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July 19, 2005

Fourth Circuit provides spirited defense of the prior conviction exception

Today in US v. Cheek, No. 04-4445 (6th Cir. July 19, 2005) (available here), the Fourth Circuit provided a spirited defense of the Almendarez-Torres "prior conviction exception" to the Apprendi-Blakely rule.  In Cheek, the Fourth Circuit, after thoroughly reviewing the full Blakely line of cases, asserts:

It is thus clear that the Supreme Court continues to hold that the Sixth Amendment (as well as due process) does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.

Then, perhaps recognizing that the vitality of Almendarez-Torres may still be subject to question, the Check court goes on to explain that "several sound reasons may explain why the Almendarez-Torres recidivism exception has not been overruled:"

First, recidivism involves the status of a defendant as a repeat offender based on past convictions and not the offense being tried before the court.... [Editor's Note: This is an echo of the offense/offender distinction developed in my Conceptualizing Blakely article.]...

Second, and related to the first point, a prior conviction has already been determined in accordance with the safeguards of due process and the Sixth Amendment and need not be subjected to a jury for a second time....

Third, if prior convictions were generally made elements of criminal offenses, the introduction of a prior conviction at trial could unfairly prejudice the defendant....

And fourth, it has been the longstanding custom for over 200 years to treat recidivism as a sentencing factor, and not as an element of the instant offense.

July 19, 2005 at 03:29 PM | Permalink


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I'm not sure I'd call it a "thorough" review of the _Blakely_ and related cases when the court fails to mention Thomas's buyers remorse about _Almendarez-Torres_, as expressed in his opinions in _Apprendi_ and _Shepard_. Oh well, I never expected the Fourth step out from behind valid (if wounded) Supreme Court precedent and break new ground, anyway. Time for cert!

Posted by: JDB | Jul 19, 2005 4:13:45 PM

Fair point, JDB. I am sure the cert. petition will be a nice addition to the A-T cert. pile in SCOTUS-ville.

Posted by: Doug B. | Jul 19, 2005 4:18:26 PM

I think Shepard v. United States indicates that a majority of the Supremes are unwilling to admit they made a mistake. Instead, they seem to be finessing the issue by establishing a fairly stringent standard for proving prior convictions. Now, if only the circuits will enforce those standards, rather than allowing the government to "prove" prior conditions using documents like uncertified computer printouts from local courts at sentencing, the prior conviction exception will be on the dust heap for practical purposes.

Posted by: Shari Allison | Aug 9, 2005 11:41:01 AM

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