Malone: Alleyne error is harmless

In U.S. v. Malone, No. 12-15092 (June 26, 2014), the Court affirmed the sentence imposed on a defendant convicted of drug trafficking and failure to appear at trial. Toward the end of a lengthy jury trial in1990, Malone did not show up for trial. The trial continued in his absence, and the jury convicted Malone of a drug conspiracy. Twenty-two years later, in 2012, Malone was extradited from Ecuador, and brought for sentencing for his earlier drug trafficking conspiracy, and for a failure to appear charge – to which he pled guilty. The district court imposed a 240-month mandatory minimum sentence on the 1990 drug conspiracy conviction, based on its finding that the offense involved more than 5 kilos of cocaine and therefore triggered this mandatory minimum. The district court also imposed a consecutive 22-month sentence for Malone’s failure to appear at trial. Citing Alleyne, the Court agreed with Malone that, in light of the absence of jury findings regarding drug quantity at the 1990 trial, it was error for the district court to impose a sentence based on its own findings as to drug quantity. However, the error was harmless, because Malone had stipulated at the 1990 trial to a quantity greater than 5 kilograms. The Court rejected the argument that there was a conflict of interest in representation in light of defense’s counsel representation of a co-defendant at the trial in 1990. The Court noted Malone’s failure to demonstrate any alternative defense strategy that he could have pursued. The Court rejected as “invited error” Malone’s claim on appeal that, because his punishment for his failure to appear was already accounted for by a Guidelines sentence enhancement, he should not have been subject to a consecutive sentence for this failure. The Court noted that in the trial court Malone’s counsel stated that Malone was subject to “additional” punishment on account of the failure to appear. Finally, the Court rejected Malone’s complaint about an incomplete appellate record, pointing out that he was responsible, by having stayed on the run for 22 years, for the record being lost in that long interval.