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