39
though the 20-year sentence imposed was within the statutory maximum sentence applicable
under the default sentencing provision.
17
The Sixth Circuit was not the only circuit to apply Apprendi to mandatory minimums
under 21 U.S.C. § 841.
18
The Second Circuit, in United States v. Guevara (2001)
19
and United
States v. Yu (2002), and the Ninth Circuit, in United States v. Velasco Heredia (2003), have also
applied Apprendi to mandatory minimum sentences under § 841. At the same time, the D.C. and
First Circuits clearly rejected this reading of Apprendi.
20
The Supreme Court subsequently
reaffirmed McMillan in Harris v. United States (2002), a case involving a statute other than §
841. Although Harris could be (and was) read as having effectively overruled decisions such as
Ramirez (see United States v. Leachman 2002), a panel of the Ninth Circuit actually decided
Velasco Heredia after Harris.
In terms of individual judges’ votes, five three-judge panels considered this issue in the
absence of binding circuit precedent. Three panels decided the issue in the liberal direction,
applying Apprendi to mandatory minimum sentences under § 841. All three of these panels were
comprised of two Democratic judges and one Republican judge. Thus six Democratic judges
and three Republican judges voted in favor of the liberal alternative. Two panels rejected the
liberal rule and held that the Apprendi rule did not apply to mandatory minimum sentences. One
of these panels had two Democratic judges, the other two Republican judges. Thus, three
Democratic judges and three Republican judges voted in favor of the conservative rule. In terms
of percentages, 66.7% of Democratic judges to vote on this issue voted in favor of the liberal rule
(6/9), compared to 50% of Republican judges (3/6). Overall, 60% of judges voted in the liberal
direction.
21
Convention