Avvo Rating 10.0 top Attorney
Rated by Super Lawyers
Martindale-Hubbell Peer rated for highest level of professional excellence

Good Lawyers Are Persistent, and Continuous Arguments Result in Supreme Court Victory

Kish Law LLC

As any reader of this blog knows, I am a big fan of good, aggressive and persistent criminal defense lawyers. I have had the chance to practice and observe many great criminal defense lawyers, here in Atlanta, throughout Georgia, and in other parts of the country when my work takes me to places like Florida, Alabama, New York and California. I especially like it when criminal defense lawyers “stay the course”, and continue pressing the same argument over the years until they finally prevail. Precisely that situation took place this past Monday when the United States Supreme Court overruled Harris v. United States. What happened was that the Court finally changed its mind, and decided that mandatory minimum sentences are not excluded from the rule first announced in New Jersey v. Apprendi. The case from this Monday is Alleyne v. United States, and can be found here. I previously posted on this issue here.

Mr. Alleyne’s Public Defenders were just such persistent and aggressive criminal defense attorneys. They objected to the sentencing judge’s ruling, which was correct at the time it was made. They continued their objection all the way to the Supreme Court, which agreed with them Monday and changed that rule. Here’s how it happened.

In 2000, the Supreme Court issued the landmark ruling of Apprendi v. New Jersey. That case held for the first time that any fact that can change the maximum punishment to which a Defendant is exposed must be pled in the indictment, and proven to the jury by the usual “beyond a reasonable doubt” standard. This is very important because until that time many facts that result in potentially longer prison sentences could be decided by one person, the sentencing judge, and that judge could use the less stringent “preponderance” evidentiary standard.

However, in 2002 the Court in a case called Harris v. United States restricted the Apprendi rule, holding that it did not apply when a particular fact merely kicked in a “mandatory minimum” sentence, but did not change the potential maximum. Federal crimes often come with mandatory minimum punishments which are extremely harsh, and defense lawyers for years have long chafed under a system that keeps away from the jury the crucial question as to whether the Defendant should be exposed to a very long minimum term in custody.

Harris was decided by what we call a “plurality”, with Justice Breyer casting the crucial fifth vote. Justice Breyer had gone along with the other four who wanted to keep the mandatory minimum fact away from the jury. Although he questioned the logic of the whole idea, he thought there might be a difference between raising a minimum sentence and enhancing a maximum one. In a later case, though, Breyer expressed doubts about that distinction. Since that time criminal defense lawyers repeatedly made pleas to reconsider Harris, but until now all such requests have been rebuffed.

Then, along came Mr. Allyene’s persistent Public Defenders. Mr. Alleyne was accused of a robbery, and one count of using a gun during a crime of violence, what we call a “gun count” or a “924(c)”. He received a forty-six month sentence on the robbery charge. However, the gun charge has a 5-year minimum, and that floor can increase to a 7-year minimum if the firearm was “brandished.” The jury did not accept the theory that the gun had been brandished. Even though the jury concluded that Alleyne had not done so, the trial judge ruled that Alleyne should have foreseen that his accomplice would brandish a gun during the robbery. The judge then imposed the 7-year minimum, instead of the regular 5-year punishment. Alleyne’s lawyer conceded that the Harris decision did treat brandishing a gun as a sentencing factor, not as an element of the crime, yet the public Defenders argued that Harris was inconsistent with Apprendi and later sentencing cases. The judge rejected that challenge, but commented while imposing the added 2-year sentence that “I don’t like being the reverser of juries.” The judge said the Harris precedent gave him no choice. The Court of Appeals subsequently affirmed the sentencing judge, based on the suspect Harris decision.

This past Monday the Supreme Court overruled Harris. I have not had the chance to study the ruling in detail, but it clearly shows that lawyers need to keep pressing sentencing issues that can help their clients.

Client Reviews

"Amazing, Intelligent lawyer... I cannot recommend him enough". (Charges dropped)


“My hero... he succeeded where other attorneys said there was no hope... ”. (Sentence of probation)

C. N.

“... the only lawyer to hire if you’re facing federal charges-he saved me from going to prison... don’t increase your risk of prison with someone who isn’t qualified or experienced in dealing with the federal government.” (Charges dismissed shortly before trial)


“Paul not only knows the law, but his research and grasp of the particulars of our son's case was utterly impressive. He is the most professional and ethical and tenacious lawyer I have ever come across... ” (Son's convictions reversed on appeal).


Contact Us

  1. 1 Free Consultation
  2. 2 We Will Fight for You!
  3. 3 Over 36 Years Experience
Fill out the contact form or call us at (404) 207-1338 to schedule your free consultation.

Leave Us a Message