Sunday, August 23, 2015
"From Jones to Jones: Fifteen Years of Incoherence in the Constitutional Law of Sentencing Factfinding"
The title of this post is the title of this notable new paper now on SSRN authored by Benjamin Priester. Here is the abstract:
With tens of thousands of persons sentenced every year in the United States, the contemporary American criminal justice system places undeniable importance upon the constitutional constraints governing the scope of the permissible and impermissible exercises of factfinding authority by sentencing judges in the course of determining the specific punishment to be imposed upon an individual convicted of a criminal offense. Yet for the past fifteen years the United States Supreme Court has failed to provide doctrinal stability and consistency to this crucial area of constitutional law.
Even the most recent decisions, such as Alleyne v. United States (2013) regarding mandatory minimum sentencing provisions, have generated only more unpredictability in the doctrine and more disagreements among the justices’ viewpoints. The path to an enduring doctrinal solution is not readily evident, and the Court’s unwillingness to reach consensus leaves the constitutional law of sentencing factfinding trapped in an ongoing cycle of unpredictability and doctrinal incoherence.
August 23, 2015 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)
Saturday, June 28, 2014
"Juries and Prior Convictions: Managing the Demise of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this notable new paper by Nancy King now available via SSRN. Here is the abstract:
This essay offers a menu of procedural alternatives for coping with the potential, some would say inevitable, abandonment of the prior conviction exception to the rule in Apprendi v. New Jersey. It compiles options states have used for years to manage jury prejudice when proof of prior conviction status is required, including partial guilty pleas, partial jury waivers, bifurcation of the trial proceeding, stipulations, and rules limiting what information about the prior conviction may be admitted.
These options belie the claim that the exception must be preserved to prevent jury prejudice against defendants. For courts and legislatures interested in anticipating this development in Apprendi law, or interested in joining the states that already recognize that a prior conviction must be proven like any other element whenever it increases the penalty range beyond the range allowed without the conviction, this essay provides a handy reference to existing rules and statutes that could serve as blueprints for reform.
June 28, 2014 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (2) | TrackBack
Sunday, February 02, 2014
"Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi"
The title of this post is the title of this interesting and potent new paper now available via SSRN and authored by the always interesting and potent Nancy King. Here is the abstract:
This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned.
The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court's decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements — namely, that an offender’s criminal history was often unknown unless or until a warden recognized him — no longer exists.
An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.
February 2, 2014 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Monday, June 17, 2013
First-cut reactions as to what is big, and not so big, about Alleyne's reversal of Harris
I will likely have a lot to say about the specifics of the Sixth Amendment discussions in all the Alleyne opinions later today once I get more time to review the decision more closely. But I have three quick reactions about the ruling and its potential impact I wanted to share right away. I will give this trio of reactions these labels: big, not-so-big, could-be-huge.
The Big of Alleyne: though serious talk of a "Booker" fix to the advisory guidelines sentencing system has not had much juice for a very long time, the Alleyne ruling serves as a final nail in the "mandatory topless guidelines" idea that made the rounds as a potential legislative response to Blakely and Booker in the federal system. That "fix," which would have required judges to do fact-finding to raise guideline minimums without impacting maximums, depended on the validity and vitality of Harris. And Harris is now a goner.
The No-So-Big of Alleyne: though persons imprisoned now based on mandatory minimums triggered by judicial fact-finding might hope Alleyne is a new jurisprudential key to freedom, a host of doctrices may ensure very few new imprisoned persons get much benefit from Alleyne. For starters, the retroactivity doctrines of Teague and AEDPA may make it hard for those long ago sentenced to get their Alleyne claims even heard in court. Moreover, the harmeless error doctrines of Cotton and Recuenco may make it easy now for judges to say, even in those cases in which the issue can still be raised, that any Sixth Amendment error was harmless.
The Could-Be-Huge of Alleyne: there are any number of shaky exceptions and carve-outs to the full application of Apprendi doctrines, ranging from the prior-conviction exception of Almendarez-Torres to all sorts of efforts by lower courts to refuse to acknowledge Apprendi's potential impact on all sorts of judicial fact-finding that impacts punishment realities. If Alleyne (which comes just a year after Southern Union) portends a Court now willing and eager to keep taking up Apprendi issues and extending the reach of the Sixth Amendment, we all might be in for quite an interesting Sixth Amendment ride over the next few Term. (And, for the really creative, perhaps Alleyne could be combined with Peugh to perhaps even generate procedural protections even for federal defendants sentencing in a post-Booker world.)
Prior related post on Alleyne ruling:
- Per Justice Thomas in 5-4 SCOTUS split, Alleyne extends Sixth Amendment to findings triggering mandatory minimums
June 17, 2013 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (13) | TrackBack
Monday, January 07, 2013
SCOTUS cert grant and argument in cases (only?) hard-core sentencing fans should loveAfter its usual lengthy holiday recess, the US Supreme Court is back in action this week with a full slate of oral arguments and with plans to issue opinions in cases argued earlier this Term on both Tuesday and Wednesday. And, as well covered here at SCOTUSblog, the Justices got all the new year action off to a running start with a trio of cert grants which included a plea practices case:
The Supreme Court agreed on Friday to rule on the rights of non-Indian couples to adopt an Indian child over the objection of a parent who is a tribal member. That was one of three newly granted cases. The others deal with the remedy if a federal judge has some role in plea bargaining discussions, and a dispute among states over sharing the waters of a river that flows between them....
The Justices agreed to hear an appeal by the federal government in United States v. Davila (12-167), testing what the remedy is to be in a plea-bargained criminal case when a federal judge had some role leading up to agreement on the plea deal. The Eleventh Circuit Court ruled that, if the judge (in this case, a magistrate judge) has any role whatsoever in the plea talks, the guilty plea that resulted must be thrown out. The government petition argued that the guilty plea should be overturned only if the judge’s participation had resulted in prejudice to the accused.
If the issue that the Justices have now taken up in Davila is not intricate enough to scratch the procedural itch of hard-core sentencing fans, today's first scheduled SCOTUS oral argument should provide the perfect balm. Dan Richman provides at SCOTUSblog a great preview of the case in this post with the metaphysical title "When is a burglary a 'burglary'?". Here is how the post starts:
Because its application brings some of the federal system’s harshest mandatory penalties, and requires federal courts to categorize a diverse range of prior state convictions (most of which arose out of guilty pleas on undeveloped records), the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), has provided the Court with considerable business (and a fair amount of exasperation). Descamps v. United States, 11-9540, set for argument on Monday, January 7, presents the Court with yet another categorization exercise that highlights the tension between such exercises and the Court’s developing constitutional doctrine about when judges can find facts in criminal proceedings.
These paragraphs from Dan's terrific preview spotlights why anyone who enjoys (or hates) visiting Apprendi-land should keep an eye on Descamps:
While the issue is pitched as one of statutory interpretation, substantial constitutional concerns lurk just beneath the surface. As the Court explained in Cunningham v. California, under the Apprendi line of cases, the Sixth Amendment right to jury trial prohibits “a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” The doctrine’s focus on statutory maximums (which are rarely imposed), but not mandatory minimums (which always are) is an artifact of a line of cases that, on January 14, 2013, will, once again, be up for reconsideration when the Court hears argument in Alleyne v. United States. But the rule’s carve-out reflects the continued vitality of Almendarez-Torres v. United States, which held that fact-finding as to the existence of prior convictions can be done by judges, not juries, even when such findings can increase a defendant’s statutory maximum. Because this carve-out is a glaring exception from the constitutional rule, the Court has patrolled it carefully, in cases like Shepard v. United States, which limited the universe of materials a sentencing court can consult to determine what the jury in the prior case was actually required to find, or what the defendant necessarily admitted....
Although the Court specifically refused to grant that part of Descamps’s petition asking for Almendarez-Torres to be overruled, it will be interesting to see whether hostility to that case drives oral argument. By Justice Thomas’s tally in Shepard v. United States, “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” So look for the Justices to limit the Almendarez-Torres carve-out by making inquiries into the nature of prior offenses as mechanistic as possible. Given the warnings by lower courts of the practical and constitutional difficulties raised by the Ninth Circuit’s outlier approach, we should expect the government to face an uphill battle. And, for all its technical aspects, it is one worth watching, as the heaviness with which the federal hand comes down on a lot of defendants depends on how their prior criminal convictions get categorized.
UPDATE: The oral argument trascript in Descamps is now available at this link. I will blog about anything interesting I find within it if/when I have time this evening (in other words, if the National Championship game gets boring).
January 7, 2013 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack
Tuesday, November 27, 2012
NYCDL amicus brief in Alleyne with an offense/offender kicker
As long time readers know, in first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a Stanford Law Review article, and unpacked it further (with Stephanos Bibas) in Making Sentencing Sensible. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
Consequently, when the Supreme Court decided it would take another trip to Apprendi-land by granting cert in Alleyne to consider the continued validity of the Harris mandatory minimum limit on the the Apprendi rule (basics here and here), I was interested in pitching the Justices yet again on the idea of incorporating an offense/offender distinction into some part of this jurisprudence. Wonderfully, a terrific group of New York lawyers reached out to me about helping the New York Council of Defense Lawyers on an Alleyne amicus brief, and they were willing to add an offense/offender "kicker" to NYCDL's arguments for overruling Harris. The NYCDL brief in which I lended a hand was filed yesterday and can be downloaded below. Here are two key paragraphs from the summary of argument:
As this Court has applied Apprendi’s holding over the last decade, several Justices have expressed con-cerns about the rule’s potential impact on trials and sentencing. As NYCDL’s experience in New York federal and state courts shows, any such effects will be minimal. New York’s federal courts, for example, have operated for seven years under a paradigm for drug offenses that substantially parallels the structure all courts would face should this Court overturn Harris. Practitioners there have been able to apply Apprendi’s rule to drug offenses with relative ease: from the indictment to the jury instructions or to the plea allocution, New York prosecutors and defense lawyers are able to address any facts that expose defendants not just to increased maximums, but also to increased minimums. Similarly, criminal defense attorneys in New York state courts regularly confront situations where a jury is required to find facts that trigger a mandatory minimum sentence, without apparent difficulty or inefficiency. These experiences buttress Petitioner’s argument that “there are no practical impediments to overruling Harris.” Pet. Br. 42.
Moreover, any of the enduring practical concerns identified by certain Justices can be addressed by adopting an approach to overruling Harris that distinguishes between facts that are specific to the offense and facts that are specific to the offender. The Constitution’s text requires that all facts relating to the alleged “crimes” at issue must be stated in the indictment and presented to the jury, which the Due Process clause requires to be proven beyond a reasonable doubt. To avoid a requirement that aggravating facts concerning an offender’s past be presented to the jury if such offender-specific characteristics implicate a mandatory minimum, the Court should draw a line for Constitutional purposes that allows judicial determinations of offender-specific facts that are relevant to sentencing, so long as such facts do not alter the range of applicable sentences. Such a rule comports with the particular competencies of the jury and judge: The jury’s traditional role is to answer questions about the criminal conduct alleged in an indictment, while the judge has historically been expected to assess broader offender-based considerations such as an offender’s criminal history, amenability to rehabilitation, and correctional treatment. Where, as here, a sentencing judge acts as “the reverser of juries” in finding offense-related facts only by a preponderance of the evidence, the sentence is unconstitutional. The decision below should be reversed.
November 27, 2012 in Almendarez-Torres and the prior conviction exception, Blakely in the Supreme Court, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing | Permalink | Comments (1) | TrackBack
Friday, September 21, 2012
AEDPA, Apprendi, Almendarez-Torres (oh my!) debated in full Third Circuit opinionJust in time for the weekend, the Third Circuit has today issued a lengthy en banc opinion in Garrus v. Sec’y PA Dept. of Corrections, No. 09-3586 (3d Cir. Sept. 21, 2012) (available here), which is sure to warm the hearts (and printers) of all truly hard-core habeas geeks and sentencing fans. Here is how the lengthy opinion for the majority gets started:
William Garrus (“Garrus”), a Pennsylvania state prisoner, seeks federal habeas relief under 28 U.S.C. § 2254, as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Garrus was found guilty in state court of voluntary manslaughter in 2001. At sentencing, the judge increased his sentence beyond the statutory maximum based on 42 Pa. Cons. Stat. § 9714, Pennsylvania‟s “three strikes” law. In order to do so, the judge made a judicial finding that Garrus had previously been convicted of burglarizing an occupied building, when, in fact, he had only pled guilty to, and been convicted of, second degree burglary (which, under Pennsylvania law, necessarily requires that the burglarized building was unoccupied). In the habeas petition now before us, Garrus argues that this judicial factfinding violated the rule of Apprendi v. New Jersey, requiring that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490 (2000). The District Court denied the petition on the basis that the highest state court determination upholding Garrus's sentence was not contrary to or an unreasonable application of clearly established Federal law.
Key to our determination is a single question: whether, pursuant to AEDPA, the state court unreasonably applied Apprendi by allowing Garrus to be sentenced beyond the statutory maximum based on a judicial finding that Garrus burglarized an occupied building, despite his plea to the contrary. For the reasons set forth below, we hold that the state court determination upholding Garrus‟s sentence was objectively unreasonable, and that Garrus is entitled to habeas relief. Accordingly, we will reverse the order of the District Court.
Here is how the lead dissent (per Judge Greenaway) gets going:
Under the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Congress vested the Supreme Court — and only the Supreme Court — with the authority to determine clearly established law for purposes of analyzing an inmate‟s federal challenge to a state court judgment. Today, the majority feigns fidelity to this enduring tenet of AEDPA jurisprudence. In the process, the majority assumes the role of legislator, rewriting AEDPA to add this Court, along with the Supreme Court, as the two judicial bodies capable of delineating clearly established law. Armed with this newly created authority, the majority wades through murky Supreme Court precedent and emerges with what it purports to be an unassailable legal principle: that the prior-conviction exception enshrined in Apprendi v. New Jersey, 530 U.S. 466 (2000), forbids a sentencing court from finding facts inconsistent with a prior conviction when applying a state recidivism statute.
Unlike the majority, I cannot discern any principle in Apprendi or other authoritative Supreme Court precedent that would render this interpretation of the prior-conviction exception objectively unreasonable, the deferential standard by which we must judge the state court's determination. Indeed, the majority identifies not one Supreme Court case expounding on the contours of the amorphous prior-conviction exception. This lack of clarity coupled with the inherent tension between Apprendi and Almendarez-Torres v. United States, 523 U.S. 224 (1998) — a controlling case the majority brushes aside as having limited relevance — belies the majority's triumphant conclusion that the state court‟s determination was objectively unreasonable.
I do not disagree that the majority's interpretation of the prior-conviction exception is a reasonable and even favorable one, preventing an otherwise seemingly inequitable result. Of course, our task is not to simply choose the preferred reading of an ambiguous legal phrase. Absent guidance from the Supreme Court, we are left to determine whether the state court's interpretation was objectively unreasonable. Given that this area of law is, at best, in a state of flux, AEDPA “demands that [the] state-court decision be given the benefit of the doubt.” Renico v. Lett, --- U.S. ---, ---, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks and citation omitted). For this reason, I am compelled to respectfully dissent.
Thursday, May 17, 2012
Juve priors, sentencing enhancements and Almendarez-Torres makes SCOTUS relist watch
Hard-core Apprendi/Blakely fans (and perhaps only hard-core fans) should be excited to discover this paragraph that lurks deep within this latest installment of John Elwood's always amusing reviews at SCOTUSblog of relisted and held cases on the Supreme Court docket:
Staunton v. California, 11-8851, involves whether the trial court’s use of a defendant’s prior juvenile adjudication, in which he was not afforded a jury trial, to trigger a sentencing enhancement that doubled his state prison sentence violated his right to due process and a jury trial under the Sixth and Fourteenth Amendments. The Court’s decision in Almendarez-Torres v. United States (holding that the fact of a prior conviction, used for a sentence enhancement, could be found by a judge rather than submitted to a jury) has lived sort of a shadow existence since the Court in Apprendi v. New Jersey said it was “arguabl[y] . . . wrongly decided” -– and since Justice Thomas, who provided the fifth vote for the rule in Almendarez-Torres, announced in an Apprendi concurrence that he had “succumbed” to error in that case. (In a later concurrence in part and in the judgment in Shepard v. United States, Justice Thomas observed that “a majority of the Court” -– the four Almendarez-Torres dissenters plus himself -– “now recognizes that Almendarez-Torres was wrongly decided.”) I have been amazed that even as Apprendi grew to engulf so much of sentencing, the Court has not revisited Almendarez-Torres –- despite relisting a couple of cases presenting the continuing validity of the case in January 2011, as discussed here. As Apprendi noted, Almendarez-Torres rested in part on the idea that the defendant enjoyed procedural protections at the time of the original conviction, and so the Constitution did not require that the fact of a prior conviction be tried to a jury when it was later used as a sentence enhancement. But Staunton did not receive that protection. Staunton is the third case this Term in which the Court has relisted notwithstanding that the respondent waived, and the Court has not requested, a response. The relist in those two cases was because of procedural wrinkles that needed to be ironed out; here, there is more of an indication that one or more Justices are taking a closer look — the Court here requested the record.
Tuesday, February 22, 2011
SCOTUS apparently still not interested in reconsidering Almendarez-Torres
A helpful reader highlighted to me that among the cases in which the Supreme Court denied cert this morning were Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Those case are notable for Sixth Amendment fans because, as noted in this prior post, (1) the Justices had called for a response from the government with respect to these two petitions, which urged reconsideration of the Almendarez-Torres prior conviction exception to Apprendi, and (2) the Court had thrice relisted these cases from its January cert conferences.
Based on the relists, the folks at SCOTUSblog were speculating that a cert grant was possible or that there might be at least a dissent from the denial of cert in the works. But now it appears that the relists were just a lot of sound and fury, signifying nothing: both cases resulted in one-line cert denieds today and nothing more. And so it goes.
Tuesday, February 08, 2011
Split Ninth Circuit ruling on reach of Apprendi's prior conviction exception in habeas appeal
A split Ninth Circuit panel has a notable little decision about Apprendi's reach today in Wilson v. Knowles, No. 07-17318 (9th Cir. Feb. 8, 2011) (available here). The majority opinion explains the issue and its holding this way:
The Supreme Court held in Apprendithat, except for the fact of a prior conviction, any facts that increase a defendant’s sentence beyond the statutory maximum must be proved to a jury beyond a reasonable doubt. See Apprendi, 530 U.S. at 490. The trial judge in this case found three additional facts about the 1993 accident that increased Wilson’s sentence to 25 years to life: First, that Wilson personally inflicted bodily injury on Horvat; second, that the injury was great; and third, that the victim was not an accomplice. These facts weren’t necessary to Wilson’s conviction, and there was no purpose in challenging them at the time. The issue is whether these findings fell within the prior conviction exception.
Courts may reasonably disagree about the precise boundaries of the exception. See Kessee v. Mendoza-Powers, 574 F.3d 675, 676 (9th Cir. 2009). For example, it isn’t clearly established whether a judge may find the fact that a defendant was on probation at the time of an earlier conviction. Id. at 678. But it would be unreasonable to read Apprendi as allowing a sentencing judge to find the kinds of disputed facts at issue here — such as the extent of the victim’s injuries and how the accident occurred. Those are not historical, judicially noticeable facts; they require a jury’s evaluation of witnesses and other evidence. See United States v. Brown, 417 F.3d 1077, 1079-80 (9th Cir. 2005) (per curiam). Nor did Wilson have any reason to contest them when he was convicted in 1993. See Apprendi, 530 U.S. at 488 (emphasizing importance of procedural safeguards during earlier proceeding). The judge’s factfinding years later extended beyond any reasonable interpretation of the prior conviction exception.
In dissent, Judge Kozinski makes these points:
[U]nder AEDPA, Wilson must point to a Supreme Court holding clearly establishing that a judge may not find facts about the offense underlying his prior conviction. See Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Read literally, Apprendi itself seems to limit judges to finding the mere fact of the prior conviction . But courts have sometimes read the exception more expansively. See, e.g., United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (Sotomayor, J.) (“In short, we read Apprendi as leaving to the judge . . . the task of finding not only the mere fact of previous convictions but other related issues as well. Judges frequently must make factual determinations for sentencing, so it is hardly anomalous to require that they also determine the ‘who, what, when, and where’ of a prior conviction.”). The Supreme Court hasn’t straightened all this out. The best we’ve been able to say is that the Court’s uncertain precedent “strongly suggests that the . . . exception does not extend to any and all facts related to a prior conviction.” Butler v. Curry, 528 F.3d 624, 644 (9th Cir. 2008) (emphasis added) (citing Shepard, 544 U.S. at 25-26 (plurality opinion)). This means that, as of 2008, we concluded that there was no clearly established Supreme Court authority as to whether the exception applies to anything other than the fact of conviction. The law certainly wasn’t clearly established when Wilson’s sentence became final five years earlier. Nor was the state court’s rejection of Wilson’s claim on these facts an objectively unreasonable application of the ambiguous language in Apprendi itself.
AEDPA deference can be a bitter pill to swallow.... In some habeas cases, we must reject what appear to us to be valid constitutional claims because the defendant’s rights have not yet been clearly established by the Supreme Court. This is such a case.
Thursday, January 27, 2011
Re-lists has experts pondering possible SCOTUS reconsideration of Almendarez-Torres
Anyone who has missed deep discussions of the Sixth Amendment and Apprendi jurisprudence in recent sentencing discussions — and you know who you are, fellow sentencing geeks — will likely get real excited upon reading this terrific new post by John Elwood at SCOTUSblog, which is titled "Re-list watch: Will the Court reconsider Almendarez-Torres?". The post merits a close read in full by all Apprendi aficionados, as this partial excerpt from the start and end of the post highlight:
In the landmark decision Apprendi v. New Jersey (2000), the Supreme Court held that a judge may increase a sentence only if the enhancement was based upon facts found by a jury beyond a reasonable doubt. The rule recognized only a single exception (and that grudgingly): the fact of a prior conviction, which the Court had narrowly upheld in Almendarez-Torres v. United States (1998), over the dissent of Justices Scalia, Stevens, Souter, and Ginsburg.
Almendarez-Torres has been subject to substantial criticism from the moment Apprendi was decided. The Apprendi majority itself acknowledged that “it is arguable that Almendarez-Torres was incorrectly decided.” And in a concurrence, Justice Thomas, who had been in the majority in Almendarez-Torres, said that he had “succumbed” to “error” in providing the fifth vote for that decision....
As noted here, the Court called for a response with respect to two petitions that ask the Court to reconsider Almendarez-Torres: Ayala-Segoviano v. United States, 10-5296, and Vazquez v. United States, 10-6117. Since the government filed briefs in opposition, the Court has relisted those cases three times, at the January 7, 14, and (apparently) 21 Conferences.
It is impossible to know with any certainty what the repeated relists mean. The relatively lengthy delay of three relistings suggests to me that someone has drafted an opinion dissenting from the denial of cert. — if the past is any indication, Justice Thomas, who has the zeal of the converted on this issue. I’ve discussed these cases with Tom, who thinks that Justice Kagan may be deciding whether to vote to grant. While on the Second Circuit, then-Judge Sotomayor noted the “tension between the spirit of [United States v.] Booker [(2005)] — that all facts that fix mandatorily a defendant’s sentence should be found by a jury or admitted by the defendant — and the Supreme Court’s decision in Almendarez-Torres,” but of course she was “bound by the Supreme Court’s ruling” in that case. United States v. Estrada (2d Cir. 2005).
Ayala-Segoviano and Vazquez will give us our first indication of what Justices Sotomayor and Kagan think about the validity of Almendarez-Torres — and about whether stare decisis warrants maintaining one of the most-criticized criminal law precedents still on the books. The change in the Court’s personnel (particularly the replacement of Justice Stevens with Justice Kagan) may mean there is finally a fourth vote to grant.
Monday, October 18, 2010
En banc Second Circuit rejects Apprendi challenge to NY persistent felony statute
It has been quite some time since Sixth Amendment fans have had a big, split Apprendi/Blakely opinion to chew on. Today the Second Circuit has filled the void with a big, split en banc ruling in Portalatin v. Graham, 07-1599 (2d Cir. Oct. 18, 2010) (available here). Here is how the majority opinion (per Judge Wesley) gets started:
Petitioners Carlos Portalatin, William Phillips, and Vance Morris were separately convicted in state court and received sentences pursuant to New York’s persistent felony offender statute, N.Y. Penal Law § 70.10. Each petitioned for a writ of habeas corpus on the ground that the New York courts engaged in an unreasonable application of clearly established federal law in affirming their sentences. Specifically, they argue that the Sixth Amendment guarantee of the right to an impartial jury, as construed by the Supreme Court in Apprendi v. New Jersey, 530 U.S. 466 (2000) and its progeny, proscribes the long-used sentencing procedure in New York that results in judicially enhanced sentences for certain recidivist offenders.
In the case of petitioner Portalatin, the United States District Court for the Eastern District of New York agreed, issuing a writ of habeas corpus from which the State now appeals. See Portalatin v. Graham, 478 F. Supp. 2d 385, 386 (E.D.N.Y. 2007) (Gleeson, J.). In the cases of petitioners Phillips and Morris, the United States District Court for the Southern District of New York separately declined to issue such writs. See Phillips v. Artus, No. 05 Civ. 7974, 2006 WL 1867386, at *1 (S.D.N.Y. June 30, 2006) (Crotty, J.); Morris v. Artus, No. 06 Civ. 4095, 2007 WL 2200699, at *1 (S.D.N.Y. July 30, 2007) (Sweet, J.). Petitioners appealed.
In a consolidated appeal, a panel of this Court concluded that New York’s persistent felony offender sentencing scheme violates the Sixth Amendment, and that the New York courts unreasonably applied clearly established Supreme Court precedent in holding otherwise, but remanded the matters to the district court for consideration of whether those errors were harmless. See Besser v. Walsh, 601 F.3d 163, 189 (2d Cir. 2010).
A majority of judges in active service then called for this rehearing en banc. The Court now holds that the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions. Accordingly, the grant of the writ to Portalatin is reversed, and the denials of the writ to Phillips and Morris are affirmed.
Here is a key passage from the start of Judge Winter's dissent:
My colleagues rely heavily upon AEDPA deference but identify only one constitutional argument dispositive of the claims of all petitioners -- regarding the applicable maximum sentences for Apprendi purposes -- and that one has been specifically rejected by the Supreme Court in Cunningham v. California, 549 U.S. 270 (2009) and Blakely v. Washington, 542 U.S. 296 (2004). Except for that discussion, my colleagues’ opinion never responds directly to petitioners’ claims and proffers no other identifiable constitutional theory to which AEDPA deference can be given.
We can all be virtually certain that one or more of the losing NY defendants in this case will appeal to the US Supreme Court. Less clear is whether the current Justices are interested in another round of Apprendi/Blakely squabbling. I would not be suprised if new Justices Alito and Sotomayor have an interest in sharing their perspectives on the reach of Apprendi/Blakely, but I also would not be surprised if most of the other Justices are content to take a pass.
October 18, 2010 in Almendarez-Torres and the prior conviction exception, Blakely in the States, Blakely in the Supreme Court, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10) | TrackBack
Monday, 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).
Monday, May 24, 2010
Notable statutory interpretation embrace of a basic offense/offender distinction for elements and sentencing factorsAs long-time readers or hard-core sentencing fans may know, when I was first trying to make sense of Blakely, I was drawn to distinguishing between offense conduct and offender characteristics in the application of Apprendi's "bright-line rule." I first developed this idea in my Conceptualizing Blakely article, advanced it in a StanfordLaw Review article, and further unpacked it (with Stephanos Bibas) in Making Sentencing Sensible article in the Ohio State Journal of Criminal Law. As explained in Conceptualizing Blakely, I believe an offense/offender distinction helps give conceptual content to the prior conviction exception, better links the Apprendi rule to the express text of the Constitution, and resonates with the distinctive institutional competencies of juries and judges.
As detailed in this post right after the Supreme Court's 2007 Sixth Amendment ruling in Cunningham v. California, Justice Kennedy's dissenting opinion in Cunningham praised an offense/offender distinction as providing a "principled rationale" for the application of the Apprendi rule: "The Court could distinguish between sentencing enhancements based on the nature of the offense, where the Apprendi principle would apply, and sentencing enhancements based on the nature of the offender, where it would not." But Justice Kennedy was writing in dissent and footnote 14 of Justice Ginsburg's majority opinion in Cunningham asserts that "Apprendi itself ... leaves no room for the bifurcated approach Justice Kennedy proposes."
Against this backdrop, I found especially interesting and notable this passage from the Court's opinion today in O'Brien (which just happens to be authored by Justice Kennedy):
Sentencing factors traditionally involve characteristics of the offender — such as recidivism, cooperation with law enforcement, or acceptance of responsibility. [Castillo, 530 U.S.] at 126. Characteristics of the offense itself are traditionally treated as elements, and the use of a machinegun under §924(c) lies “closest to the heart of the crime at issue.” Id., at 127.
As the cites reveal, the Supreme Court made a somewhat similar set of statements a decade ago in its Castillo ruling. But this O'Brien articulation of an offense/offender distinction for statutory interpretation purposes seems especially crisp and clean here. Perhaps in the future Justice Kennedy might be able to get a few of the new Justices to give this distinction constitutional significance in some future elaborations of the Apprendi/Blakely line of decisions.
Wednesday, May 05, 2010
Fourth Circuit uses Booker to support rejection of effort to extend ShepardThe Fourth Circuit has an interesting discussion of Booker and its progeny today in US v. Dean, No. 08-4439 (4th Cir. May 5, 2010) (available here), in the course of rejecting a defendant's complaint about judicial fact-finding in the course of applying a career offender enhancement. Here is how the opinion begins:
Antonio Bernard Dean challenges the imposition of a "career offender" sentence enhancement under the U.S. Sentencing Guidelines following his conviction on a drug possession charge. Dean was eligible for that enhancement only if the two predicate offenses upon which it was based were "separated by an intervening arrest." See U.S. Sentencing Guidelines Manual § 4A1.2(a)(2) (2007). Dean argues that in determining that an intervening arrest had occurred, the district court erred by relying on materials prohibited by the Supreme Court’s decision in Shepard v. United States, 544 U.S. 13 (2005).
In United States v. Booker, 543 U.S. 220 (2005), and its progeny, the Supreme Court intended two things. First, it sought to eliminate conflict between the Sixth Amendment jury trial right and the Sentencing Guidelines scheme, a task it accomplished by rendering the once-mandatory Guidelines advisory. Second, it endeavored to accord a greater, though not a complete, measure of latitude to district courts at sentencing, both in their ability to find facts and to determine the most appropriate sentence. Dean’s contention runs afoul of both these principles and would require us to backtrack significantly on the teachings of Booker and its progeny.
Tuesday, May 04, 2010
Lengthy split Seventh Circuit panel ruling on ACCA and juve predicatesA split Seventh Circuit panel has an interesting (and quite lengthy) discussion of proper application of the Armed Career Criminal Act and of use of juvenile prior to trigger ACCA's increased sentenced. The majority opinion in Welch v. US, No. 08-3108 (7th Cir. May 4, 2010) (available here), gets started this way:
In 2005, Devin Welch pleaded guilty to unlawful possession of a firearm by a felon. He then brought a motion under 28 U.S.C. § 2255 to vacate his sentence. The district court denied the § 2255 motion in pertinent part. We granted a certificate of appealability to address two of Mr. Welch’s contentions. First, he submits that his prior conviction for the Illinois crime of aggravated fleeing or attempting to elude a police officer cannot qualify as a “violent felony” within the meaning of the Armed Career Criminal Act (“ACCA”). Second, he submits that his prior juvenile adjudication cannot be used to enhance his sentence beyond the statutory maximum because it was not obtained by a jury trial. For the reasons set forth in this opinion, we affirm the judgment of the district court.
A forceful dissent authored by Judge Posner assails the majority's conclusions on both grounds, and it includes an especially interesting discussion of Apprendi prior conviction issues. Here is how that discussion concludes:
Of particular relevance to Apprendi, the literature finds that judges are more likely to convict in juvenile cases than juries are. They are exposed to inadmissible evidence; they hear the same stories from defendants over and over again, leading them to treat defendants’ testimony with skepticism; they become chummy with the police and apply a lower standard of scrutiny to the testimony of officers whom they have come to trust; and they make their decisions alone rather than as a group and so their decisions lack the benefits of group deliberation. It would be hasty to conclude that juvenile court judges are more prone to convict the innocent than juries are. But if it is true that juvenile defendants fare worse before judges than they would before juries — if there is reason to think that trial by jury would alter the outcomes in a nontrivial proportion of juvenile cases — one cannot fob off the Apprendi argument with the observation that a jury makes no difference.
Only the Supreme Court can decide authoritatively what its decisions mean. But the government’s inability to give a reasoned basis for that position is telling, and the better view, I believe, is that a juvenile court “conviction” is not usable for enhancing a federal sentence.
Tuesday, April 20, 2010
Noting SCOTUS disinterest in juve priors as basis for enhanced adult sentenceThe fact that the Supreme Court could soon announce new constitutional principles for sentencing juvenile offenders in in the pending Graham and Sullivan cases makes extra interesting the Justices' decision to deny cert in a case concerning juve priors and an Apprendi challenge from California. This piece from the San Francisco Chronicle, which is headlined "'Three strikes' can count juvenile convictions," provides the details:
The U.S. Supreme Court on Monday upheld California judges' authority to count adult felons' convictions in juvenile court in determining whether to sentence them to life in prison under the state's "three strikes" law.
The court denied a San Jose man's appeal of his 2005 sentence for possessing a gun as a convicted felon. Vince Nguyen's sentence was doubled, to 32 months, based on his assault conviction in a 1999 juvenile court proceeding, when he was 16. Under the three strikes law, he could have been sentenced to 25 years to life in prison if his record had included a second such conviction as a juvenile.
The 1994 three strikes law, the nation's toughest sentencing measure for repeat offenders, requires a sentence of 25 to life for anyone convicted of a felony at age 18 or older who has committed at least two serious or violent felonies in the past. With one such previous conviction, the normal sentence for the new crime is doubled.
Unlike most states with repeat-felon laws, California classifies convictions for serious or violent crimes in juvenile court, at age 16 or 17, as strikes.
Nguyen claimed that increasing a sentence based on a juvenile conviction violated a U.S. Supreme Court ruling in 2000 entitling defendants to a jury trial on any facts used to lengthen their sentences beyond the usual maximum term. The California Supreme Court ruled against Nguyen in July 2009, saying the use of his juvenile conviction to increase his sentence as an adult did not violate his right to a jury trial.
Wednesday, March 31, 2010
Second Circuit rules NY Persistent Felony Offender law now clearly violates BlakelyVia a lengthy ruling today in Besser v. Walsh, No. 05-4375 (2d Cir. Mar. 31, 2010) (available here), a panel of the Second Circuit has declared unconstitution New York state's Persistent Felony Offender sentencing law. Here is a key paragraph from the start of Judge Winter's opinion for the panel:
We hold that the Sixth Amendment right to a jury trial, applicable to the states as incorporated by the Fourteenth Amendment, prohibits the type of judicial fact-finding resulting in enhanced sentences under New York’s PFO statute. We also hold that this prohibition was not clearly established until Blakely v. Washington, 542 U.S. 296 (2004). Because Besser’s conviction became final before Blakely issued, the state court decisions upholding his conviction were neither contrary to nor an unreasonable application of clearly established federal law. We therefore affirm the denial of the writ as to Besser. However, because the relevant state court decisions upholding enhanced sentences for Phillips, Morris, Portalatin, and Washington were issued after Blakely, those decisions were not reasonable applications of clearly established law. Nevertheless, we remand these cases to the district court for a determination of whether the error was harmless.
It will be very interesting to see if New York considers appealing this ruling to the full Second Circuit or to the US Supreme Court. Any predictions, dear readers?
Wednesday, February 03, 2010
The low-hanging fruit and long sentencing options of § 922(g)The Fourth Circuit has an interesting sentencing decison today in US v. Wright, No. 08-4679 (4th Cir. Feb. 3, 2010) (available here). First, consider the panel's description of the defendant's crime:
Jeremy Wright sprayed twenty-two rounds from an AK-47 assault rifle into a crowded night club parking lot, killing a man sleeping in a car with a single bullet to the head. Wright fired his rifle until he ran out of ammunition even though there were some two or three hundred people at the club, many of whom were pouring outdoors as the result of a fight that Wright had just instigated with rival gang members. In addition to the man he killed, Wright also wounded a club patron in the course of his rampage.
Now, guess Wright's crime of conviction in federal court (hint: it is not murder, but it did lead to a sentence of life imprisonment). Astute readers will know the answer from the title of this post or from this account of the sentencing issues raised an rejected in Wright:
On appeal, Wright raises three challenges to his sentence. He first argues that the use of his juvenile adjudications as predicate crimes under the ACCA violates the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), because South Carolina family courts do not employ juries. Second, Wright claims that the burglaries he committed as a juvenile do not qualify as violent felonies under the ACCA because he did not "carry" firearms merely by stealing them. Finally, Wright asserts that the district court improperly referenced the sentencing guideline for first degree murder when it sentenced him. We consider each of these arguments in turn.
Tuesday, August 25, 2009
Ohio Supreme Court rules on the scope of Apprendi's "prior conviction" exception
In a unanimous ruling in Ohio v. Hunter, No. 2009-Ohio-4147 (Ohio Aug. 25, 2009) (available here), the Supreme Court of Ohio ruled today that the Sixth Amendment does not preclude a judge from basing a sentencing enhancement on relevant information about the offender’s prior convictions that is part of the judicial record. This official press release provides background on the Hunter ruling, and here are sections of the discussion on the reach of Apprendi and the Sixth Amendment (with some cited omitted):
Relying on the decisions in Apprendi, Blakely, Shepard, and Taylor, several of our sister states have also held that sentencing courts may look beyond the mere existence of a prior conviction without violating the Sixth Amendment. For example, in Ryle v. State (Ind.2005), 842 N.E.2d 320, the Supreme Court of Indiana affirmed an enhanced sentence based on a judicial finding from information about a prior offense contained in a presentence investigation report. The court stated that “[t]he presentence investigation report relies on ‘judicial record[s]’ that guarantee the conclusive significance that is the focus of Apprendi.” Id. at 325, quoting Shepard, 544 U.S. at 26...
Thus, pursuant to Shepard, 544 U.S. 13, we hold that when designating an offender as a “repeat violent offender” pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by considering relevant information about the offender’s prior conviction that is part of the judicial record.
In this case, in order to declare Hunter a repeat violent offender, the court had to determine whether he had a prior conviction and had served a prison term for a felony of the first or second degree that resulted in physical harm to the victim. These facts may be readily determined from the indictment and sentencing entry for his 1990 conviction for felonious assault with a specification of physical harm and his resulting sentence of eight to 15 years’ incarceration. The trial court did not violate Hunter’s constitutional rights by considering these documents, which are “judicial record evidence” created in connection with his prior conviction. Shepard, 544 U.S. at 20. Moreover, the findings required by former R.C. 2929.01(DD) pertain directly to the issue of recidivism, which has traditionally been within the purview of the sentencing court, not the jury, Almendarez-Torres, 523 U.S. at 244, and Hunter has not suggested that the trial court’s findings in this case are erroneous.
August 25, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
Thursday, July 02, 2009
California Supreme Court rejects Apprendi challenge to using juve convictions as strikes
Apprendi fans have a lot worth reading today. In addition to my new little discussion of Apprendi-land in the Columbia Law Review's sidebar (discussed here), today the California Supreme Court has lots of Apprendi talk in People v. Nguyen, No. S154847 (July 2, 2009) (available here). Here is how the majority opinion starts:
California‘s Three Strikes Law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d))1 increases the maximum sentence for an adult felony offense upon proof that the defendant has suffered one or more qualifying "prior felony convictions" — a term that specifically includes certain prior criminal adjudications sustained by the defendant, while a minor, under the juvenile court law. Does the United States Constitution allow such use of a prior juvenile adjudication even though there was no right to a jury trial in the juvenile proceeding? Like the majority of recent decisions to address the issue, we conclude the answer is yes.
Here is how Judge Kennard's solo dissent gets started:
In California, a minor accused of a crime in a juvenile court proceeding — unlike a person accused in an adult criminal proceeding — has no right to a jury trial. The lack of that right becomes an issue when, as here, a juvenile court adjudication is based on one of certain statutorily specified felonies and later the juvenile, by then an adult, commits another felony. At that point, California's "Three Strikes" law comes into play. Because of the prior juvenile court adjudication, the sentence for the new felony conviction is doubled, as happened here; with two such priors, the prison term is a minimum of 25 years to life.
Central here is the United States Supreme Court‘s decision in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), which holds that the federal Constitution requires a jury trial on "any fact" that increases the maximum penalty for a charged offense. Is that right violated when, as here, the additional punishment is imposed because of prior juvenile criminal conduct for which there was no right to a jury trial? The majority perceives no problem. I do.
July 2, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack
Tuesday, June 23, 2009
Intriguing Ninth Circuit ruling on scope of Apprendi's prior conviction exception
The Ninth Circuit handed down an interesting little habeas ruling today in Kessee v. Mendoza-Powers, No. 07-56153 (9th Cir. June 23, 2009) (available here). As this start to the short Kessee opinion highlights, one probably needs to be a hard-core Apprendi and/or habeas fan to really appreciate the panel's work here:
What is the scope of the “prior conviction” exception to the general rule that a sentencing judge may not make factual findings that increase the statutory maximum criminal penalty? The Supreme Court has not yet answered that question. Accordingly, the answer depends on what level of scrutiny we apply to the sentencing decision. When we review de novo, we make an independent determination of the scope of the prior conviction exception, using our normal interpretative methods. When our review is constrained by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), though, we cannot grant habeas relief unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). Thus, under AEDPA, even if this court has reached a particular conclusion about the scope of the prior conviction exception, our view may not be the only reasonable one; if the state court’s interpretation is also reasonable, we must deny habeas relief.
June 23, 2009 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
Tuesday, August 07, 2007
Missing stuff while on the road...
A day of speaking and traveling has kept me mostly off-line, and a quick check of How Appealing suggests it was a big day for big opinions in the circuits, and the action included a notable First Circuit ruling on "whether juvenile adjudications constitutionally may be used as predicate convictions to support an ACCA enhancement." I hope to catch up on all the action late tonight, but I'd be grateful to readers who help me find anything especially noteworthy I might miss.
August 7, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Tuesday, July 17, 2007
Fifth Circuit panel spars over state of "prior conviction" exception
Anyone still interested in the "prior conviction" exception in the tangled web of Apprendi doctrine should be sure to check out a Fifth Circuit panel's ruling today in US v. Pineda-Arrellano, No. 06-41156 (5th Cir. July 17, 2007) (available here).
Writing for the majority, Judge Edith Jones asserts that "a majority of the Supreme Court has reaffirmed [the prior conviction exception of] Almendarez-Torres in James v. United States, 127 S. Ct. 1586 (2007)," and that "few issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this." Judge Jones further asserts for the Fifth Circuit that questioning the validity of Almendarez-Torres "no longer serves as a legitimate basis for appeal" and she concludes with these sentiments:
In the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax. It would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.
Writing a lengthy separate concurrence, Judge James Dennis takes issue with the majority's attempt to drive a stake through defense efforts to raise prior conviction Apprendi claims. Here is how the dissent begins:
I concur only in the majority's holding that this court is bound by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Mr. Pineda's conviction and sentence are affirmed. I emphatically do not join the majority's various statements regarding the continued validity of Almendarez-Torres, including especially its assertion that "this issue no longer serves as a legitimate basis for appeal." The majority's language amounts only to a dictum that exceeds the authority of this court and conflicts with decisions of the Supreme Court.
July 17, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (17) | TrackBack
Saturday, May 19, 2007
New cert petition on prior conviction exception to Apprendi
As detailed in posts here and here and here, I have long thought it would be only a matter of time before the Supreme Court would have to take up a case addressing head-on the continued validity and precise scope of the Apprendi-Blakely "prior conviction exception." And, though the Court has long avoided a long-established split concerning this exception and juvenile adjudications, a new cert petition filed by SCOTUS gurus Jeff Fisher and Tom Goldstein would seem to present the Court with a great opportunity to return to these important issues.
The new cert petition comes in Sasouvong v. Washington and can be downloaded below. Here is the sole questions presented and the first paragraph of the statement:
QP: Whether a criminal defendant's right to a jury trial under the Sixth and Fourteenth Amendments is violated when a prior juvenile adjudication – not itself decided by a jury – is used by a judge to impose a longer sentence than otherwise would be permissible.
Statement: This case presents a pressing issue concerning the administration of criminal justice, over which the federal and state courts across the country are openly and deeply split. The question is whether a court may use a prior nonjury juvenile adjudication to impose a longer sentence than otherwise would be permissible. Acknowledging the deep divergence of authority on the issue, a divided Washington Supreme Court has held that a court may do so....
May 19, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (5) | TrackBack
Wednesday, April 18, 2007
A quick James recap and tea leaves
In order to give folks a chance to discuss SCOTUS decisions that have nothing to do with abortion, let me recap prior James coverage and look forward based on that ruling to other sentencing work ahead:
- Splintered SCOTUS upholds sentence enhancement in James
- A few quick reactions to James
- When Justice Scalia sounds like Justice Brennan
Looking ahead, I come to these few tentative conclusions based on James:
1. None of the Justices save Justice Thomas likely has any deep interest in reversing the "prior conviction" exception to the Apprendi-Blakely rule.
2. Neither Justice Breyer nor Justice Kennedy vote as if he is genuinely troubled by broad applications of harsh mandatory minimum sentences. They both are good at talking the talk, but neither walk the walk. Now, if you murdered someone and get sentenced to death by a jury, then Justices Breyer and Kennedy are on your side.
3. In light of the harsh outcome, the long gestation, and strange voting blocks in James, I now have even less idea what to expect in Claiborne and Rita (except perhaps that Justice Breyer will continue to show an (uninformed) affinity for the guidelines and the US Sentencing Commission).
April 18, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (26) | TrackBack
Splintered SCOTUS upholds sentence enhancement in James
Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the 5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James. Here is the basic early report from SCOTUSblog on James:
In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264). Justice Samuel A. Alito, Jr., wrote for the majority. The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.
Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases. I will, of course, post and comment on the opinion once it is available.
UPDATE: The James opinion can now be accessed here. It runs 44 pages total (including the syllabus). Here is the dissenting line-up: "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion." Why can't my printer go faster!!
April 18, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (10) | TrackBack
Wednesday, March 28, 2007
Habeas attack on NY persistent felony offender statute
A helpful reader noted to me a big recent habeas development from New York in the form of Portalatin v. Graham, No. 06 CV 5002 (EDNY Mar. 22, 2007) (available here). In Portalatin, EDNY District judge John Gleeson essentially disagrees with the New York's state court decision in Rivera that the state's discretionary persistent felony offender statute is constitutionally sound (background here and here). Here is the start of Portalatin (which I will discuss more fully when I get a chance to read it more closely):
Carlos Portalatin petitions for a writ of habeas corpus, challenging the sentence imposed in state court pursuant to New York's discretionary persistent felony offender statute, N.Y. Penal Law § 70.10. Because that sentence violated Portalatin's constitutional right to a jury trial, the petition is granted.
UPDATE: Laura Appleman at Concurring Opinions has more on Portalatin here.
March 28, 2007 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (7) | TrackBack
Thursday, December 28, 2006
Two notable prior conviction rulings from the land of Blakely
A helpful reader has altered me to two significant rulings today from the Washington State Supreme Court about the scope of the "prior conviction" exception to the Apprendi-Blakely rule. Here is her report:
1. Washington v. Jones, No. 76900-1 (Wash. Dec. 28, 2006) (available here) (7-2 decision): The Washington State Court of Appeals "reversed the trial courts, holding that under Blakely v. Washington and Apprendi v. New Jersey, the jury, rather than the sentencing judge, must find that the defendant was on community placement before the sentencing judge may add a point to the offender score. We [the Washington State Supreme Court] granted review and conclude that because community custody is directly related to and follows from the fact of a prior conviction and that the attendant factual determinations involve nothing more than a review of the nature of the defendant's criminal history and the defendant's offender characteristics, such a determination is properly made by the sentencing judge. Therefore, we reverse the Court of Appeals and uphold the sentences imposed on Jones and Thomas."
2. Washington v. Weber, No. 77395-5, (Wash. Dec. 28, 2006) (available here) (5-4 decision): "We hold that prior juvenile adjudications fall under the 'prior conviction' exception in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and are not facts that a jury must find under Blakely v. Washington, 542 U.S. 296 (2004)."
As the dissents in both cases highlight, neither of these two rulings are obvious applications of the "prior conviction" exception. And, of course, Justice Thomas believes that the "prior conviction" exception ought to be eliminated altogether. For these reasons, these two cases might make for interesting cert vehicles if the Supreme Court is prepared to return in this part of Apprendi-land.
This category archive has a lot more on the "prior conviction" exception and its validity and scope.
December 28, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
Monday, June 12, 2006
The "prior conviction" sparring, Harris and Roe v. Wade
As noted in this earlier post, in addition to the death penalty rulings (basics here, commentary here), this morning's SCOTUS work included a remarkable set of dueling opinions about whether the court should reconsider the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule. Justice Thomas delivered this brief passionate dissent from the denial of cert in three cases asking the court to reconsider Almendarez-Torres, while Justice Stevens issued this one paragraph statement respecting the denial of the petitions.
There is so much which might be said about the merits of this little skirmish between the two Justices, both of whom state flatly that they view Almendarez-Torres as wrongly decided. But rather than focus on what this means for the future of the "prior conviction" exception, I must highlight two other cases that seem to be lurking in the shadow of this public spat:
1. As Blakely followers know, the "mandatory minimum" exception from Harris v. US is perhaps even more important for sentencing jurisprudence than is the "prior conviction" exception. As my colleague Alan Michaels has noticed, Harris makes a conspicuous appearance in Justice Stevens' statement:
In addition to strongly suggesting that Almendarez will stand (and the absence of anyone voting with Thomas suggests it will do so), JPS expressly distinguishes the prejudice from the "wrongness" of Almendarez (unlikely) from that flowing from the wrongness of Harris. By saying that judicial findings of prior convictions "unlike the denial of a jury trial on other issues of fact that give rise to mandatory minimum sentences, see Harris v. United States, 536 U.S. 545 (2002), will seldom create any significant risk of prejudice to the accused"), JPS indicates strongly (though I guess not surprisingly) he is willing to undo Harris.
2. As everyone knows, the biggest stare decisis question always facing the court is the fate and future of Roe v. Wade. I have long thought that Justice Thomas' willingness to overturn A-T was an echo of his likely approach to Roe. And now I find it hard to read Justice Stevens' work in this area as not also reflective of the Roe elephant that is always in the stare decisis room.
A capital (and non-capital) day for SCOTUS work
Perhaps it is fitting that, on a day I start by moaning again about the death penalty getting too much attention, the Supreme Court hands down two major capital punishment rulings that I have been eagerly awaiting. According to this post at SCOTUSblog:
The Supreme Court ruled on Monday that a Tennessee death row inmate has made a sufficient showing on his claim of innocence based on new evidence so that his case may proceed in federal habeas court. The ruling came in the case of House v. Bell (04-8990).
In the only other ruling of the day in an argued case, the Court allowed death row inmates seeking to challenge the lethal injection method of execution to pursue the issue as a civil rights claim, a broader option than federal habeas. The ruling came in Hill v. McDonough (05-8794).
In addition, as reported here at SCOTUSblog, the Supreme Court continuing also grant cert in Alphonso v. US "to decide whether state convictions for attempted burglary qualify as a violent felony for purposes of mandatory sentences under the federal Armed Career Criminal Act."
I will have comments on all these developments once I get a chance to read these new opinions. In the meantime, readers are urged to use the comments to reflect on two wins for capital defendants.
UPDATE: I also now see from SCOTUSblog that there were also some Almendarez-Torres fireworks as well:
Once again, Justice Clarence Thomas voiced his view -- so far, not shared openly by any other member of the Court -- that the Court should reconsider its ruling in Almendarez-Torres v. U.S., a 1998 decision that provides the only exception to the jury role that the Court has mandated in the Apprendi line of cases. Thomas said "it is time for this Court to do its part" in addressing whether that decision continues to be valid.... Thomas spoke out anew in dissent as the Court refused to hear three cases raising the issue -- Rangel-Reyes v. U.S., Shuman v. U.S., and Banegas-Hernandez v. U.S.
Answering Thomas, Justice John Paul Stevens said he continued to believe that the 1998 ruling was wrong, but added "that is not a sufficient reason for revisiting the issue." The denial of a jury trial on that issue, Stevens said, "will seldom create any significant risk of prejudice to the accused." Besides, he said, "countless judges in countless cases have relied upon Almendarez-Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficeint basis for the denial" of review in the three new cases, he added.
Yikes, so much to talk about on a day I was hoping to get my grading finally done. Oh well...
Tuesday, May 30, 2006
Major California Supreme Court decision on the "prior conviction" exception
Thanks to this post at Criminal Appeal, I see that last week I missed a major ruling from the California Supreme Court about the scope of the "prior conviction" exception. Last Monday, the California Supreme Court in People v. McGee, No. S123474 (Cal. May 22, 2006) (available here) issued a long opinion that essentially holds that there is no jury trial right on the nature of a prior conviction. Here is how Jonathan Soglin astutely summarizes the McGee ruling:
In this case, the particular question was whether two Nevada robberies qualified as robberies under California law and, thus, were strikes under the Three Strikes Law. The Court of Appeal had read the SCOTUS Almendarez-Torres exception to the right to a jury trial for prior conviction allegations to apply narrowly only to the mere fact of the prior conviction. In a 5-2 decision, Chief Justice George disagreed, declining to read Almendarez-Torres so narrowly. He recognized that the SCOTUS decision last year in Shepard v. U.S. read the prior-conviction exception narrowly, but he found that not controlling because Shepard was decide on statutory grounds, invoking the doctrine of avoiding constitutional doubt.
Though I have argued in my Conceptualizing Blakely article that the "prior conviction" exception ought to be broadly interpreted, extant Supreme Court jurisprudence does not fully support a broad reading of the exception. Thus, I think the dissent by Justice Kennard in McGee gets in some good shots, starting with this opening sentiment:
Because in Apprendi, the high court itself has cast doubt on the continuing vitality of the "fact of a prior conviction" exception to the jury trial requirement, this court should construe it narrowly. Instead, the majority reads it broadly, applying it to this case even though the Apprendi court's justifications for the exception are inapplicable here. According to the majority, it is proper for a trial court to deny a defendant a jury trial, with a beyond-a-reasonable-doubt standard of proof, not only on the fact of a prior conviction but also on the truth or falsity of factual allegations pertaining to the conduct that gave rise to a prior conviction, even though those allegations were not elements of the prior offense. I disagree.
May 30, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Monday, February 06, 2006
A sentencing double-shot from the Seventh Circuit
Sentencing fans will want to check out a pair of rulings from Seventh Circuit today: US v. Browning, No. 05-1991 (7th Cir. Feb. 6, 2006) (available here) and US v. Gokey, No. 05-1110 (7th Cir. Feb. 6, 2006) (available here). Neither is ground-breaking, but Browning has some interesting coverage of Shepard and the prior conviction exception and Gokey deals with a potentially important Booker pipeline/harmless-error issue.
Judge Posner's opinion for the Seventh Circuit in Browning is classic Posner, and the closing paragraph merits quoting at length:
Almendarez-Torres is vulnerable to being overruled not because of Shepard but because of United States v. Booker, 125 S. Ct. 738 (2005). Booker holds that there is a right to a jury trial and to the reasonable-doubt standard in a sentencing proceeding (that is, the Sixth Amendment is applicable) if the judge's findings dictate an increase in the maximum penalty. Id. at 756. Findings made under the Armed Career Criminal Act do that. So if logic rules, those findings too are subject to the Sixth Amendment. But law is not always very logical, and a good thing it isn't. An immense practical difference between the fact of a prior conviction and other facts bearing on a sentence is that defendants normally are loath to have their prior crimes paraded before a jury. In states such as Wisconsin that entitle defendants to jury consideration of sentencing enhancements based on prior sentences, the entitlement is almost always waived. So overruling Almendarez-Torres would have little practical significance, though it would doubtless beget a torrent of postconviction proceedings, just as Booker has done. Maybe, then, Almendarez-Torres will survive. But that is neither here nor there; the continued authority of Almendarez-Torres is not for us to decide.
Monday, January 16, 2006
Why Kaua may be the circuit decision of the month (so far)
January is living up to my prediction as an amazing sentencing month, although I did not predict that we would get so many important and consequential circuit rulings to kick off the new year. Indeed, the 1st Circuit's decision in Pho, the 4th Circuit's decision in Clark, the 8th Circuit's decision in Mickelson, and the 11th Circuit's decision in Williams are arguably among the most important circuit decisions concerning Booker that we've seen in many months.
But there is one recent circuit decision that should not be overlooked in all the Booker action: the Ninth Circuit's habeas decision in Kaua (discussed here), which ruled (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here are just a few reasons why Kaua strikes me as especially important:
- The decision rejects an effort to expand the ambit of the "prior conviction" exception to the Apprendi-Blakely rule, and thus reinforces the Ninth Circuit's view that Blakely announced a bright line.
- The decision disagrees with the Second Circuit's ruling in Brown v. Greiner (basics here, commentary here) addressing a similar issue in New York sentencing law.
- Because the state lost, and because Kaua rejects a considered view of Hawaii's Supreme Court, the posture of this case suggests cert. might be sought (and might be granted?) to explore the status and scope of the "prior conviction" exception.
- The Ninth Circuit's willingness to enforce its bright line view of Apprendi and Blakely in a habeas setting strongly suggests that the Circuit will not look kindly upon the state of California's efforts to preserve its sentencing system in the wake of Blakely. Though I suspect the Supreme Court will be examining California's Blakely dodge before California habeas cases make their way to the Ninth Circuit, Kaua will loom especially large if the Supreme Court decides not to take a California Blakely case soon.
January 16, 2006 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the States, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0) | TrackBack
Wednesday, January 11, 2006
Ninth Circuit says aloha to Hawaii's sentencing system
In what may be the most significant and potentially far-reaching federal habeas decision about a state sentencing system since Blakely, the Ninth Circuit today in Kaua v. Frank, No. 05-15059 (9th Cir. Jan. 11, 2006) (available here), has concluded (despite a contrary opinion from the Hawaii Supreme Court) that an aspect of Hawaii's sentencing system violates the Apprendi-Blakely rule. Here is the opening of the opinion:
Appellants, the State of Hawaii and Clayton Frank, appeal the Hawaii district court's grant of Wayman Kaua's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. The Hawaii sentencing court found that an extended sentence was necessary to protect the public in Kaua's case. Because the effect of this finding was to increase Kaua's sentence above that authorized by the jury’s guilty verdict, we hold that Apprendi v. New Jersey required a jury to make the finding. In reaching the opposite conclusion, the Hawaii Supreme Court applied a rule — the "intrinsic/extrinsic" analysis — contrary to the rule that Apprendi announced. The district court properly granted the writ.
There are a lot of facets to this Ninth Circuit panel ruling, and it reinforces the Ninth Circuit's tendency to view the prior conviction exception narrowly. Since Hawaii likely won't be too happy about this ruling, I would expect an en banc and/or cert. petition to follow. (I wonder if I can convince my dean that I need to now spend the rest of January doing fieldwork on this case in Maui....)
Tuesday, January 10, 2006
Eleventh Circuit predicts the demise of Almendarez-Torres (though it lives on for now)
Last week, as detailed here, the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2006) (available here), provided an extended discussion of the "prior conviction" exception to the Apprendi-Blakely rule. Today, in US v. Greer, No. 05-11295 (11th Cir. Jan. 10, 2006) (available here), we get more of the same. The discussion of these issues in Greer are quite interesting. Here are some highlights, which include a notable prediction (and quotation):
The district court thought that even if Almendarez-Torres still permits a judge to determine "the existence of a prior conviction," the principles of Apprendi extended through Booker forbid a judge from determining "the factual nature of a prior conviction." 359 F. Supp. 2d at 1379–80. That distinction between factual existence and factual nature is not justified in view of our decisions describing the non-effect of Apprendi and Booker on the Almendarez-Torres rule. It is not justified by the language or reasoning of those three Supreme Court decisions or by the constitutional principles underlying them....
The district court gave a lot of thought to this issue, and the opinion it published is not without its persuasive points. Realistically viewed, however, the district court's conclusion is less an application of existing precedent than a prediction of what the Supreme Court will hold when it chooses to address this issue in the future. Taking the principles stated in Apprendi and Booker and projecting them forward, the district court envisioned the overruling of at least some of the Almendarez-Torres decision. That prediction probably is correct; the Supreme Court may well overrule Almendarez-Torres. See Shepard v. United States, 125 S. Ct. 1254, 1264 (2005) (Thomas, J., concurring) (counting noses to come up with a majority of justices ready to overrule the Almendarez-Torres decision); cf. Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1115 (11th Cir. 2001) ("You don't need a weatherman to know which way the wind blows.") (quoting Bob Dylan, Subterranean Homesick Blues, on Bringing it All Back Home (Columbia 1965)).
The problem with lower courts basing decisions on predictions that the Supreme Court will overturn one of its own decisions is that the Supreme Court has repeatedly told us not to do it.
Rulings like Greer provide support for my suggestion that a Senator ought to ask Judge Alito whether, in light of Justice Thomas' concurrence in Shepard, he understands why the Supreme Court has not yet addressed Almendarez-Torres' continuing viability and the status of the "prior conviction" exception to the Apprendi-Blakely rule. Of course, taking inspiration from a well-known legal authority, Judge Alito might answer in song:
It ain't no use to sit and wonder why, babe
It don't matter, anyhow
And it ain't no use to sit and wonder why, babe
If you don't know by now
When your mind crows at the break of law
Look at our docket and we may keep the flaw
You're the reason we keep blabbering on
Don't think twice, it's all right...
It ain't no use in callin' out Blakely, gal
Like you never did before
It ain't no use in callin' out Blakely, gal
They can't hear you any more
I'm a-thinkin' and a-wond'rin' all the way down the road
I once loved a case, by Scalia I'm told
I give juries my heart but judges wanted my soul
But don't think twice, it's all right
January 10, 2006 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
Wednesday, January 04, 2006
Extended 11th Circuit discussion of prior conviction exception
Today the Eleventh Circuit in US v. Gibson, No. 04-14776 (11th Cir. Jan. 4, 2005) (available here), issued a long opinion, per Judge Tjoflat, primarily discussing (1) the application of the "prior conviction" exception to the Apprendi-Blakely rule, and (2) departures from the career offender guidelines. Here is a portion of the opinion's opening paragraph:
The district court concluded that under Blakely v. Washington, 542 U.S. 296 (2004), it could not classify Gibson as a career offender because the Government did not prove to a jury the nature of Gibson's prior convictions (i.e., that those prior convictions were felonies involving controlled substances) or the fact that Gibson was at least 18 years old at the time he committed the offense in this case. We conclude that the Supreme Court's decision in Blakely, and its subsequent decision in United States v. Booker, 543 U.S. 220 (2005), did not prevent the district court from considering Gibson's prior convictions, determining his age at the time he committed the instant offense, and designating him a career offender.
A quick skim of the Gibson opinion suggests that there are no dramatic new declarations in its 42 pages. Nevertheless, the Gibson opinion provides a very clear and useful review of the state of the law in the 11th Circuit. Also, recalling the Ninth Circuit's recent emphasis in Kortgaard that the "prior conviction" exception is "narrow" and the Seventh Circuit's recent assertions that Booker rendered obsolete the concept of departures, the Gibson opinion reminded me how differently the different circuit have been reconstructing the post-Booker world.
January 4, 2006 in Almendarez-Torres and the prior conviction exception, Blakely in Appellate Courts, Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (2) | TrackBack
Thursday, December 15, 2005
Indiana Supreme Court gives broad interpretation to prior conviction exception
The Indiana Supreme Court this week finally resolved Ryle v. State, a major Apprendi's "prior conviction" exception case which addressed whether (1) juvenile adjudications and (2) being on probation can be subject to judicial factfinding to enhance sentences. (I have spotlighted Ryle in prior posts here and here and here because it seems like a good test case for these important post-Blakely issues that have divided lower courts.)
In Ryle v. State, No. 49S02-0505-CR-207 (Ind. Dec. 13, 2005) (available here), a unanimous court concluded that judges can find facts about juvenile convictions and probation status without running afoul of the Sixth Amendment's jury trial right. Here is the opening paragraph in Ryle:
When the trial court ordered an enhanced sentence for appellant Kenna D. Ryle's manslaughter conviction, it cited his four juvenile adjudications and the fact that he was on probation when he committed the crime. Our analysis of Apprendi v. New Jersey leads us to conclude that these factors are proper sentencing considerations for a trial judge and need not be submitted to a jury.
The Ryle decision is an interesting read, and it provides another example of a court eager to give Apprendi and Blakely a functional reading, rather than apply these decision as drawing a bright line about what findings must be made by a jury. (I explore whether Blakely draws a bright line in this post.)
More about the Ryle ruling can be found in this newspaper article about the decision. The Indiana Supreme Court this week also resolved a similar case on the same basic grounds: Williams v. State, No. 49S02-0512-CR-643 (Ind. Dec. 13, 2005) (available here).
The Indiana Supreme Court's broad interpretation and application of the prior conviction exception stands in sharp contrast to the work of a number of other lower courts which have, as detailed in posts here and here and here, given the exception a narrow reading. I continue to wonder how deep these splits will need to be before the Supreme Court finally takes up a case to address head-on the continued validity and precise scope of the "prior conviction exception."
Monday, November 21, 2005
Seventh Circuit upholds upward departure based on uncharged (and unproven?) crimes
The Seventh Circuit today in US v. Welch, No. 03-3638 (7th Cir. Nov. 21, 2005) (accessible here) demonstrates yet again that the principles of Blakely have been undermined by the Booker remedy. In Welch, the district court nearly doubled the defendant's sentence based on its "finding, by a preponderance of the evidence, that the defendant had committed four other bank robberies" that apparently were never formally charged. The Seventh Circuit in Welch walks through all the post-Booker rules to conclude that there is no problem with a judge's decision to greatly enhance a defendant's sentence based on that judge's conclusion, by the preponderance of the evidence, that the defendant committed other offenses that apparently were never the subject of indictment or subject to true adversarial testing.
Interestingly, the Seventh Circuit in Welch quotes from the district court's "conviction" of the defendant on four crimes that it seems were never indicted or subject to adversarial testing:
After reviewing all of the evidence, this Court finds that the Government has put forth sufficient "reliable" evidence to show by a preponderance of the evidence that Welch committed the three bank robberies at Tech Federal on February 7, March 25[,] and May 20, 1997, and the robbery of the Bank of Homewood on July 8, 1997. While no one piece of evidence clearly implicates Welch, the totality of the evidence meets the preponderance of the evidence standard. Of particular importance to this Court is the black jacket found at his residence, the yellow hard hat, the statement to Austin, and the bank surveillance photos. Moreover, even discrediting the identification by Judith Welch and the teller, this Court finds that their identification of Welch is sound. After closely observing Welch at the trial and the sentencing hearing and closely comparing him to the bank surveillance tapes, this Court firmly believes that Welch is the robber in those photographs.
I have to think that the Founders who had a role in ensuring that trial by jury was guaranteed in both Section 2 of Article III and in the Sixth Amendment are right now rolling over in their graves. (Of course, these Founders likely rolled over a couple times after the Supreme Court in Watts held that acquitted conduct could be the basis for a mandatory sentence enhancement. But if the spirits of these Founders had some new hope after Apprendi and Blakely came along, Booker and Welch surely having them spinning in their graves again.)
Friday, November 04, 2005
More state disparity on juvenile offenses and prior conviction exception
Divergent recent rulings from Oregon and from Ohio have revealed the considerable state court dickering over whether juvenile adjudications come within the "prior conviction" exception of the Apprendi-Blakely rule. And, thanks to this post at INCourts about an Indiana lower court decision in Pinkston v. State, No. 49A02-0412-CR-1003 (Ind. Ct. App. Oct. 31, 2005) (available here), I see that disparate approaches to this issue can emerge within one state as well as across states.
Notably, the Indiana Supreme Court should soon address the status of juvenile adjudications in Indiana through Ryle (discussed here and here). But the Pinkston court could not await the Indiana Supreme Court's guidance. And, notably, the Pinkston court, in contrast to the work done by the lower court in Ryle, holds that "juvenile adjudications are not prior convictions under Blakely/Apprendi."
Prior coverage of this issue and other issues surrounding the prior conviction exception can be found at this link.
November 4, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Thursday, September 29, 2005
Eighth Circuit discusses scope of prior conviction exception
In a case with somewhat silly facts, the Eighth Circuit today in US v. Carrillo-Beltran, No. 04-3177 (8th Cir. Sept. 29, 2005) (available here) explained that a "court must be allowed to determine not only the 'fact of a prior conviction' but also those facts so 'intimately related' to the prior conviction to fall within the Apprendi exception." Of course, this ruling raises questions as to what facts are "intimately related" to a prior conviction to allow for judicial factfinding (which, perhaps, is the converse of the questions raised after the Supreme Court in Shepard cautioned against judges finding facts "too far removed from the conclusive significance of a prior judicial record.")
Monday, September 26, 2005
Another flavor of the prior conviction exception
Thanks to a reader tip, I can note a Colorado appeals court's discussion of yet another aspect of the prior conviction exception. In Colorado v. Martinez, No. 04-CA-2136 (Colo. App. Sept. 22, 2005) (available here), the court rejects the defendant's suggested narrow reading of the exception (which, as noted here, is the Ninth Circuit's approach) to hold that misdemeanor convictions do come within the exception. The Martinez opinion effectively details that many (but not all) lower state courts have likewise held that misdemeanor convictions do come within the prior conviction exception.
September 26, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
Wednesday, September 21, 2005
Major 9th Circuit ruling on prior conviction exception
In a detailed opinion with lots of important analysis, the Ninth Circuit today spoke at length about the scope of the Almendarez-Torres "prior conviction exception" in US v. Kortgaard, No. 03-10421 (9th Cir. Sept. 21, 2005) (available here).
In short form, Kortgaard holds "that upward departures under § 4A1.3 of the United States Sentencing Guidelines involve factual findings beyond the fact of a prior conviction." In long form, Kortgaard has a lot to say about the reach of Blakely and about the distinction between factual and legal findings concerning prior convictions. Most fundamentally, the Ninth Circuit reiterates its view that the prior conviction exception should be given a narrow reading:
We are also guided by our decision in United States v. Tighe, wherein we stated that the prior conviction exception "should remain a 'narrow exception' to Apprendi." 266 F.3d 1187, 1194 (9th Cir. 2001) (quoting Apprendi, 530 U.S. at 490). As we noted in Tighe, the Apprendi Court derived the prior conviction exception from Almendarez-Torres; however, the Court also questioned the continuing validity of Almendarez-Torres regarding the consideration of recidivism in sentencing, construed it as "represent[ing] at best an exceptional departure from the historic practice that we have described," and therefore decided "to treat the case as a narrow exception to the general rule." Apprendi, 530 U.S. at 487, 489-90. We treated it accordingly in Tighe and declined "to extend Apprendi's 'prior conviction' exception to include prior nonjury juvenile adjudications on the basis of Almendarez-Torres' logic." Tighe, 266 F.3d at 1194.
We are faced here with another request to extend or broadly construe Apprendi's exception in order to include within it issues that have not been submitted to a jury. We once again decline to do so and continue to treat the exception as a narrow exception to the general rule.....
Apprendi stated the exception as covering "the fact of a prior conviction," not facts that are derived or inferred therefrom. 530 U.S. at 490 (emphasis added); see also id. at 488 ("any 'fact' of prior conviction"). While the Court repeated the "prior conviction" exception in both Blakely and Booker, in neither case did the Court have the occasion to redefine or expand its scope..... Even if the prior conviction exception legitimately includes facts that follow necessarily or as a matter of law from the fact of a prior conviction, we have already concluded that the findings required to support an upward departure under § 4A1.3 are not of that nature because they require the judgment of a factfinder.
This strong reaffirmation of Tighe, which is in tension with subsequent rulings of some other circuits, is quite significant. And, critically, Kortgaard is not just important for undertsanding how Blakely and Booker and prior conviction exception are to be applied in federal cases in the Ninth Circuit: the reiteration in Kortgaard of Blakely's reach and the narrowness of the prior conviction exception could have a profound impact on state cases coming to the Ninth Circuit on habeas appeals from Alaska and Arizona and California and Hawaii and Oregon and Washington and perhaps other states.
The importance of this ruling for federal sentencing is somewhat muted by the Booker remedy, but I am sure this decision will still garner the federal government's focused attention. I am less sure, however, whether the government might seek rehearing en banc or might seek cert., especially because the case involves a number of potentially intricate issues.
Tuesday, September 20, 2005
Will stare decisis save the A-T prior conviction exception?
As detailed in my SCOTUS head-count on Apprendi-Blakely issues, the departure of Justices Rehnquist and O'Connor from the Supreme Court means that currently there are now five Justices on record opposing the Almendarez-Torres "prior conviction exception" (Justices Stevens, Scalia, Thomas, Breyer and Ginsburg) and only two Justices supporting the Almendarez-Torres exception (Justices Kennedy and Breyer). Though I have previously pondered whether a Justice Roberts would be in the Scalia-Thomas mold on these issues, lately I have been thinking a lot about how a Chief Justice Roberts, with his reported respect for stare decisis, might lead the Court when it (inevitably) takes a case to reconsider the Almendarez-Torres "prior conviction exception."
Larry Solum over at Legal Theory has this post which culls two choice quotes on stare decisis from Roberts' comments at his confirmation hearings. (The quotes come from a long list in this interesting document from Senator Jon Kyl's office.) In one quote, Roberts suggests that key considerations before reversing a prior precedent include "settled expectations, ... the legitimacy of the Court, ... whether a particular precedent is workable or not, whether a precedent has been eroded by subsequent developments"; in the other quote, he emphasizes "you always have to take into account the settled expectations that have grown up around the prior precedent [because it] is a jolt to the legal system to overrule a precedent."
In my view, reversing the Almendarez-Torres "prior conviction exception" would be a significant jolt to the legal system (although we might debate whether expectations have even been truly settled in the wake of Apprendi where Justice Thomas disavowed his vote in Almendarez-Torres). Whenever the Supreme Court has occasion to look at the prior conviction exception again, it will be especially interesting to watch how all this stare decisis talk (which, of course, is now focused on Roe) comes into play.
September 20, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Tuesday, September 06, 2005
A big circuit day for criminal history
Perhaps unsurprisingly, the federal circuit courts have returned from a long weekend by handing down lots of new opinions. And, of course, sentencing and Booker issues are in the mix. Though the 8th Circuit continues its daily coverage of a broad range of interesting sentencing issues (as evidenced on this official opinion page), criminal history issues are front-and-center in a number of circuit rulings today. Lacking time to consume all the action, I will just note and link:
- From the Fourth Circuit, check out US v. Thompson, No. 04-4678 (4th Cir. Sept. 6, 2005) (available here) and US v. Amaya-Prtillo, No. 04-4672 (4th Cir. Sept. 6, 2005) (available here).
- From the Eighth Circuit, check out US v. Smith, No. 04-3747 (8th Cir. Sept. 6, 2005) (available here).
- From the Ninth Circuit, check out US v. Kelly, No. 04-30074 (9th Cir. Sept. 6, 2005) (available here).
Among this group, Thompson may be the most interesting read because of the lengthy dissent by Fourth Circuit Chief Judge Wilkins. Readers are highlight encouraged to note any important needles in today's criminal history haystack.
Tuesday, August 23, 2005
Still more on state approaches to juvenile adjudications
Responding to posts about recent rulings from Oregon and from Ohio concerning whether juvenile adjudications come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful North Carolina reader provided this helpful report on how these issues are playing out in the Tar Heel State:
In North Carolina, we have an aggravating factor in felony sentencing for defendants with any prior adjudication as a juvenile for an offense that, if committed by an adult, would be a Class A through Class E felony. Finding of an aggravating factor permits the court to impose a sentence from the aggravated range in the sentencing grid cell where the offender's class of offense and prior record level place him.
In our "Blakely fix" legislation from this session of our General Assembly, North Carolina left determination of that aggravating factor in the hands of the judge, assuming it would fit the prior conviction exception. Other statutory aggravating factors now must be found by a jury or admitted by the defendant before they can be weighed against any mitigating factors in determining whether or not to impose a non-presumptive sentence.
On August 2nd, the N.C. Court of Appeals (our intermediate appellate division) in State v. Yarell, No. COA03-1454 (N.C. App. Aug. 2, 2005) (available here), went in the same direction as Oregon's Supreme Court, and held that prior juvenile adjudications do not fit the prior conviction exception. The decision (relevant part in only the last four paragraphs) turns solely on the term "conviction" and its application in our juvenile statutes. N.C. Gen. Stat. 7B-2412 states that "[a]n adjudication that a juvenile is delinquent or commitment of a juvenile to the Department for placement in a youth development center shall neither be considered conviction of any criminal offense nor cause the juvenile to forfeit any citizenship rights."
Saturday, August 20, 2005
More state views on juvenile adjudications and the prior conviction exception
Responding to this post about the recent Harris ruling from Oregon, which concluded that juvenile adjudications do not come within the "prior conviction" exception to the Apprendi/Blakely rule, a helpful Ohio reader informed me of a recent intermediate court ruling from Ohio on this issue. The ruling in Ohio v. Deters, No. C-010645 (Ohio 1st App. Aug. 5, 2005)(available here), ultimately holds that juvenile adjudications do come within the "prior conviction" exception. Along the way, the court provides this understated account of the state of the law on this issue:
In the wake of Blakely, several other Ohio appellate districts have allowed juvenile adjudications to be considered as a factor when enhancing a sentence. And several other jurisdictions outside of Ohio have also allowed juvenile adjudications as a sentencing factor under Apprendi or Blakely. Still others have rejected similar arguments. This split will one day have to be reconciled.
Thursday, August 18, 2005
Oregon Supreme Court rules juvenile adjudications do not come within "prior conviction" exception
Today, in Oregon v. Harris, No. S51600 (Or. Aug. 18, 2005) (available here), the Oregon Supreme Court issued a thoughtful opinion addressing "the use of prior juvenile delinquency adjudications to increase sentences for adult felony convictions under the Oregon Felony Sentencing Guidelines (guidelines)." An opening paragraph provides highlights of the arguments and the holding:
[D]efendant first argues generally that, because juvenile adjudications in Oregon are accomplished without jury trials, any subsequent reliance upon those adjudications to increase a defendant's criminal sentence violates the jury trial guarantee of the Sixth Amendment to the United States Constitution. Alternatively, defendant argues that, in any event, the trial court unconstitutionally used the fact of his past juvenile record to impose an increased criminal sentence in his particular case. Defendant's first argument is not well-taken. As to his second argument, however, we hold that, under Apprendi v. New Jersey, 530 US 466 (2000), the manner in which the trial court used defendant's juvenile adjudication to increase his sentence amounted to an error that violated the Sixth Amendment. As a result, we vacate defendant's sentence and remand this case for resentencing.
This major ruling deepens the split in lower state and federal courts on whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule (see also this post from INCourts about Ryle, a pending Indiana case on point). Consequently, this Harris ruling reinforces my belief that the validity and scope of the "prior conviction" exception is the most pressing and important post-Blakely issue needing immediate Supreme Court attention.
Tuesday, July 19, 2005
Fourth Circuit provides spirited defense of the prior conviction exception
Today in US v. Cheek, No. 04-4445 (6th Cir. July 19, 2005) (available here), the Fourth Circuit provided a spirited defense of the Almendarez-Torres "prior conviction exception" to the Apprendi-Blakely rule. In Cheek, the Fourth Circuit, after thoroughly reviewing the full Blakely line of cases, asserts:
It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.
Then, perhaps recognizing that the vitality of Almendarez-Torres may still be subject to question, the Check court goes on to explain that "several sound reasons may explain why the Almendarez-Torres recidivism exception has not been overruled:"
First, recidivism involves the status of a defendant as a repeat offender based on past convictions and not the offense being tried before the court.... [Editor's Note: This is an echo of the offense/offender distinction developed in my Conceptualizing Blakely article.]...
Second, and related to the first point, a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment and need not be subjected to a jury for a second time....
Third, if prior convictions were generally made elements of criminal offenses, the introduction of a prior conviction at trial could unfairly prejudice the defendant....
And fourth, it has been the longstanding custom for over 200 years to treat recidivism as a sentencing factor, and not as an element of the instant offense.
Criminal history and Shepard's impact
In my coverage of the Supreme Court's opaque sentencing work in its Shepard ruling in March (basics summarized here, commentary here and here and here), I particularly stressed what the decision might portend for the Almendarez-Torres prior conviction exception. However, a ruling today from the Sixth Circuit serve as a reminder that Shepard's rules for the consideration of a defendant's criminal history are consequential no matter what happens to the Almendarez-Torres prior conviction exception.
In US v. Hargrove, No. 04-3338 (6th Cir. July 19, 2005) (available here), the Sixth Circuit applies Shepard and related precedents to conclude that it was improper for the district court to find a particular prior felony was violent within the meaning of the Armed Career Criminal Act (a finding which served to trigger a minimum sentence of fifteen years in prison after the defendant's jury conviction of being a felon in possession of a firearm ). In addition to the intricate sentencing discussion at the end of the opinion, Hargrove is also interesting reading because of its consideration (and rejection) of the defendant's claim that he was entitled to a jury instruction on the defense of necessity during his trial for being a felon in possession of a firearm.