« Fifth Circuit brings breaks equipoise on post-Booker Rule 32(h) debate | Main | Taking stock of death's recent decline »

March 5, 2007

SCOTUS developments, sentencing-free?

As noted here at SCOTUSblog, the Supreme Court issued two (non-criminal) opinions today and orders.  Here are a few sentencing-related thoughts about today's sentencing-free action:

The denial of cert in Bernie Ebbers' appeal is garnering press attention, though I would have been surprised if the Supreme Court had taken up his legal challenge to his conviction.  What's unclear is whether Ebbers' cert petition included a challenge to the reasonableness of his 25 year (below guideline, post-Booker) sentence.  If Ebbers' did raise a claim about the reasonableness of his sentence, I wonder if SCOTUS considered holding the petition until it decides the standards for reasonableness review in Claiborne and Rita.  As noted here, some circuits are holding sentencing appeals pending a SCOTUS ruling, and I would have thought that SCOTUS would be doing the same in any case where the post-Booker sentencing issues are debatable.

Meanwhile, the continued absence of an opinion in James v. US, which concerns criminal history predicate offenses under the ACCA, is making it hard for me to resist speculating that something big might be afoot.  When reading the November oral argument transcript in James (discussed here), I kept thinking that this case could provide an opportunity for the Court to overturn the Almendarez-Torres "prior conviction" exception to the Apprendi-Blakely rule.  Of course, this issue was not briefed and perhaps the delay in James is the result of the opinon being assigned to a "slow Justice."  Still, anytime we get within the ambit of Apprendi-Blakely rules, perhaps it is wise to expect the unexpected.

March 5, 2007 at 05:54 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference SCOTUS developments, sentencing-free?:


I think Apprendi rightly decided, but the "prior conviction" exception seems completely unobjectionable. The jury trial right with respect to the prior conviction was vindicated when the prior conviction was obtained.

Posted by: federalist | Mar 5, 2007 8:03:39 PM

I have to respectfully disagree with your characterization of the right to jury trial being "vindicated when the prior conviction was obtained." If the elements were exactly the same (which I know is a bit of semantics but I think in this case the majority in the Apprendi line are playing a bit of semantics in a correct way) then you would be correct that the right to jury trial was already complete. However, the elements in this are different. There are the elements of the first crime for the first trial but those are irrelevant in the second. The only elements involved in the second trial are that the defendant was convicted of a crime and that crime was a felony.
I think Justice Thomas summed it up best when he said that this distinction has no basis in anything other than convenience. The fact is that a clever defense attorney could easily confuse the jury about an old conviction (new ones would be tough in states that have mandatory DNA testing for anyone who pleads guilty to or is convicted of a felony).

Posted by: da_2_b | Mar 6, 2007 9:35:31 AM

I think it's hard to argue that the Constitution bars res judicata here.

Posted by: | Mar 6, 2007 6:16:33 PM

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