« Silent switches | Main | Clemency denied for Beardslee »

January 18, 2005

The critical, and still confusing, "prior conviction" exception

I have written in many (pre-Booker) posts about the critical importance — and critical uncertainty — of the "prior conviction" exception to Apprendi/Blakely.  For background, here are just a few of my major prior posts on this subject:

Importantly, though the Booker merits majority did not speak directly to the issue, it did continue to articulate the "prior conviction" exception when stating (and reaffirming) the Apprendi/Blakely rule.  Moreover, as detailed here, a case still pending before the Supreme Court, Shepard v. US, could allow the Court to address the "prior conviction" exception directly.  But, after so many issues went unaddressed (or were poorly addressed) in Booker, I am not holding my breath that Shepard will shine a beacon of light to clarify the darkness that now surrounds the "prior conviction" exception.

Though the advisory guidelines remedy in Booker might suggest this issue is now less important, everyone should appreciate that (1) state courts continue to divide wildly on the application of the "prior conviction" exception when defendants make Blakely claims, and (2) it would be very difficult for Congress to build a new sentencing system without clarification of the viability and scope of this exception.  (Recall that Justice Thomas in Apprendi suggested that he regreted his vote in the 5-4 decision that created this exception.)

Moreover, as documented in part by the DC Circuit's decision dated today in US v. Miller, 2005 U.S. App. LEXIS 862 (DC Cir. Jan. 18, 2005), these criminal history issues can get remarkably intricate even in seemingly simple settings.  (Notably, though Miller was released and is dated Jan. 18, 2005, the DC Circuit's decision affirming the defendant's guideline sentence only discusses Booker as a "pending" case.  The Miller ruling, then, is not just a day late and a Booker short, it is a full week late and a Booker short.)

January 18, 2005 at 06:40 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference The critical, and still confusing, "prior conviction" exception:


I'm just a wife looking to see that my
husband, who is incarcerated, was not
sentenced unjustly. He was given the mid-
term sentence. I'm not an attorney so don't
really know where to go to pursue this. I
don't have very much time left to do this and
any information you could give me would be
greatly appreciated. If I can't find some-
thing that would free him, even a reduction
on his time left would be a true blessing.


Teresa Mainor

Posted by: Teresa Mainor | Feb 13, 2005 2:12:41 PM

I was arrested on two occasions but no conviction at the time of arrest I was 19 years old and all charges were reduced to an infraction but i would like to go to law school. I currently have my masters but would ideally like to obtain a JD. I am 23 years old and only 4 years has past since my last arrest. would i still be able to got law school and pass a background check in from of the CA bar associates. Please advice, should i just end this dream or do I have a chance to practice law legally?

Posted by: Diana smith | Jul 23, 2008 7:13:36 PM

hp f2019b battery

Posted by: | Oct 14, 2008 6:52:49 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB