June 14, 2010
SCOTUS confirmation that the prior conviction excpetion to Apprendi is here to stay
Sentencing and clemency guru Margaret Colgate Love wrote me today to suggest that the biggest sentencing news coming from all today's SCOTUS action (basics here) is to be found in the immigraion case Carachuri-Rosendo v. Holder (available here). In Carachuri-Rosendo, the Justices ruled that "that second or subsequent simple possession offenses are not aggravated felonies [requiring deportation] under §1101(a)(43) when, as in this case, the state conviction is not based on the fact of a prior conviction." And here is what Margaret Colgate Love had to say about why this is a notable ruling for sentencing fans:
Biggest news this morning on sentencing front is in Carachuri-Rosendo [because the] Court unanimously backs away from constitutionalizing recidivist sentencing. It reaffirms Almendarez-Torres, both on 5th and 6th A grounds and nobody says a word in defense of overruling it. Thomas concurred apparently just to let us know rather gracefully, by not mentioning A-T, that he has given up hope of Court overruling it. (It seems that all the hype in circuits about A-T being on life support was just that.)
The Court also said that notice of intention to charge priors under 851 was not constitutionally compelled. Stevens was all business, no prose more purple than "counterintuitive and unorthodox." Though 851 has no constitutional underpinning, it is a way to limit recidivist enhancements in drug cases. As to other types of enhancements, I thought his note 12 was very significant for ACCA and other gun recidivist enhancements, in requiring that prior must appear as part of the judgment or formal charging document (a fairly substantial expansion/clarification of Shepard).
June 14, 2010 at 04:18 PM | Permalink
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Doug, I agree that Carachuri means that Almendarez Torrez has escaped Justice Thomas' premature announcement of its death in Sheppard, "A majority of this Court believes AT was incorrectly decided" Also, the Apprendi exception is solid, as I think it should be.
However, the big issue, to me, is Justice Scalia and Thomas' break with the majority on why. I think they both see a difference between being "convicted" of a felony and being convicted of a misdemeanor which is "punished" as a felony.
I think Scalia's opinion is consistent with my premise in the "Kicked Up Misdemeanors" article in the Federal Sentencing Reporter. That is, conviction of a second misdemeanor doesn't convert the "conviction" to a felony, although the second conviction can increase punishment to a level associated with felonies.
"A defendant is not 'convicted' of sentencing factors, but only of the elements of the crime."
I think the Court is having a hard time keeping a grip on the distinction between a sentencing factor and an element. As I wrote in the article, recidivism can be a sentencing factor which raises punishment to a felony level, but I don't think recidivism can be an element of a substantive crime.
What do you think about Carachuri, Soronel?
Posted by: bruce cunningham | Jun 15, 2010 3:38:03 PM
Unless I misunderstand what the prior conviction exception covers I fail to see why it is an issue. A conviction means that the charge has already been proved BRD (yes, even where the defendant pleads guilty rather than is found so by a jury). A later court is entitled, indeed is bound to accept that prior judgment is presumptively valid. Certainly there is some work required to determine exactly what the prior conviction actually /was/, but that is different from whether there was in fact a conviction. And the categorical rule and those such as those regarding the ACCA provide a pretty fair route, IMO, for determining what conduct the defendant pled to.
So who is going to argue, as an example, that for a felon in possession (of whatever prohibited item) charge that the prosecution actually needs to re-prove the prior felony? That simply makes no sense to me. Proving that the offender is in fact a felon and was aware of that fact should suffice. And once a fact is sufficient to meet a BRD prong it certainly ought to be enough when the burden is only preponderance. Although again, in the preponderance context the facts of what the prior conviction were is often more important than the bare fact of conviction per the felon in possession example.
Posted by: Soronel Haetir | Jun 15, 2010 4:36:45 PM
There are a number of scenarios in which it is reasonable to expect at least some showing in connection with a prior that increases the sentence beyond the otherwise applicable maximum. The issue could be as simnple as mistaken identity (e.g., shouldn't the government at least have to prove BRD that you are the same John Smith that robbed a bank ten years ago in Tuscaloosa, as is required for drug priors under 21 USC 851(c)(1)?). More frequently, esp. under ACCA, it can be important to know exactly what conduct was involved in the prior conviction, and when it took place. Recognizing this, and without disturbing Alamendarez-Torres,the Court has narrowed the kinds of documents that can be considered in determining what happened and when, most recently in Shepard. The Court appears to have taken Shepard a rather large step further in footnote 12 in Carachuri, as if, in closing the door on hopes that A-T might be overruled, it wanted to say something about the context in which A-T has led to the greatest injustice. Anyone who has seen a person acquire a criminal career worth 15 years in less than half an hour knows what I'm talking about!
Posted by: margy | Jun 15, 2010 9:33:14 PM
I believe under the facts that the court got Carachuri right. That the TX prosecutor did not choose to charge the second offense as a felony for whatever reason renders Carachuri free from mandatory deportation. I have no idea whether the feds can try for discretionary deportation, the legal maneuvering of the immigration courts is not something I follow.
That doesn't mean I don't think the TX prosecutor lacked the /option/ of such a charge, it just wasn't exercised. If Carachuri had been convicted of the felony I believe the case would have correctly come down the other way. Carachuri got a break, I hope it was a deserved one.
Posted by: Soronel Haetir | Jun 15, 2010 11:54:08 PM
Soronel, I agree the Court got it right, but I think Scalia has the better reason why.
Posted by: bruce cunningham | Jun 16, 2010 7:12:42 AM
I may be missing something here and admit that I have glanced at the opinion and know very little about immigration law. However, how does this case have anything to do with validating the Almendarez Torrez exception to Apprendi? Apprendi was based on two underpinnings, the Sixth Amendment right to a jury trial and the Due Process right to a determination beyond a reasonable doubt for purposes of a criminal conviction. I am assuming, but do not know, that deportation proceedings do not involve these rights? What is the standard of proof that was involved with this matter? There are no jury trials in the type of proceeding that was involved in this case?
Posted by: Tim Holloway | Jun 16, 2010 10:05:57 AM
Good question -- but the answer explains why the SG took the position it did in this case despite a more pro-defendant position by its client agency DHS (and BIA too).
In its decision in C-R, BIA took the position that immigration authorities should be limited in their consideration of priors in much (though not quite) the same way that sentencing courts are, by virtue of the subconstitutional rules of Taylor and Shepard. This makes removal based on agg felony more difficult (C-R hiimself would not have been removable in any but 5th and 7th circuits). If someone is deported based on agg felony, prosecutors can seek higher penalty (20 years, up from 2 years)if the person subsequently reenters illegally (as C-R himself did). In prosecutions for illegal reentry after removal based on agg felony, sentencing courts must consider whether priors were properly considered in predicate deportation proceeding -- not BRD but with limits on what information about priors can be considered. It is note 12 that purports to be about ACCA that secures this half loaf, even as the Court told us we have to learn to live with a lower standard of proof.
Posted by: margy | Jun 16, 2010 12:53:38 PM
(I am an assistant federal defender; your blog is right up there with sliced bread and air.)
What "big news"? The only Almendarez-Torrez issue that the court conceivably "backed away from" was the government's request that an IJ be allowed to find the existence of a prior in immigration proceedings the same way a criminal court judge can in criminal sentencing proceedings. That was sensibly rejected because the statute required a finding that the defendant had been "convicted" of an aggravated felony and not, for example, that he had some broader or vaguer connection such as that he had "committed" an aggravated felony.
The petitioner did not ask the court to reconsider Almendarez-Torrez and there was no need to reach that constitutional issue where construing the statutory language was completely adequate to resolve the case in his favor.
Posted by: Jeff Staniels | Jun 16, 2010 5:00:27 PM
Anybody see a risk that red circuits will conclude that a second possession offense is "punishable" as a felony under the CSA, even though the defendant was not "convicted" of an offense so punishable, since the word "convicted" (or "conviction"?) comes only from the immigration statutes?
Posted by: RW | Jun 16, 2010 6:55:26 PM
I was convicted back in 97 for a class D felony on a state case, simple possession. then I was convicted again back in 2002 through a plea agreement for 2.9g of cocaine powder in violation of Title 21 U.S.C. section 844 and 18 section 2.aiditing and abeiting. I been in supervision realese by the I.N.S. since then. It this case aplies to me? what can I do? I will apreciated if some body could give me some advice. I was trying to get ready a post conviction relief, but now I dont know what to do.
Posted by: william | Jun 17, 2010 1:38:44 AM
Hey.can u still challange the constitutianality of a prior felony conviction .in being indited as an habitul offender .in another state?
Posted by: Patrick hebert | Jul 9, 2010 11:59:30 AM