 years (with a life maximum).

See 21 U.S.C. §§ 841(b)(1)(B) and 841(b)(1)(C); see also United


                                    -2-
States v. Nieves, 322 F.3d 51, 56 (1st Cir. 2003) (discussing

supervised release).      But a violation involving 1,000 kilograms or

more of marijuana triggers a mandatory minimum of 10 years in jail

and 5 years of supervised release (with a mandatory maximum of life

for both).    See 21 U.S.C. § 841(b)(1)(A).      The plea agreement here

reserved Barnes's right to challenge any drug amount over 50

kilograms and the government's right to ask for a drug quantity

between 3,000 and 10,000 kilograms.

             With all this in mind, what follows is a stripped-down

explanation of how the judge calculated Barnes's sentence:

             Grouping the two counts together for sentencing purposes,

see USSG § 3D1.2(d), the judge found Barnes responsible for over

3,000   kilograms    of   marijuana    —   a   finding   made   using   the

preponderance-of-the-evidence         standard    that    triggered     the

mandatory-minimum sentence mentioned a second ago (10 years in

prison plus 5 years of supervised release). Noting that Barnes had

only copped to at least 50 kilograms of marijuana, defense counsel

had basically argued in a prehearing filing that a judge should not

get to impose a mandatory minimum that depends on facts neither

admitted by the defendant nor proved beyond a reasonable doubt.

But the judge rejected that argument at sentencing because then-

current law held that a defendant can get a mandatory minimum based

on a judicial drug-quantity finding under the preponderance test.

See United States v. Goodine, 326 F.3d 26, 32 (1st Cir. 2003).


                                   -3-
            Anyway,   this   drug-quantity   finding   helped   yield   a

guideline-sentencing range of 210-262 months in prison, the judge

explained (the other details of that calculation are irrelevant for

current purposes).    The supervised-release range, the judge added,

"is 3 years to life."    Both sides agreed with the judge's take on

the ranges.     But a probation officer spoke up, saying "to the

extent the [judge] found that the drug weight was more than 1,000

kilograms, the supervised-release range would be 5 years." "Okay,"

the judge said.    Defense counsel peeped no words of protests.

            The prosecutor asked the judge to sentence Barnes to 210

months in prison.     That would "capture[] the applicable 10-year

mandatory minimum," she said.     She also recommended that the judge

impose a 3-year term of supervised release.      But she said that she

"recognized that a 5-year —" before being cut off by the judge, who

said "[n]ow you're recommending 3 years."      Correct, the prosecutor

replied.

            When his turn to speak came, Barnes's counsel again said

that judges should not be able to determine drug quantity by a

preponderance of the evidence.      The "current state of law" lets

judges do just that, the judge noted.        Counsel agreed (he raised

the issue simply to preserve it for possible further review) and

then talked about Barnes's troubled history. The judge stopped him

and asked if "there is a 10-year mandatory minimum based on what I

found?"    Barnes's lawyer answered "yes" and suggested that a "10-


                                   -4-
year mandatory minimum" prison stint was "sufficient but not

greater than necessary" to achieve the goals of sentencing.                             And

counsel quickly added that the judge, "pursuant to the minimum

mandatory,        has     to   impose     at   least    five    years   of    supervised

release."

                 Ultimately, the judge sentenced Barnes to 210 months'

imprisonment        and     five    years'     supervised      release.1       The     judge

thought about giving him a "higher sentence." But "I don't usually

exceed      the    government's       recommendation"          if   "there    is   a   plea

agreement," the judge said.                And he also found that the selected

sentence jibed with the sentencing factors in 18 U.S.C. § 3553(a)

—   e.g.,        Barnes's      personal      history     and    characteristics,        the

seriousness of the crime, the need for adequate deterrence, and the

need       to   protect     the    public.         Significantly,     in     his   written

statement of reasons for the sentence, the judge checked the box

indicating that he had imposed a "[m]andatory minimum sentence."

                 Barnes appealed, arguing (among other things) that drug

quantity must be treated as an element of the offense and thus

proved beyond a reasonable doubt.                       We affirmed because then-

controlling caselaw let a judge use a preponderance standard in

finding         facts   that      increase     a     defendant's     mandatory-minimum



       1
       The judgment shows that the judge gave him a 210-month
incarcerative term on the first count, a concurrent 60-month
incarcerative term on the second count, and a 60-month term of
supervised release.

                                               -5-
sentence.   See Goodine, 326 F.3d at 32.      Barnes sought certiorari.

A little later the Supreme Court held in Alleyne that most (but not

all) facts that increase statutory minimum penalties must (if the

defendant does not admit them) be proved beyond a reasonable

doubt.2   See 133 S. Ct. at 2161-63.       Not surprisingly, the Court

"GVR'd" — granted certiorari, vacated the judgment, and remanded

the case — for further consideration in view of Alleyne.

                                Analysis

            So here we are.    Helpfully, the parties do not dispute

that the judge's drug-quantity calculation reflects Alleyne error.

Rightly so, because the judge reached the 1,000-plus kilogram

figure — the amount needed to trigger mandatory minimums — using a

preponderance standard.3      See United States v. Harakaly, 734 F.3d

88, 93-94 (1st Cir. 2013) (discussing Alleyne error). They also do

not dispute that an Alleyne error is of constitutional magnitude.

About this, they are right again.        See United States v. Pena, 742



     2
       Alleyne did not change the preexisting rule that a judge may
find the fact of a prior conviction. See 133 S. Ct. at 2160 n.1;
see also United States v. Rodriguez, 759 F.3d 113, 122 (1st Cir.
2014).
     3
       Recently we held that no Alleyne error arises if "a
defendant's   sentence   is   based   entirely   on   [g]uidelines
considerations without changing the applicable mandatory minimum."
United States v. Ramírez-Negrón, 751 F.3d 42, 49 (1st Cir. 2014).
Neither the judge nor the parties there ever mentioned at
sentencing that a mandatory minimum was in play. Id. at 50. The
government here does not make any Ramírez-Negrón-type claim,
telling us at oral argument that, unlike that case, Barnes's case
does involve Alleyne error.

                                   -6-
F.3d 508, 514 (1st Cir. 2014).           And they do not dispute that Barnes

preserved his claim of Alleyne error regarding the 210-month jail

term — which they agree means that we must vacate his sentence

unless the government proves the error's harmlessness beyond a

reasonable doubt.           Right they are.       See United States v. Pérez-

Ruiz,    353    F.3d   1,    17   (1st   Cir.     2003)    (explaining   that   the

government      must   prove      "beyond   any    reasonable    doubt   that   the

assigned error did not contribute to the result of which the

appellant complains"); see also United States v. Melvin, 730 F.3d

29, 32 (1st Cir. 2013) (calling the government's burden here a

"heavy" one).

               Two issues divide the parties, however.              The first is

whether the Alleyne error involving the 210-month prison term is

harmless — the government says it is; Barnes says it is not.                    The

second is whether Barnes preserved the Alleyne error regarding the

5-year supervised-release term — the government says he did not,

and so argues plain-error review applies; Barnes says he did, and

so argues harmless-error review controls.                 We think Barnes has the

better of the arguments.4




     4
       Barnes also argues that the Alleyne error is structural,
requiring reversal even if everyone thinks it is harmless. He says
that his argument appears foreclosed by Harakaly, 734 F.3d at 94-
95, and raises it — without developing it in any meaningful way —
simply to preserve it for possible en banc or certiorari review.
So we need say no more about that issue.

                                         -7-
                              The Prison Term

            For those keeping track, the prison term imposed — 210

months — is 90 months above the 10-year mandatory minimum.                The

government pounces on this fact, insisting it shows the judge based

the jail sentence on guideline considerations, like the applicable

guideline-sentencing    range       and   the   relevant   section    3553(a)

factors. The applicable mandatory minimum, in other words, "had no

practical effect" on the prison sentence that the judge chose, at

least in the government's mind. Ergo, the government contends, the

Alleyne error was harmless beyond a reasonable doubt.                 We view

matters quite differently, however.         Here's why:

            The key players at sentencing, recall, talked about

mandatory minimums.     True, the probation officer did not use the

words "mandatory minimum," but she did advise the judge that for

1,000 kilograms or more of marijuana, "the supervised release range

would be 5 years" — which is the mandatory minimum under section

841(b)(1)(A).     And   if,    as    probation    suggested,   that    amount

activated   a   mandatory     minimum     supervised-release   term,     then

everyone at sentencing could assume probation thought that amount

activated a mandatory minimum jail term too.           The prosecutor did

use the words "mandatory minimum" hard on the heels of probation's

comment, telling the judge that the government's recommended prison

sentence of 210 months would "capture[] the applicable 10-year

mandatory minimum." The judge later used "mandatory minimum" lingo


                                      -8-
too, asking Barnes's lawyer whether "a 10-year mandatory minimum"

applied   given    the     drug-quantity     findings,    to   which    counsel

responded "yes." All of this throws cold water on the government's

attempt to downplay the mandatory minimum's role at sentencing.

             But wait, protests the government.          The judge also said

there that he had actually considered giving Barnes a "higher

sentence." Surely that comment shows the mandatory minimum did not

affect the sentence selected, the government argues.              Not quite.

Remember, the judge followed his "higher sentence" remark by

saying, in almost the same breath, that he decided not to jack up

the   prison   stay    because   he    "usually"   does    not   "exceed       the

government's      recommendation"      in    plea-agreement      cases     —    a

recommendation,       we   repeat,    that   the   prosecutor    made    while

explaining how a 210-month sentence "captures the applicable 10-

year mandatory minimum." Remember too that in his formal statement

of reasons (which judges must complete when sentencing defendants),

the judge indicated that he had handed out a "[m]andatory minimum

sentence."     So the government's protest fails.5




      5
       An Alleyne error can be harmless if "no reasonable jury" —
hearing the same evidence that the sentencing judge heard — could
hold the defendant responsible for a drug amount "below the . . .
threshold[] triggering the mandatory minimum[]." Ramírez-Negrón,
751 F.3d at 51 n.8 (citing Harakaly, 734 F.3d at 95-96). But the
government makes no argument like that here. And so we move on.
See, e.g., United States v. Politano, 522 F.3d 69, 75 n.5 (1st Cir.
2008) (holding that an argument never made on appeal is waived).

                                      -9-
            The bottom line here is this.      The government offers a

variety of theories why, in its view, the Alleyne error had no

effect on the 210-month prison term.        But none proves the error's

harmlessness under our stiff test — i.e., none proves beyond a

reasonable doubt      that the error did not "contribute" to the

complained-about      sentence.   See    Pérez-Ruiz,     353   F.3d   at   17.

Consequently we must vacate the prison component of Barnes's

sentence.

                       The Supervised-Release Term

            And we must do the same with the supervised-release part

of Barnes's sentence too.     That 5-year term, we remind the reader,

corresponds exactly to the statutory mandatory minimum. Faced with

this circumstance, the government pins its principal hope on

persuading us that the defense acquiesced to the 5 years.                  The

record, however, undercuts that theory.

            Yes, as the government notes, defense counsel did not

object   when   the   probation   officer   told   the    judge   a   5-year

supervised-release term applied, assuming the judge found a drug

weight of at least 1,000 kilograms.         And yes, as the government

also notes, defense counsel later told the judge that he had to

"impose at least five years of supervised release."               But those

things happened after the defense lost the drug-quantity battle,

with the judge's findings activating mandatory minimums. Well, the

government says, when the judge handed down the sentence, the


                                  -10-
defense never asked him to explain whether (to quote its latest

brief) "the term was statutorily required or simply desirable."

Essentially, the government wants us to ignore everything that

preceded the sentence's imposition — e.g., the defense's fighting

and losing on drug quantity and the probation officer's then

telling the judge that 1,000 kilograms or more of marijuana (the

threshold for triggering a 5-year supervised-release term) made

Barnes eligible for at least 5 years of supervised release.                 And

that we will not do.         Ultimately, then, this concatenation of

events kiboshes the government's forfeiture argument.

           And with the forfeiture issue out of the way, the rest of

the analysis is easy.        On the harmlessness question, considering

everything in context — with the talk of mandatory minimums in the

air at sentencing, with a check next to "[m]andatory minimum

sentence" on the judge's statement-of-reasons form, etc. — we

cannot say beyond a reasonable doubt that the Alleyne error did not

contribute to the complained-of supervised-release result.              So we

must vacate that part of the sentence as well.

                                  Final Words

           Our   work     over,   we   vacate    Barnes's   sentence   in   its

entirety   and   remand    the    case   for    new   sentencing   proceedings

consistent with this opinion.




                                       -11-
