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.