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May 6, 2005

Judge Easterbrook spotlights fact/law distinction in prior conviction exception

Today in US v Carpenter, No. 04-2270 (7th Cir. May 6, 2005) (available here), Judge Easterbrook, speaking for the Seventh Circuit, provides an astute account of why the "prior conviction" exception might extend to matters beyond the "bare fact of a prior conviction" (which is how the exception has been limited in Oregon):

Criminal history is all about prior convictions; its ascertainment therefore is an issue of law excluded by Booker's own formulation and governed by Almendarez-Torres v. United States, 523 U.S. 224 (1998).  Neither judges nor juries pass on the wisdom of legal rules case by case, and Booker (like its predecessor Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who finds facts rather than what legal consequences those facts may have. See McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005).  That is why we held in United States v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7, that Booker does not affect the process of deciding whether a prior offense is a crime of violence.

As the Court explained in Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to classify and take into account the nature of a defendant's prior convictions, provided that the judge does not engage in factfinding about what the accused did (as opposed to what crime he has been convicted of).  Carpenter does not contend that the judge went behind the existence of his priors to engage in a factual rather than a legal analysis of his former criminal behavior. (Part III of Shepard, which we have cited here, was joined by only four Justices, but another three Justices concluded that recidivist enhancements never create problems under the sixth amendment, so Part III speaks for the Court as a practical matter.)

I view Judge Easterbrook's discussion as astute because, as I explained in the latter part of my Conceptualizing Blakely article, "the Blakely ruling's emphasis on 'fact' finding — and [because] questions of fact are traditionally considered the province of a jury, while questions of law are traditionally for judicial determination — one might [identify] a fact/law distinction at heart of the Blakely principle." As explained in that article, "historically there has been precious little development or even consideration of the distinction between questions of fact and questions of law at sentencing," but I think such a distinction can and should become much more significant and much more fully developed in the wake of Blakely.

May 6, 2005 at 05:47 PM | Permalink

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