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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.

September 21, 2005 at 01:08 PM | Permalink


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