Friday, July 01, 2005
Justice O'Connor retiring; what will her replacement think of Harris and Almendarez-Torres?
I am sure sentencing issues will not be the main focus of discussion as the media and blogsphere discusses the news of Justice O'Connor's announced retirement and her potential replacement. Nevertheless, as I detailed in this post, Justice O'Connor served as a key fifth vote in the 5-4 decisions that produced the Almendarez-Torres "prior conviction exception" and the Harris "mandatory minimum" exception to the Apprendi-Blakely rule. If (when?) President Bush were to nominate replacement Justices in the "Scalia-Thomas" mold, the future of Almendarez-Torres and Harris would seem to be even shakier.
Of course, the Supreme Court Nomination Blog, SCOTUSblog and How Appealing are the places to go to get the scoop and surely lots of links on the big news concerning Justice O'Connor's announced retirement. Already SCOTUSblog has this post noting that confirmation hearings are usually 6-8 weeks after an announced retirement.
Tuesday, June 21, 2005
A great prior conviction test case
I am very glad to see Michael Ausbrook, who does a great job covering state Blakely stories, back in action at INCourts. And, in addition to this strong post on the California Supreme Court decision in Black, Michael highlights in this recent post a big Blakely case to be argued in the Indiana Supreme Court on Tuesday, Ryle v. State, which concerns the scope of the prior conviction exception.
I have spotlighted Ryle before in posts here and here because it seems like an especially good test case for the scope of the "prior conviction" exception. Ryle raises two issues which have divided lower courts: whether (1) juvenile adjudications and (2) being on probation at the time a crime is committed fit within the prior conviction exception. Michael's post provides considerable background on the juvenile adjudications issue, and also provides links to the parties' supplemental briefs. In addition, thanks to Michael, I can provide this link as the place to find on-line a webcast of the Ryle oral argument taking place on Tuesday morning in the Indiana Supreme Court.
Thursday, June 09, 2005
Three observations on Rivera
After having a chance to read closely the majority opinion of the New York Court of Appeals in Rivera, which upholds the constitutionality of the state's persistent felony offender statutes (basics here), three big thoughts rush to mind:
1. The decision seems cert. proof: Because the Rivera court based its ruling on a particular (though debatable) interpretation of the state's statutes, I think it would be unlikely that the Supreme Court would have much interest in giving the decision a second look.
2. What about state constitutional law?: The New York State Constitution in Article I, sec. 2 says: "Trial by jury in all cases in which it has heretofore been guaranteed by constitutional provision shall remain inviolate forever." Perhaps the defendant in Rivera did not also bring a state constitutional law claim (or perhaps such a claim has been resolved in earlier decision). Nevertheless, as I suggested in this post a few month ago, I think state constitutional law claims can and should play a larger role in the post-Blakely universe.
3. The continuing importance of the "prior conviction" exception: A critical component of the Rivera decision is the continued vitality of the Almendarez-Torres "prior conviction" exception. If Justice Thomas gets his way and the exception gets undone by the Supreme Court, New York will certainly have to alter the operation of its persistent felony offender statutes. Rivera is thus a good reminder that many states without significant Blakely problems may still end up with a significant Sixth Amendment mess if (when?) the Almendarez-Torres "prior conviction" exception is overruled.
Thursday, May 19, 2005
The diktats of criminal history and Booker's potential virtue
The Seventh Circuit's decision today in US v. Rosas, No. 04-2929 (7th Cir. May 19, 2005) (available here) does not break any new Booker ground, but it does provide a stark reminder of the significance of the federal guidelines' criminal history diktats. It also highlights why the post-Booker world, if properly constructed and kept free from too much Congressional interference, could be a much better federal sentencing world than what came before.
The facts of Rosas are hardly unique: the case involved a defendant with a criminal past who pled guilty to various drug and firearm charges. The legal issue is whether the defendant's prior conviction for fleeing a police officer qualifies as a "crime of violence," which would in turn requiring sentencing as a career offender under USSG § 4B1.1. Rosas caught my eye because this seemingly small (and substantively irrelevant?) legal dispute over whether fleeing a police officer is a "crime of violence" had enormous impact on the defendant's fate: the defendant's guideline range was to be 77 to 96 months, but it jumped to 262 to 327 months if his fleeing prior was classified as a "crime of violence."
The Rosas court's legal analysis of this issue under pre-Booker law seems sound (circuit precedent apparently compels treating fleeing a police officer as a "crime of violence"). But, tellingly, the court's analysis never includes any consideration or judgment about the factual specifics of the defendant's priors or, more importantly, whether it makes sense for 15 years of a man's life to hinge on a legal debate over whether fleeing qualifies as a "crime of violence."
Thankfully, Booker provides a remedy that could allow these case to be treated in a much sounder way. No longer do criminal history diktats define an unalterable sentencing range; though a district judge must consider the diktats, she must also now consider the broad mandates of 3553(a) to explore whether a sentence for Rosas in the range of 262 to 327 months is "sufficient, but not greater than necessary" to achieve the purposes of punishment and the other goals set forth in 3553(a). Though a judge post-Booker might still opt to follow the guidelines' diktats, that decision will now necessarily flow from a broader exercise of judgment, and a form of judgement that after Booker must be attentive to many factors that seem, at least to me, a lot more significant than whether fleeing a police officer qualifies as a "crime of violence."
Tuesday, May 17, 2005
Another FSR issue heading to press
I am pleased to report that a new Federal Sentencing Reporter issue is headed to press. This FSR issue, Volume 17, Number 3, is principally concerned with criminal history matters and was in the works before Blakely and Booker came along (although those cases find mention in the final product.)
My co-editor Nora V. Demleitner was in charge of this issue, and her introductory essay is entitled "Constitutional Challenges, Risk-based Analysis, and Criminal History Databases: More Demands on the U.S. Sentencing Commission." That essay, along with the Table of Contents for the full issue, are available for download below.
Relatedly, details about FSR's three recent Blakely issues are here and here and here, and the journal can be ordered here and accessed electronically here. In the coming months, the Federal Sentencing Reporter will be providing lots more Booker and Blakely coverage, so stay tuned.
Wednesday, May 11, 2005
Might Indiana's Supreme Court be a wise leader on the prior conviction exception?
Michael Ausbrook at INCourt has this notable post which details that the Indiana Supreme Court has ordered supplemental briefing in Ryle v. State focused on two questions concerning the scope of the "prior conviction" exception to the Apprendi-Blakely rule.
Ryle seems like an especially good test case for the scope of the "prior conviction" exception for a few reasons: (1) as detailed by Michael and in this post last year, Ryle directly addresses two key issues and uncertainties surrounding the prior conviction exception; (2) because Indiana's legislature has now passed a Blakely fix which makes Indiana's guidelines advisory, the state Supreme Court can consider the legal issues without pragmatic worries that all future sentencings hang in the balance, and (3) the Indiana Supreme Court's work in its big Blakely case, Smylie (basics here, commentary here and here and here) gave me the impression that this court really understands these issues.
Michael reports that oral argument in Ryle is not until next month, and I am not sure about the briefing schedule. But I will be eager to see what the parties have to say concerning one of the biggest and most important doctrinal issues still lurking in the post-Blakely world.
Friday, May 06, 2005
Judge Easterbrook spotlights fact/law distinction in prior conviction exception
Today in US v Carpenter, No. 04-2270 (7th Cir. May 6, 2005) (available here), Judge Easterbrook, speaking for the Seventh Circuit, provides an astute account of why the "prior conviction" exception might extend to matters beyond the "bare fact of a prior conviction" (which is how the exception has been limited in Oregon):
Criminal history is all about prior convictions; its ascertainment therefore is an issue of law excluded by Booker's own formulation and governed by Almendarez-Torres v. United States, 523 U.S. 224 (1998). Neither judges nor juries pass on the wisdom of legal rules case by case, and Booker (like its predecessor Apprendi v. New Jersey, 530 U.S. 466 (2000)), is about who finds facts rather than what legal consequences those facts may have. See McReynolds v. United States, 397 F.3d 479, 480-81 (7th Cir. 2005). That is why we held in United States v. Rosas, No. 04-2929 (7th Cir. Mar. 24, 2005), slip op. 6-7, that Booker does not affect the process of deciding whether a prior offense is a crime of violence.
As the Court explained in Shepard v. United States, 125 S. Ct. 1254, 1262-63 (2005), a sentencing court is entitled to classify and take into account the nature of a defendant's prior convictions, provided that the judge does not engage in factfinding about what the accused did (as opposed to what crime he has been convicted of). Carpenter does not contend that the judge went behind the existence of his priors to engage in a factual rather than a legal analysis of his former criminal behavior. (Part III of Shepard, which we have cited here, was joined by only four Justices, but another three Justices concluded that recidivist enhancements never create problems under the sixth amendment, so Part III speaks for the Court as a practical matter.)
I view Judge Easterbrook's discussion as astute because, as I explained in the latter part of my Conceptualizing Blakely article, "the Blakely ruling's emphasis on 'fact' finding — and [because] questions of fact are traditionally considered the province of a jury, while questions of law are traditionally for judicial determination — one might [identify] a fact/law distinction at heart of the Blakely principle." As explained in that article, "historically there has been precious little development or even consideration of the distinction between questions of fact and questions of law at sentencing," but I think such a distinction can and should become much more significant and much more fully developed in the wake of Blakely.
Two Oregon cases spotlight key Blakely issues
This morning I noticed on-line two Oregon state intermediate appellate court cases which spotlight some of the big Blakely questions that will need to be resolved by the Supreme Court sooner rather than later.
In State v. McMillan, 2005 Ore. App. LEXIS 538 (Ore App. Ct. May 4, 2005), the defendant raised Blakely to contest the sentencing judge's fact-finding which set the amount of a restitution order. The McMillan court rejected this claim, asserting simply:
The statutory maximum is...the amount of pecuniary damages as determined by the court, and no more. Therefore, even assuming that Apprendi and Blakely apply to restitution, see State v. Gutierrez, 197 Or.App. 496, 505, 106 P3d 670 (2005) (Apprendi and Blakely "arguably do not apply" to restitution), the principles announced in those cases were not violated.
In State v. Giles, 2005 Ore. App. LEXIS 542 (Ore App. Ct. May 4, 2005), the defendant contested on Blakely grounds a sentence enhancement based on the trial court's finding of "persistent involvement in similar offenses." Here the defendant prevailed, because:
In State v. Perez, 196 Or.App. 364, 371-73, 102 P3d 705 (2004), rev den (Apr 28, 2005), we held that, under Apprendi and Blakely, any fact other than the "bare fact of a prior conviction" that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt.
May 6, 2005 in Almendarez-Torres and the prior conviction exception, Blakely in the States | Permalink | Comments (0) | TrackBack
Wednesday, May 04, 2005
The waiting is the hardest part...
Over at SCOTUSblog, Tom Goldstein has this fascinating post previewing the Supreme Court's next term; he reports that for the 2005 Term, based on cert. grants this year, the "October sitting (8 arguments) and November sitting (12 arguments) are both full." This would seem to mean that, unless expedited briefing is scheduled, the earliest that the Supreme Court could hear a Blakely or Booker case is December 2005, and thus we should not expect any clarifying Blakely or Booker decisions until probably at least March 2006.
I have railed in prior posts here and here about the Supreme Court's expenditure of much time and energy on death penalty cases when there are so many post-Blakely and post-Booker questions that are more pressing and of much greater national import. But rather than continue to curse the SCOTUS darkness, let me try to light a certiorari candle by developing an annotated list, roughly in order of importance, of the Blakely/Booker issues that I think most urgently merit the Supreme Court's attention:
1. The validity and scope of the "prior conviction" exception. I spotlighted this issue soon after Blakely (consider this post last August), and the High Court's work in Shepard has only muddied these issues more.
2. The retroactive application of Apprendi, Blakely and Booker. Though nearly all lower courts have ruled against retroactivity (with the exception of the Colorado decision which found Blakely retroactive to Apprendi), retroactivity issues will be litigated over and over and over again in the lower courts until the Supreme Court definitively rules.
3. Booker pipelines issues such as plain error. Unlike retroactivity issues, Booker pipelines issues are producing remarkable circuit splits. But, also unlike retroactivity issues, Booker pipeline issues will eventually fade away even without a definitive Supreme Court ruling. This is why I wonder, as I discussed here and here, if the High Court will consider these issues cert. worthy.
4. Blakely's applicability to restitution and other non-prison sentences. Taken to its logical extreme, Blakely's statement that "every defendant has the right to insist that the prosecutor prove to a jury all facts legally essential to the punishment" could impact a lot more than sentencing within guideline systems. Most lower courts are limiting Blakely's reach, but these are the same courts that sought (incorrectly) to limit Apprendi before Blakely came along.
I could go on, but I am already exhausted and I have not even mentioned the reconsideration of the Harris rule for mandatory minimums (which many believe cannot stand in the wake of Blakely). Also, whether on direct appeal or through habeas actions, at some point SCOTUS will likely need to consider whether and how Blakely applies to some unique state guidelines systems. And, not to be overlooked, if Congress were to pass a constitutionally questionable Booker fix (such as the proposed HR 1528), a whole new set of constitutional questions in need of urgent resolution could emerge.
May 4, 2005 in Almendarez-Torres and the prior conviction exception, Apprendi / Blakely Retroactivity , Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack
Monday, May 02, 2005
11th Circuit says juvenile offenses come within prior conviction exception
Just yesterday I had a chance in this post to spotlight a thoughtful state case which concluded, following the Ninth Circuit's decision in United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001), that a "juvenile adjudication does not constitute a prior conviction under the Apprendi exception." Coincidently, the Eleventh Circuit had occasion to speak to this issue for the very first time today in US v. Burge, No. 04-13468 (11th Cir. May 2, 2005) (available here). And fans of circuit court sentencing action will not be surprised to learn that the 11th Circuit in Burge was not convinced by the 9th Circuit's approach to juvenile offenses and the prior conviction exception.
Burge cover a lot of interesting sentencing ground, including Booker and Shepard issues. But its extended analysis of the place of juvenile convictions within the Apprendi story is the most noteworthy aspect of the decision. Here's a taste:
"[T]rial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." McKeiver, 403 U.S. at 545. Further, although the Court's Jones and Apprendi decisions discuss the right to a jury trial as a procedural safeguard, neither case addresses juvenile adjudications and neither case explicitly states that a juvenile adjudication can only count as a prior conviction under the ACCA if the juvenile was afforded the right to a jury trial. At a minimum, however, Apprendi's prior conviction exception is based on the procedural safeguards that attach to a prior conviction or juvenile adjudication.
Prior to Almendarez-Torres, we recognized that the fact of a prior conviction under section 924(e) "merely links the severity of the defendant's punishment for a violation of the predicate offense § 922(g) to the number of previous felony convictions" and need not be submitted for jury consideration because "the defendant has received the totality of constitutional protections due in the prior proceeding on the predicate offense." United States v. McGatha, 891 F.2d 1520, 1526 (11th Cir. 1990). We explained that "[i]t was unnecessary for the jury to consider the defendant's prior convictions, for these convictions were not an element of the offense for which he was indicted and to which he entered his plea of guilty." Id. at 1525. And we concluded that "[w]hile the Due Process Clause indeed requires proof beyond a reasonable doubt of every fact necessary to constitute the crime, in sentencing those already constitutionally convicted the courts have traditionally operated without constitutionally imposed burdens of proof." Id. at 1526-27. Although we did not consider the use of a prior juvenile adjudication in McGatha, its rationale is consistent with [other circuit decisions rejecting Tighe], and can be applied in this case. Accordingly, "[a] prior nonjury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes." Jones, 332 F.3d at 696. Here, we are persuaded that Burge received the totality of constitutional protections due in his prior juvenile proceeding.
Sunday, May 01, 2005
The tension between the prior conviction exception and juvenile offenses
Many months ago I did this extended post spotlighting the legal debate over whether juvenile adjudications fall within the "prior conviction" exception to the Apprendi/Blakely rule. As noted before, there is a split on this important issue that encompasses not just federal circuits, compare US v. Smalley, 294 F.3d 1030 (8th Cir. 2002), with US v. Tighe, 266 F.3d 1187 (9th Cir. 2001), but also major state court rulings. See State v. Brown, 2004 WL 1490192 (La. July 06, 2004).
Over the weekend I was sent a thoughtful opinion from Washington state on this issue, Washington v. Tagaloa, No. 04-1-03162-8 SEA (Wash. Sup. Ct. Apr. 15, 2005) (available here). Here is the opinion's concluding paragraphs:
This Court does not question that it could make the factual determination of the existence of a prior juvenile adjudication. However, what is called into question is the legal determination regarding that adjudication. Unlike the prior conviction at issue in Apprendi, the instant adjudication may have received fair notice and a reasonable doubt standard, but did not receive "jury trial guarantees." Absent this fundamental protection, the instant adjudication does not qualify under the Apprendi exception. The process adopted for juvenile adjudications may provide sufficient due process protection for the purpose for which it is employed, i.e., rehabilitation, but the procedure falls short of the full panoply of rights required for purposes of sentencing enhancement as an adult.
If we wish to continue with the notion that the juvenile system is indeed separate and apart from the adult system –- with different goals and different protections, indeed different terminology, then it is unjust and unfair to allow juvenile adjudications to be treated as convictions for purposes of sentencing enhancements without the full panoply of rights afforded to adult defendants.
For the foregoing reasons, this court rules that that Mr. Tagaloa's juvenile adjudication may not be counted as part of his adult offender score under the SRA because it violates the due process protections of the Sixth Amendment. A juvenile adjudication does not constitute a prior conviction under the Apprendi exception. The fact of a juvenile adjudication can not be used to increase the penalty for a crime beyond the prescribed statutory maximum because juveniles are not afforded trial by jury to make the determination which is later used to increase an offender score.
May 1, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (4) | TrackBack
Thursday, April 21, 2005
The enduring the importance of Almendarez-Torres
Thanks to fellow bloggers, I see some two interesting developments on the "prior convictions" front: (1) Michael Ausbrook over at INCourts has this insightful post which discusses an Indiana Supreme Court ruling on the application of the state's repeat sexual offender sentencing enhancement; and (2) Appellate Law & Practice reports here on the Fifth Circuit's mass rejection of appeals challenging sentencing enhancements based on prior convictions. Both items reinforce my sense that the Almendarez-Torres "prior conviction exception" is a terribly important aspect of the modern sentencing universe and that the Supreme Court ought to definitely resolve its status as soon as possible.
April 21, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (1) | TrackBack
Wednesday, April 20, 2005
Two for Tuesday from the 7th Circuit
Though the discussion of plain error coming from Eleventh Circuit judges is perhaps the most noteworthy of the Booker circuit developments Tuesday (details here), two opinions from the Seventh Circuit caught my eye and merit brief mention:
- In US v. Lewis, No. 03-4100 (7th Cir. Apr. 19, 2005) (available here), Judge Easterbrook expounds on Shepard and the use of criminal history under the guidelines, explaining along the way that "[w]hat matters is the fact of conviction, rather than the facts behind the conviction."
- In US v. Cunningham, No. 03-3006 (7th Cir. Apr. 19, 2005) (available here), Judge Coffey explains, in a decision that also has a brief discussion of reasonableness, why a Paladino remand is not required in a case in which the sentencing judge departed upward based on (uncharged) relevant conduct in a child pornography case.
April 20, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits, Offender Characteristics, Offense Characteristics, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (1) | TrackBack
Saturday, April 16, 2005
4th Circuit opines on Shepard and the prior conviction exception
On Friday in US v. Washington, No. 03-4867 (4th Cir. Apr. 15, 2005) (available here),the Fourth Circuit had an opportunity to discuss the Supreme Court's recent Shepard decision in the course of an appeal which raised issues concerning "the scope of the 'fact of a prior conviction' exception to the Sixth Amendment protections outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, including United States v. Booker, 125 S. Ct. 738 (2005)."
In a divided 2-1 opinion in Washington, the Fourth Circuit holds that because "the sentencing court relied on facts outside the indictment" of a prior offense which "involved more than the 'fact of a prior conviction' exempted by Apprendi from Sixth Amendment protection," it followed that "Washington's sentence was imposed in violation of his Sixth Amendment rights." The majority in Washington stressed that the sentencing judge found facts about a prior offense, and concluded that Shepard indicated that such fact-finding about a prior conviction was constitutionally problematic.
In a lengthy dissent, Judge Luttig contends "district court's enhancement of Washington's sentence plainly fits within this exception to the rule of Apprendi. Contrary to the conclusion reached by the majority, the only facts that the district court relied upon for its determination that Washington's prior conviction was a crime of violence were those facts recited in the indictment underlying that conviction."
Thursday, April 07, 2005
An 11th Circuit ruling on prior convictions and Shepard
In addition to all the recent discussion of reasonableness (detailed here), this week has also seen a lot of circuit discussion of criminal history issues. In addition to the work of the 5th Circuit in Gutierrez-Ramirez (discussed here) and the 10th Circuit in Garcia-Rodriguez (discussed here), today the 11th Circuit handed down US v. Orduno-Mireles, No. 04-12630 (11th Cir. Apr. 6, 2005) (available here), which concerned whether certain prior convictions qualified as crimes of violence for purposes of a guideline enhancement. The Eleventh Circuit affirms the defendant's sentence in Orduno-Mireles after discussing at some length a number of Shepard and Booker issues and the "prior conviction exception."
April 7, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits | Permalink | Comments (1) | TrackBack
Wednesday, April 06, 2005
5th Circuit on Shepard and prior convictions
In yet another case highlighting possible disputes over the nature and scope of a defendant's criminal history (such as this 10th Circuit decision from earlier this week), the Fifth Circuit in US v. Gutierrez-Ramirez, No. 04-41742 (5th Cir. Apr. 5, 2005) (available here) reversed a district court application of a guideline enhancement based on a prior conviction for a "drug trafficking offense." The Court held that "the district court erred in using a California abstract of judgment to determine whether the defendant's prior California conviction qualified as a 'drug trafficking offense.'" Along the way, the Fifth Circuit has a chance to discuss Shepard and Booker and a number of circuit precedents struggling with these sorts of questions.
Tuesday, April 05, 2005
Almendarez-Torres Episode Two? (aka The Revenge of Shepard)
As stressed in a series of posts last month, the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) was so intriguing in part because the four Justices who kept the Almendarez-Torres "prior conviction exception" just barely alive in Shepard were the four dissenters in Almendarez-Torres. But Justice Thomas, who back in 1998 provided the key fifth vote upholding judicial fact-finding of a prior conviction and thus created what is now the "prior conviction exception" to the Jones-Apprendi rule, asserted in Shepard that Almendarez-Torres "has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and ... in an appropriate case, this Court should consider Almendarez-Torres' continuing viability." (A full explanation of all this is in this post.)
As Lyle Denniston explains in this wonderfully clear report at SCOTUSblog, assistant federal public defender Peter Fleury is now arguing to the Supreme Court that the appropriate case for considering Almendarez-Torres' continuing viability is . . . . . . Almendarez-Torres! As Lyle explains in his post (which covers all the particulars of Supreme Court procedure), "Fleury has asked the Court to reopen the 1998 decision that is the source of that exception: Almendarez-Torres v. United States (decided March 24, 1998, under docket 96-6839)." In Lyle's words: "It may be a long shot, but Fleury deemed it worth a try. The Court may consider the petition later this month."
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2) | TrackBack
Notable 10th Circuit ruling on prior convictions
Just available on-line today is an interesting decision from the 10th Circuit in US v. Garcia-Rodriguez, No. 04-8047 (10th Cir. Apr. 4, 2005) (available here). The principal sentencing issue in Garcia-Rodriguez concerns the defendant's efforts to challenge the fact that he had two prior convictions, which served in part as the basis for a life sentence. The entire decision is an interesting read with Booker and Shepard elements, but the decision seems most notable for its discussion of the scope of the Almendarez-Torres "prior conviction exception" (basics here).
Here is perhaps the most intriguing paragraph in what is an important decision on various issues relating to the sentencing consideration of prior convictions:
Additionally, this circuit recently concluded that this [prior conviction] exception permits a district court to find facts underlying a prior conviction that are "intimately related" to the whether a prior conviction exists without violating the Sixth Amendment. United States v. Moore, No. 04-8078, __ F.3d __, 2005 WL 668813, at *5 (10th Cir. Mar. 23, 2005) (judge properly made the determination that prior convictions were “violent felonies” subjecting defendant to increased punishment under recidivist statute). [ED. NOTE: Moore is discussed in this post.] The question of whether the defendant is the same person as the one who committed the prior crimes is just such an "intimately related" inquiry. See also United States v. Burgin, 388 F.3d 177 (6th Cir. 2004), cert. denied, __ S. Ct. __, 2005 WL 437775 (2005) (subsidiary finding under recidivist statute that prior offenses were committed on "different occasions" need not have been submitted to a jury); United States v. Santiago, 268 F.3d 151, 156 (2d Cir. 2001) (same); United States v. Wilson, 244 F.3d 1208, 1216-17 (10th Cir. 2001) (fact of prior convictions underlying enhancements in 21 U.S.C. § 841(b)(1) need not be made by a jury). No error occurred in this case because this finding of fact need not have been submitted to the jury.
April 5, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Booker and Fanfan Commentary, Booker in the Circuits, Offender Characteristics | Permalink | Comments (0) | TrackBack
Thursday, March 31, 2005
Contrasting affirmances of immigration offense sentences
Though I am no longer trying to track and report all the Booker circuit rulings, two contrasting affirmances of sentences in immigration cases from the Eleventh and Eighth Circuits caught my eye tonight. The Eleventh Circuit in its published opinion in US v. Camacho-Ibarquen, No. 04-11155 (11th Cir. Mar. 30, 2005) (available here), carefully explores (and rejects) the defendant's arguments against application of 16-level guideline enhancement, and it thoughtfully discusses Booker and Shepard along the way. But, in contrast, the Eighth Circuit in its unpublished opinion in US v. Villanueva-Martinez, No. 04-2925 (8th Cir. Mar. 30, 2005) (available here), summarily rejects the defendant's arguments against the same enhancement, and it does not confront the way the Booker remedy might impact the issues on appeal.
March 31, 2005 in Almendarez-Torres and the prior conviction exception, Booker in the Circuits | Permalink | Comments (0) | TrackBack
Thursday, March 24, 2005
District judge reads Shepard to impact post-Booker sentencing
An astute reader pointed me to a noteworthy district court decision from last week, US v. Harper, No. 1:04-CR-90, 2005 WL 646366 (ED Tex Mar. 17, 2005), which just recently appeared on-line. Seizing upon a sentence in the Shepard majority opinion's statement that "any fact other than a prior conviction sufficient to raise the limit of the possible federal sentence must be found by a jury, in the absence on any waiver of rights by the defendant," District Judge Ron Clark in Harper reads Shepard as modifying how judges can conduct post-Booker sentencing. Here is the reasoning in Harper (which is intriguing, but I think a bit questionable):
Shepard deals specifically with an interpretation of the Armed Career Criminal Act. However, in light of Booker/Fanfan, that is a distinction without a difference. It seems clear that the Supreme Court has ruled that sentencing enhancements must be based upon jury findings, prior convictions, the court documents and statutory definitions pertinent to such convictions, and admissions by a defendant. Accordingly, a sentence enhancement should not be applied in this case based upon the court's choice of which of two possible inferences may be drawn, by a preponderance of the evidence, from facts admitted by Defendant.
The recent Supreme Court rulings require that more attention be paid to the drafting of plea agreements, and to the presentation of proffers of evidence by the Government, so that facts necessary for enhancements the Government believes should be applied, are clearly established. It is difficult to argue that this is particularly onerous since, as a practical matter, the Government drafts its own proffer of evidence, and in most cases the plea agreement. Based on the court's observation of the practice which has evolved since the decision in Booker/Fanfan, the Government is already including all facts pertinent to sentencing enhancements in plea agreements or in a written "factual basis" signed by the Defendant and defense counsel.
The one level enhancement requested by the Government in this case would have moved the fifty-seven to seventy-one month Guideline range to a range of sixty-three to seventy-eight months. The sentence imposed by the court was sixty months. The change may not seem important, in light of the actual sentence imposed. However, the issue of the proper standard of evidentiary review of sentencing facts, raised by the Government is vitally important. In spite of the Fifth Circuit's recent decision in Mares, this court must respectfully conclude that the even more recent Supreme Court decision in Shepard, requires that sentence enhancements under the guidelines require more than inferences drawn from a preponderance of the evidence.
Monday, March 21, 2005
A missing Shepard issue?
The Eighth Circuit today in an unpublished decision US v. Muro-Mendoza, No. 04-3098 (8th Cir. Mar. 21, 2005) (available here) affirmed a sentence in an illegal reentry case by relying heavily on the Almendarez-Torres "prior conviction" exception. The case caught my eye in part because the defendant in Muro-Mendoza seems to dispute the nature of his prior convictions and also because the Eighth Circuit does not cite or mention the Shepard decision, the Supreme Court's latest work in this arena.
Because I remain unsure what Shepard even means for the Almendarez-Torres "prior conviction" exception, I cannot quickly figure out if there was even a viable Shepard claim in Muro-Mendoza. But I think the fact that Shepard is not even mentioned by the Eighth Circuit in Muro-Mendoza is telling.
Lots more SCOTUS Booker GVRs
As noted here, the Supreme Court is back in action today, and part of its morning work was a bunch more Booker-inspired GVRs (that is, cert. Granted, judgment Vacated, case Remanded in light of Booker). I count on this order list more than 25 additional Booker GVRs, which combined with all the prior GVRs noted and linked here, takes the count well over 500. I wonder if the SCOTUSblog folks might know if this is some kind of GVR record.
Interestingly, the order list also has one GVR due to Shepard's new guidance on criminal history (basics summarized here, commentary here and here and here), and one GVR due to Dotson's new guidance on legal challenges to parole procedures (background here).
Friday, March 18, 2005
Another case for addressing prior conviction exception
As detailed in this post, one of my many questions in the wake of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here) concerns how long will it take for the Court to grant cert. on a case directly addressing the status of the Almendarez-Torres "prior conviction" exception to the Apprendi/Blakely rule. (Recall, as noted here, that Justice Thomas in his Shepard concurrence asserted that " in an appropriate case, this Court should consider Almendarez-Torres' continuing viability [because] [i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres.")
The Supreme Court will likely now be presented with steady stream of cert. petitions requesting it to address the Almendarez-Torres "prior conviction" exception head on. I was sent one such cert. petition recently and provide it for downloading below. Here is the opening paragraph:
This Court should grant certiorari to overrule Almendarez- Torres v. United States, 523 U.S. 224 (1998). That decision is fundamentally incompatible with the Sixth Amendment principles expressed in Apprendi v. New Jersey, 530 U.S. 466 (2000), and its progeny, and has been disapproved by a majority of this Court. Its validity was called into question by five members of this Court just two years after it was decided; it simply has not been formally overruled. Now that the limits of Apprendi have been tested and its fundamental rationale repeatedly reaffirmed, the time is ripe to revisit the nowanomalous decision in Almendarez-Torres. Such review is particularly timely, given the recent reconfirmation by a member of the Almendarez-Torres majority that that case was wrongly decided and should be reconsidered. See Shepard v. United States, __ S. Ct. __, 2005 WL 516494, at *9 (Mar. 7, 2005) (Thomas, J., concurring in part and concurring in the judgment).
March 18, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (2) | TrackBack
Sunday, March 13, 2005
Insights on Shepard and its impact in California
In my coverage of the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here and here), I have particularly stressed the impact of the Almendarez-Torres prior conviction exception — and its potential demise — on state sentencing systems. (For example, prior posts have included Shepard briefs from New Jersey and North Carolina). The folks at the First District Appellate Project have now filled out the Shepard story for California in a terrific memo, available here, entitled "Making Use of Shepard v. United States in California Cases."
Authored Jonathan D. Soglin, Staff Attorney at First District Appellate Project, the California Shepard memo provides a detailed summary of the Shepard opinions and then explains in detail the decision's potential impact on current and future California sentencing litigation. Here's an excerpt from the introduction:
Although Shepard ultimately was not decided on constitutional grounds, it is important for California cases because:
- Shepard confirms that there are enough votes on the Supreme Court to hold that there is a federal constitutional right to a jury trial on prior conviction allegations and, thus, to overrule the Almendarez-Torres v. U.S. (1998) 523 US 224 prior-conviction exception to Apprendi and Blakely;
- Shepard confirms that although Almendarez-Torres remains controlling authority, it should be read very narrowly to only apply to facts established by the record of conviction; and
- assuming that Almendarez-Torres remains good law, Shepard nevertheless restricts the documents that can be used to prove whether a prior convictions satisfies the requirements of the enhancement statute.
March 13, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Thursday, March 10, 2005
Criminal history disputes and Shepard issues
I believe the Supreme Court's opaque work in Shepard (basics summarized here, commentary here and here), and the possible demise of the Almendarez-Torres prior conviction exception, could prove so consequential not only because many states have sentence enhancers based on criminal history, but also because the facts surrounding a defendant's criminal are uncertain and subject to dispute more often than we might suppose.
The letter brief from the NJ Blakely litigation posted here provides some flavor of these issues, but another great example comes from a brief sent to me by North Carolina attorney Bruce Cunningham. This brief, which I have been authorized to post and is available for downloading below, spotlights in various ways a range of the disputable issues that surround criminal history which may now bw subject to Shepard challenges.
March 10, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Tuesday, March 08, 2005
What is the scope of the prior conviction exception post-Shepard?
In this post pondering the state of sentencing following the Supreme Court's work in Shepard (summary here), I wondered whether state supreme courts considering Blakely cases will start to get Shepard-focused supplemental briefs. This question was answered quickly, as today I received from attorney Steve Sanders — who has been involved in New Jersey's Blakely cases as an amicus for the Association of Criminal Defense Lawyers of New Jersey — a copy of a letter brief filled today in the Supreme Court of New Jersey highlighting the significance of Shepard in a pending case.
This New Jersey Shepard letter brief can be downloaded below, and it emphasizes the oblique statement from Justice Souter's opinion in Shepard concerning the scope of the Almendarez-Torres "prior conviction exception." Recall this passage from Shepard (previously discussed here):
While the disputed fact [in Shepard's case] can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.
I have been struggling with exactly what this means for lower courts now considering the scope of the Almendarez-Torres prior conviction exception. I think Shepard stands for the proposition that the exception is relatively narrow (i.e., the exception does not extend to facts "too far removed from the conclusive significance of a prior judicial record"). And yet, I also read this passage to imply that the Almendarez-Torres prior coviction exception may cover more than just the bare fact of a prior conviction (i.e., the exception perhaps does extend to facts which are very close to "the conclusive significance of a prior judicial record").
I believe a number of states have sentence enhancers that turn on whether an offender was on parole at the time of his offense or on whether the defendant previously served a prison term. Are such facts close enough to "the conclusive significance of a prior judicial record" to fall within the Almendarez-Torres prior conviction exception or are they "too far removed" and "too much like the findings subject to Jones and Apprendi"? I guess only future Supreme Court decisions will tell.
March 8, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Pondering some post-Shepard questions
I continue to ruminate over the Supreme Court's opaque work in Shepard and its tantalizing hints that the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule may be eliminated in some future case (the Shepard basics are summarized in this post). Here are just a few questions jumping to mind:
1. A number of state supreme courts considering Blakely cases received or asked for supplemental briefs in the wake of Booker. Will there now also be Shepard-focused supplemental briefs? (Consider this comment about the impact of Shepard on New Jersey's Blakely litigation.)
2. Might state and federal prosecutors, fearing the eventual demise of the Almendarez-Torres "prior conviction exception," start regularly including prior conviction facts in at least some indictments? Put another way, might some indictments now get "Shepard-ized"? (True law geeks like me should enjoy that pun.)
3. How long will it take for the Supreme Court to grant cert. (and then decided) what Justice Thomas calls "Almendarez-Torres' continuing viability"? Since Blakely, as I explained here, this issue has been of critical importance, but I now fear we may have to wait another year or longer before we get a resolution.
4. Will Justice Thomas' statement that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and his lament that "[i]nnumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres" have any traction in lower courts? Might a state Supreme Court consider using state constitutional law to eliminate the exception rather than await the work of a fickle US Supreme Court.
March 8, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Monday, March 07, 2005
Helpful accounts of Shepard
I have tried my best to summarize the impact of the Supreme Court's opaque work today in Shepard v. US in this post. Helping to add light are astute accounts of Shepard here from the AP and here from the Second Circuit Blog. (UPDATE: And here are a New York Times account, a Pittsburgh Post-Gazette account and a Wall Street Journal account of Shepard.)
In addition, I think the questons posed here by my colleague Alan Michaels help spotlight the craziness that is Shepard. (And, in a future post, I hope to set forth a set of post-Shepard questions rattling in my brain this evening.)
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (0) | TrackBack
Summarizing Shepard (and seeking state insights)
The Supreme Court's opaque work today in Shepard v. US (basics here) is hard to fully comprehend (consider this comment). Consequently, let me spotlight again the basic summary of the case here from the SCOTUSblog and summarize below my recent Shepard posts:
- The Shepard scramble discusses the Court's opinion and seeks to explain its significance concerning the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- Just when you thought it was safe discusses Justice Thomas' concurrence in Shepard which calls for the elimination of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi-Blakely rule.
- O'Connor's Apprendi laments discusses Justice O'Connor's dissent in in Shepard which complains about the prospect of extending the Apprendi rule "into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed."
I am making such a big deal over Shepard and the possible demise of the Almendarez-Torres "prior conviction exception" in part because many states — including many without guideline structures — have sentencing laws (such as three-strikes laws) that rely on judges finding prior conviction facts. In the wake of Booker and its "advisory dodge," the Almendarez-Torres "prior conviction exception" may seem like a very minor issue for the federal system. But because every state, I believe, has some sort of mandatory recidivist or three-strikes law, the overall impact of the demise of the Almendarez-Torres could be, dare I say, perhaps even greater than Blakely.
Of course, if the Harris mandatory minimum exception to the Jones-Apprendi-Blakely rule remains standing (a big IF), some judicial fact-finding at sentencing will still be permissible even if (when?) the Almendarez-Torres "prior conviction exception" is eliminated. But my own sense of state sentence laws is that the demise of the Almendarez-Torres could be hugely important. But I may lack any real perspective, and thus I would be grateful if those folks most familiar with state sentencing systems might use the comments to explain the possible impact if the Almendarez-Torres "prior conviction exception" was formally eliminated.
UPDATE: Jonathan Soglin at Criminal Appeal here contributes a number of important insights about Shepard and also details its likely immediate impact on People v. McGee, no. S123474, a California Supreme Court case concerning the applications of California's Three Strikes Law.
March 7, 2005 in Almendarez-Torres and the prior conviction exception, Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, State Sentencing Guidelines | Permalink | Comments (3) | TrackBack
O'Connor's Apprendi laments in her Shepard dissent
In trying to make sense of today's Shepard ruling (basics here) for our post-Blakely world, I have covered Justice Thomas's concurrence in this post and Justice Souter opinion for the Court in this post. Now let me complete the series with the work of Justice O'Connor in dissent. Here are her points (with citation mostly omitted) about the now lively debate over the future of the Almendarez-Torres "prior conviction exception" to the Jones-Apprendi rule:
I strongly suspect that the driving force behind today's decision is not Taylor itself, but rather "[d]evelopments in the law since Taylor." Ante, at 9. A majority of the Court defends its rule as necessary to avoid a result that might otherwise be unconstitutional under Apprendi v. New Jersey, 530 U. S. 466 (2000), and related cases. I have criticized that line of cases from the beginning, and I need not repeat my reasoning here. It is a battle I have lost.
But it is one thing for the majority to apply its Apprendi rule within that rule's own bounds, and quite another to extend the rule into new territory that Apprendi and succeeding cases had expressly and consistently disclaimed. Yet today's decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism.
Even in a post-Apprendi world, I cannot understand how today's case raises any reasonable constitutional concern. To the contrary, this case presents especially good reasons for respecting Congress' long "tradition of treating recidivism as a sentencing factor" determined by the judge, Almendarez-Torres v. United States, 523 U. S. 224, 243 (1998), rather than as a substantive offense element determined by the jury....
In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant's past crimes, like the ACCA predicates at issue in Shepard's case. The plurality's concern about constitutional doubt, ante, at 10–12, and JUSTICE THOMAS' concern about constitutional error, ante, at 2–3, are therefore misplaced.
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (3) | TrackBack
The Shepard scramble of the "prior conviction" exception
I have created a new Almendarez-Torres and the prior conviction exception category archive because I fear that the Supreme Court's Shepard ruling today (basics here, first commentary here) will open up a huge new can of litigation worms.
I have detailed in a number of pre-Booker posts the significance the "prior conviction exception," especially for states as they deal with the Blakely fall-out (examples here and here and here, collected here), and both the ruling and the dicta in Shepard make this confusing area of the law even more confusing. Though Shepard is already making my head hurt, I hope to explain the case's importance and why it makes the post-Blakely world, especially for the states, even messier.
First, a great many sentencing determinations depend on judicial findings of prior conviction facts (even in states without guideline systems), and a great many pre-Blakely sentences have been affirmed post-Blakely by relying on the prior conviction exception (see, e.g., the recent Ordaz decision by the Third Circuit). Thus, a great many past, present and future sentences may hinge on the continued validity of the Almendarez-Torres "prior conviction exception."
Second, in addition to the post-Blakely questions about the validity of the "prior conviction exception," there has also been great uncertainty concerning the scope of the exception. Indeed, a number of lower courts have split over (a) whether the exception only applies to the fact of a prior conviction or more broadly to surrounding facts (such as whether an offender was on parole), and (b) whether juvenile convictions (which themselves did not include a jury right) fall within the exception. (See generally this post on an Indiana case dealing with these issues or my recent Conceptualizing Blakely article which talks through some of these issues.)
Third, the Shepard ruling is opaque about both the validity and scope of the Almendarez-Torres "prior conviction exception." As detailed in this post, Justice Thomas, who in 1998 provided the key fifth vote for allowing judicial fact-finding of prior convictions in Almendarez-Torres, is trying to declare the "prior conviction exception" dead for all purposes. But four other Justices — the Almendarez-Torres dissenters, no less — seem to be keeping the "prior conviction exception" on life support for now, but its fate and application seem uncertain at best.
Here are the key passages from Justice Souter's opinion for the Court in Shepard, the first of which seems to concern the scope of the prior conviction exception, the second (from a footnote) concerns its future validity:
[T]he sentencing judge considering the ACCA enhancement would (on the Government's view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, and the dispute raises the concern underlying Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the state, and they guarantee a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence. While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute....
The dissent charges that our decision may portend the extension of Apprendi v. New Jersey, 530 U. S. 466 (2000), to proof of prior convictions, a move which (if it should occur) "surely will do no favors for future defendants in Shepard's shoes." Post, at 11. According to the dissent, the Government, bearing the burden of proving the defendant's prior burglaries to the jury, would then have the right to introduce evidence of those burglaries at trial, and so threaten severe prejudice to the defendant. It is up to the future to show whether the dissent is good prophesy, but the dissent's apprehensiveness can be resolved right now, for if the dissent turns out to be right that Apprendi will reach further, any defendant who feels that the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (5) | TrackBack
Just when you thought it was safe to go back into the (cert. pool) water
Please excuse the silly Jaws 2 reference, but I am suffering a bit of the shakes after now having had a chance to read the the Supreme Court's opinions in Shepard, all of which can now be accessed at this link. Because the facts and law surrounding the actual holding in Shepard are complicated and opaque, few may instantly realize its block-buster status. But Shepard is huge, because it (1) seems to limit the scope of the Almendarez-Torres "prior conviction exception" to Jones-Appendi, (2) hints that the Alemedarez-Torres "prior conviction exception" will be overruled soon, and yet (3) leaves Almendarez-Torres "prior conviction exception" alive, though now it is bloodied and perhaps gasping its final breath.
I will need future posts to explain why Justice Souter's opinion for the Court so terriby muddies the current status of the Almendarez-Torres "prior conviction exception." For now, let me spotlight that the four Justices speaking for the Court in Shepard, who are keeping the Almendarez-Torres "prior conviction exception" just barely alive, were the four dissenters in the Almendarez-Torres. The key fifth vote upholding judicial factfinding of a prior conviction and thus creating what is now the "prior conviction exception" to Jones-Appendi, back in 1998, was Justice Thomas. Here's what Justice Thomas says today in his Shepard concurrence about the Almendarez-Torres "prior conviction exception":
Almendarez-Torres ... has been eroded by this Court's subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided. See 523 U. S., at 248–249 (SCALIA, J., joined by STEVENS, SOUTER, and GINSBURG, JJ., dissenting); Apprendi, supra, at 520–521 (THOMAS, J., concurring). The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres' continuing viability. Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental "imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements." Harris v. United States, 536 U. S. 545, 581–582 (2002) (THOMAS, J., dissenting).
March 7, 2005 in Almendarez-Torres and the prior conviction exception | Permalink | Comments (10) | TrackBack