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August 5, 2004

The "prior conviction" exception to Blakely

As a result of the decision in Almendarez-Torres, 523 U.S. 224 (1998), a "prior conviction" exception has been built into the Sixth Amendment's application in Apprendi and Blakely. That is, both Apprendi and Blakely state that its rule requiring certain facts to be proven to a jury beyond a reasonable doubt or admitted by the defendant only applies to facts "other than the fact of a prior conviction."

The theoretical soundness of this exception has been widely questioned, and Justice Thomas' own comments about Almendarez-Torres suggest that there are no longer five votes on the High Court in support of this exception. Nevertheless, the "prior conviction" exception remains good law (for now), and we are seeing courts in the wake of Blakely giving this exception a fairly broad reading.

For example, in US v. Quijada, NM 04cr0516 (D. N.M. July 28, 2004) (first discussed here), Judge James Browning concluded based on the Tenth Circuit's decision in Cooper v. US, 2004 U.S. App. LEXIS 14865 (10th Cir. July 19, 2004), that a "judge, by a preponderance of the evidence, can and should decide facts related to a prior conviction, not just the fact of conviction." Slip op. at 10 (emphasis added). Notably, the Cooper ruling does not directly address whether Blakely could be read to suggest that a jury and not a judge must make factual findings regarding the nature of a prior conviction. Stil, I think Judge Browning is right to view the Tenth Circuit's decision in Cooper as binding precedent indicating that a range of auxillary facts relating to a conviction escapes the Apprendi/Blakely rule. Here's the full decision in US v. Quijada:
Download us_v_quijada.pdf

Similarly, a few recent state cases have suggested the Almendarez-Torres "prior conviction" exception has broad reach (though without exploring in depth the precise scope of the exception). For example, in State v. Sour, 2004 Ohio App. LEXIS 3689 (July 30, 2004), not only did an Ohio intermediate appellate court suggest that Blakely does "not apply to the findings necessary to impose consecutive sentences," it also suggested that even after Blakely "the trial court also was entitled to take note of the fact that [the defendant] previously had been placed on judicial release or probation and revoked." Likewise, in People v. Ochoa, 2004 WL 1719242 (Cal. App. Aug. 2, 2004), a California intermediate appellate court held in an unpublished opinion that, due to the "prior conviction" exception, "the trial court could properly rely on the fact of appellant's status as a probationer without a jury determination in imposing the aggravated term."

UPDATE: I have been meaning to highlight this important and insightful point that attorney Bill Fick has made in the comments that merits mention here:

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: US v. Shepard, 03-9168

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.


August 5, 2004 at 08:04 AM | Permalink

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A couple of other examples of courts mumbling about the prior conviction exception post-Blakely:

In United States v. Sanders, 2004 WL 1647386 (8th Cir. July 26, 2004), the Eighth Circuit reviewed a sentence imposed under 18 U.S.C. § 924(e) on a defendant who “had three burglary convictions (that is, three violent felonies for purposes of § 924(e))[.]” Id. at *2. The defendant did not challenge the finding regarding his prior offenses on appeal. However, the Court, clearly conscious of the need to consider sua sponte the possible Blakely implications of every sentencing, noted:

In reaching this conclusion, the district court did not engage in judicial fact finding offensive to the holding in the United States Supreme Court’s recent landmark decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). While the Court declared unconstitutional any increase in penalty beyond the prescribed statutory maximum based on facts not submitted to a jury and proved beyond a reasonable doubt, the Court expressly exempted 'the fact of prior conviction.' Id. at 2536. Here, the statute defines burglary as a violent felony for purposes of 924(e). Thus, in concluding Mr. Sanders’s history contained three violent offenses, the district court did not have to find burglary qualifies as a violent offense.

Id. at *2 n.3. In other words, because it was *clear* that the convictions at issue satisfied the statute, and no factual dispute existed, the district court was not required to “engage in judicial fact finding offensive to the holding in” Blakely. The implication is that Blakely *is* implicated in a case in which the district court must make a factual determination as to whether a prior conviction satisfies the applicable statute or guideline.

In addition, one district court has suggested that Blakely may require indictments to allege prior convictions that will be used to enhance the defendant's sentence. In Wilson v. McGinnis, 2004 WL 1534160 (S.D.N.Y. July 8, 2004), Judge Alvin K. Hellerstein stated (in dicta): “Due process requires notice of sentence enhancements based on recidivism. . . . Indeed, notice of the enhancement probably has to be alleged in the indictment. Blakely v. Washington, 72 U.S.L.W. 4546 (June 24, 2004).”

Posted by: SM | Aug 5, 2004 10:04:57 AM

I have a brief due 10-22. The Court agreed that it could not "find" my client was a career offender. US v Mosley #04-3005 EDMo (8th cir). Your material was helpful in my objections to the PSR and so far in prepping the brief. Thanks. Any additional comments will be greatly appreciated.

Posted by: Mark Hagemeister, atty | Oct 11, 2004 3:03:25 PM

I am a student who is trying to research the enhancemenmt law (Blakely vs washington). None of the sites I have visited gives any understandable info. What is the issue and how does this affect people in jail for non-violent crimes and does this even shorten there terms or even benifits them? please help!! thanks!

Posted by: elsa lopez | Feb 22, 2005 2:24:24 PM

My son was sentence to 300 months in a federal prison for possession of a firearm by a convicted felon. It sentence was enhanced and he was considered an armed career criminal with three prior conviction that ran concurrent in state prison.We are trying to appeal his sentence, can you direct me in the right areas as to how to write a brief to reduce his sentence.

Posted by: Rita Smith | Apr 5, 2005 12:33:38 PM

My son robbed 3 gas stations with a gun, he was 16 years old and was tried as an adult. He did a plea bargin down to 2 robberies and 1 gun spec. He got 3 years mandatory for the gun and got 2 seven years that ran together giving him 7-10 years, This is too much time for a kid that is now 21. Where can I find out if he falls under the Blakley vs. Washington?

Posted by: Vonda | Apr 24, 2005 3:05:06 PM

Recently completed graduate school (GPA 3.96). Two years ago my brother was convicted under federal drug conspiracy laws and sentence to 45 years in prison (no parole). Prior to that time I ignorantly believing in the American justice system. Didn't realize federal court, at least those in the 5th circuit, no longer acknowledged or upheld the US Constitution. Never dreamed the standard for criminal conviction had been reduced from "beyond a reasonable doubt" to a mere "preponderance of testimony provided by the bribed and threatened." Today, I have absolutely no faith what-so-ever in our federal justice system.

Posted by: Iris White | Jun 3, 2005 9:48:07 PM

Could someone point me in the right direction to find information about how this will effect consecutive sentencing. My husband was given 23 years for an alcohol related car crash in Oregon. Under our measure 11 he will serve every day if he can not get a new trial. He was not driving.

Posted by: tyra young | Sep 11, 2005 2:43:31 AM

Hi, my husband was convicted on dry conspiracy drug charge. He's recently been sentenced to 97 month in federal system with no prior convictions. Please advise how blakley or is their any other avenues we can explore to get my husband sentenced reduced.

Posted by: Deanna Williams | Sep 12, 2005 9:13:51 AM

I'm going to be sentenced on December 20 2005 on a charge of felon in possesion of a firearm. I'm trying to find out if the the blakely vs washington applies to my case. I had a three part indictment two parts were dropped.

Posted by: Phines Vaughn | Sep 22, 2005 9:30:40 PM

My son was convicted of one count of intimidation (of a judge) and one count of retaliation. First time offense as an adult.. He was given 4 years by the judge. Could you tell me if the Blakely law would apply in his case?

Posted by: Vickie Richmond | Sep 25, 2005 2:52:59 PM

My son is undecided if he should take a plea from the Federal Government. He is charged with conspiracy with the intent to distub cocain and the feds say they have a wire tape. Does he have a right to hear this wire tap before he accepts the plea?

Posted by: Starr | Sep 30, 2005 10:09:06 PM

hi, my brother has been sentenced to 6 years in prison for possesion of drugs. he has been in prison for four years and has two more to go. this is his first offense, please let me know if blakley would apply to his case?
thank you

Posted by: melissa munoz | Nov 14, 2005 8:15:55 PM

My brother was on parole for a previous violent crime(felonious assault) he violated his parole by taking his wife's purse and assaulting her. He was told if he didn't have a trial he would get the maximum 18 most to 3 years , he got 8 years. The cause of his crime was drug addiction. He had a dirty parole officer that used his addiction to his benefit.He busted drug dealers for his hometown police dept because he was told if he didnt he would go to prison. The police supplied his money for his addiction and ofcourse he committed a violent crime. I am not making excuses for him and he should pay for the crime but i am wondering if he was convicted fairly. How can police officers and parole officers live withthemselves knowing they are leading men back to prison instead of helping them. They wrote him off as a lifetime criminal and didnt care. They got all the glory in the drug busts and the drug dealers did not go to prison because they had alot of money to pay lawyers. He has since beeen diagnosed with bi-polar and is taking medication.
Why don't we try to help and re-habilitate men that go to prison. They usually only make it a year and then end up back there. Most are mentally ill. My brother will spend his life in prison . He has been ruined. The judge looked at his background and said 8 years is fair. He is 40 years old and has spent half of his life in prison.Can someone please stop the cycle ?

Posted by: cynthia kless | Nov 22, 2005 11:38:51 AM

Hello,my son was sentence to 25 years under the Florida State Law 10-20-life in 2000 he was 16 years old at the time with no prior record or conviction,He was charge with drug trafficking,but police found no drugs, it was a setup that went bad by the law enforcement,because our son had a gun they charge with attempted murder,which no one was injury.Another for attempted robbery no money was taken. My son PD told us that our son will need to take a plea and not go to trial because the judge will give him life.I want to know if our son can be helped by the Blakely Law, or can we get any kind of help to reduce our son sentence.

Posted by: Michael Howliet | Dec 4, 2005 7:05:40 PM

iam currently on a conspiracy case with no evidense and a wiretap where i dont even speak about any drugs i have 1 prior conviction can someone help me out please god bless

Posted by: Sonny McCall | Feb 18, 2006 2:38:59 PM

my son was sentenced for 2 counts of involuntary manslaughter for the accidental drowning death of his twins.he was told by the prosecutijg attorney and his attorney at the time if he plead guilty there would be no jail time or fine recommended.so he changed his plea to guilty and on the day of his sentencing the prosecuting attorney recommended the max for each count. the judge sentenced him to two consecutive 4 yr rerms. this was his first offense and the presentence investigation recommended 1 yr work release and 5 yrs parole. the judge said in chambers to the prosecutor and son's attorney he was going with the presentence recommendation. we went into courtroom and after the wife's family and friends and her gave their well composed theatrical speeches the judge gave him the above sentence.the judge changed his mind on sentencing after hearing the speeches. was he within the law to do this? doesn't blakely vs washington address this very thing?

Posted by: pam | May 15, 2006 9:15:23 AM

My daughter got taken away from me and give to her father and will not let me see her or call her what can i do with this mess.T court will not help me in any way what so every.

Posted by: Joann Phillips | Jun 14, 2006 8:34:33 PM

my bro was convicted of cocaine pos in 98 then a sex crime in 99 then another cocaine pos in o1 sentenced to 6 years did 4 2 years left on paper police served a warrant in ahouse were he was a 22 rifle was in the closet he was arrested then bonded out then in sept o5 he and afriend got in a wreak the freind ran a hand gun was found and 3 ounces of coke the police waited 2 months then arrested him put him on parole hold when he went to court the case was tranfered to the feds whats his chances of getting of?

Posted by: thomas miles | Jul 5, 2006 10:09:12 PM

I am the father of a son who is incarcerated in one of Ohio's Correctional Institutes as a "First Time Offender". He received a sentence of over 150 years. Of course we (parents and family) thought it to be an overkill. Please explain in layman's terms how the Blakely vs Washington case may effect our son.

Thank you.

Posted by: E.Robinson | Jul 20, 2006 9:47:45 AM

Hello, August 2003 my son was convicted of B & E with NO firearms involved. He was 15 years old at the time and was bound-over and tried as an adult. This was his first offense other than a few things like unruly child counts in juvenile court. We could not afford an attorney so the court appointed one. On his court date his father and I sat in the hall of the court house, thinking we were waiting to be called in, while the attorney was having a meeting with him. He was 15 yrs old with no knowledge of the law or his rights and was advised not to go to court but to take a plea bargin which would probably be 3 years and ended up getting 6 yrs. There were 3 other youths involved in this ordeal who have been in and out of prison since then several times and were all given less time even though he was the youngest. He has struggled thru these last 3 yrs being moved around to approximately 5 different prisons in Ohio. During his stay he has been taunted and beaten by his CO's and was given an additional 6 months-- please tell me what I can do or what step to take first before something really bad happens to him. I know its hard to believe, but he is a good kid who has made some mistakes and has been forced to grow up fast and is now 19. While in prison he has gotten his GED and been trying to stay out of trouble but it seems that almost on a daily basis especially being in this younger group you almost have to fight your way thru daily in a "close security" prison where he rooms with murders etc. Please tell me just where to start and if he falls under the Blakley vs Washington.
So many thanks.

Posted by: Lisa | Sep 6, 2006 8:30:29 PM

AFTER READING THESE QUESTIONS I REALIZE MY BROTHER IS NOT THAT BAD OFF. HE DOES HAVE NUMEROUS PRIERS OF B/E
BUT NONE WAS WITH A WEAPON NOR NO ONE WAS HURT.
HE JUST HAS A JUVENIAL RECORD AS WELL AS ADULT. HE WAS SENTENCED TO 5 YEARS UP FOR PAROLE IN A 1YR. DID HIS TIME GOT OUT ON PAROLE COMPLETED IT AND THEN COUGHT MORE CHARGES OF THE SAME I THINK 3RD B/E/THEFT/AND CONSIRCY TO COMITT B/E.THERE IS A COUPLE PROBLEMS THOUGH, ALL OF HIS CHARGES ARE THE SAME FROM CHILD HOOD.IN AND OUT OF JUVIE HALL AND SO ON.ADULT PRIORS. HE WAS SENTENCED TO 6 MONTHS FOR MUNICBLE COURT FOR THEFT,FLIPPED OUT IN THE COURT ROOM AND STARTED BANGING HIS HEAD ON THE TABLE THREATING TO KILL HIMSELF,THE COURT SENT HIM TO A MENTAL HOSPITAL AND HE
LEFT FROM THERE WHILE PENDING HIS 6 MONTHS IN COUNTY
AND HE HAS THE B/E FELONY CHARGE STILL PENDING.HE DID APEAL FOR THE COUNTY CHARGE AND GOT THE APPEAL BUT LEFT BEFORE HE COULD GO TO REVERSE THAT CHARGE.
WHAT IS HE LOOKING AT WHEN HE GOES TO COURT DOES ANYBODY KNOW? HE IS MENTALY ILL THAT IS WHY THEY PUT HIM IN THE NUT HOUSE.WHAT IS GOING TO HAPPEN TO HIM. HE NEVER HAS HAD ANY ASSOULT CHARGES NOR WEAPON CHARGES EITHER. WHILE IN PRISON SERVING HIS 5YRS HE GOT HIS GED ATTENTED COLLEGE AND COMPLETED NUMEROUS
DRUG PROGRAMS WILL THIS HELP HIM WHEN HE GOES TO COURT AGAIN? HE HAS NOW BEEN OUT OF TROUBLE FOR 3 YEARS BUT STILL HAS THESES CHARGES PENDING. WILL HE BE OK?

Posted by: CHRIS | Sep 9, 2006 6:02:23 AM

My son was a first time offender a friend robbed the store my son was working at with a gun, he received a mandatory sentence of 3 yrs for the gun spec. and never touched the gun. Is there a 1 yr gun spec law if the defendent never touched the gun?

Posted by: michelle | Jan 8, 2007 8:34:28 AM

my son is a first time offender, an acquatance robbed the store he worked at with a gun, my son was sentenced to 3 yrs mandatory but never touched the gun or did the actual robbery, is there a 1 yr gun spec law that states if the defendent never touched the gun this would have been his sentence?

Posted by: michelle | Jan 8, 2007 8:36:52 AM

I heard there is going to be a major supreme court ruling on blakely vs. washington based issues that will affect everyone, who is trying to file a "blakely" appeal. Is this true? The decision by the supreme court should be anytime now. Pls clarify me on this important matter. thank you.

Posted by: John | Mar 3, 2007 9:30:47 PM

I have a friend who has 10 years mandatory sentencing because he is a convicted felon. Apparently, an individual was shot and gave a statement accussing him as being the perp. My friend continued to plea not guilty until his attorney advised him that there was a possibility of him getting 20 years so it would be best to plea no contest and take the 10 years because of his prior record. Not to say that the two individuals have not had pass run-ins or arguements on the streets, but there was no witnesses to this incident, no gun found in this situation, no nothing. He has been incarcerated now for about 5 years with no troubles. Is there a way to have the mandatory lifted so that he could at least earn his gain time since he has not been in any trouble while incarcerated especially with no evidence just the other parties statement. My friend was more or less afraid of getting a 20 year sentence in fear of the judge looking at his priors and feeling as though he would not even stand a chance due to prior convictions so he plead no contest.

Posted by: Brandy | Mar 24, 2007 5:38:24 PM

i was indicted by feds for felon in possesion of firearm and am wondering how to deal with it with low budget and what kind of sentencing to expect previous record 10 years ago for possesion of drugs served 3 years finished parole any response would be appreciated

Posted by: james godwin | Nov 26, 2007 10:19:39 PM

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Posted by: laptop battery | Oct 14, 2008 5:30:22 AM

I'm doing research for a friend who is currently incarcerated... She's 81 years old with no prior convictions, ever! There seem to be many inconsistencies with her sentencing and I'm just beginning my research and information gathering process. Thank you.

Posted by: Giovanna | Jan 7, 2009 1:47:27 PM

He got 3 years mandatory for the gun and got 2 seven years that ran together giving him 7-10 years, This is too much time for a kid that is now 21.

Posted by: Robe de Soirée 2013 | Dec 14, 2012 1:28:05 AM

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