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February 6, 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.

February 6, 2006 at 01:11 PM | Permalink


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I agree with the point that the whole hew and cry about Almandarez-Torres is nothing more than formalism. In any case, even one where prior convictions would only affect the guideline range within the statutory range, as opposed to the Armed Career Criminal case Judge Posner discussed, I would be happy to prove up a defendant's priors to the jury - its the defendant's that wouldn't want it. They just want something to write appeals about.

If A-T were ever reversed, the next argument from the defense bar would be that these new, supposed "elements" of each crime could not be presented in the "guilt phase" and we would now have to be presented in a bifurcated trial.

I put an explicit waiver of the right to have criminal history determined by a jury in every plea agreement and no one has ever even brought it up.

Posted by: Tom | Feb 8, 2006 5:08:26 PM

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