« Sentencing issues slowing the pace of federal justice in NYC | Main | One prisoner's reaction to Bush's commutation of Libby's prison term »

July 17, 2007

Fifth Circuit panel spars over state of "prior conviction" exception

Anyone still interested in the "prior conviction" exception in the tangled web of Apprendi doctrine should be sure to check out a Fifth Circuit panel's ruling today in US v. Pineda-Arrellano, No. 06-41156 (5th Cir. July 17, 2007) (available here). 

Writing for the majority, Judge Edith Jones asserts that "a majority of the Supreme Court has reaffirmed [the prior conviction exception of] Almendarez-Torres in James v. United States, 127 S. Ct. 1586 (2007)," and that "few issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this."  Judge Jones further asserts for the Fifth Circuit that questioning the validity of Almendarez-Torres "no longer serves as a legitimate basis for appeal" and she concludes with these sentiments:

In the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax. It would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.

Writing a lengthy separate concurrence, Judge James Dennis takes issue with the majority's attempt to drive a stake through defense efforts to raise prior conviction Apprendi claims.  Here is how the dissent begins:

I concur only in the majority's holding that this court is bound by the Supreme Court's decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Mr. Pineda's conviction and sentence are affirmed.  I emphatically do not join the majority's various statements regarding the continued validity of Almendarez-Torres, including especially its assertion that "this issue no longer serves as a legitimate basis for appeal."  The majority's language amounts only to a dictum that exceeds the authority of this court and conflicts with decisions of the Supreme Court.

July 17, 2007 at 05:03 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Fifth Circuit panel spars over state of "prior conviction" exception:


So very much so very wrong in this "judicial opinion."

First, it is nakedly advisory, indeed, butt-nakedly advisory. The defense counsel was not sanctioned and the court did not consider imposing such a sanction, so the opinion, unabashedly directed to "future cases", had almost nothing to do with any judicial action with respect to the parties. For an advocate of judicial restraint, Judge Jones certainly has an expansive view of Article III.
Second, it is a shocking effort to limit the scope of the supreme court's available docket, and a flagrant usurpation of its power to decide what cases are worthy of its attention. Defendants have always acknowledged that the circuit court is powerless to grant relief on A-T, so to say that they may not even raise it (or, rather, to say, in terms that would make the Politbureau proud, that "it would not be prudent" to raise the issue) serves no goal other than to constrict the range of issues available to the Supremes. In other words, Edith, they weren't really talking to you.
Third, it is directly contrary to half a dozen of its own opinions denying motions to withdraw in anders cases when the defense counsel failed to raise A-T, many joined by the Chief Judge herself. No doubt, Jones would be the first to dispose of thousands of direct appeals if A-T were ever overruled on the ground that the issue were not preserved.
Fourth, the court is nowhere empowered to reject a defendant's meritorious argument because it finds another argument to have been frivolous, nor to threaten such an action in order to discourage an argument it doesn't like. Yet this is the clear implication of the Judge Jones' unsolicited advice to defense counsel that the issue will harm "their credibility."
Fifth, Jones' suggestion that the defendant has nothing to gain from raising the issue save to disrupt the justice system betrays an exceptionally shallow understanding of the law, in spite of her magnanimous "patience" with it over the past nine years -- the Court has already held that 1326 is not susceptible to an interpretation that would regard the prior conviction as an element; this means, at least arguably, that it cannot be construed in such a fashion as to allow the government to prove the prior conviction in a jury trial. Moreover, there is probably a plausible double jeopardy argument that a defendant who pleads to a lesser included with the government's permission cannot thereafter be subjected to an increased sentence. Tell you what, Edith, you go ahead and limit yourself to deciding cases, and/or advisory screeds peppered with unnecessary exclamation points, and let defense counsel handle the representation of our clients. Really, they'll take it from here.

This is no species of judicial action, it is a threat and nothing more.

Posted by: Mr. Guy | Jul 17, 2007 5:46:16 PM

Judge Jones is absolutely correct as to those defendants who pleaded guilty and admitted the fact of prior conviction in doing so. These defendants have no basis raising an Apprendi challenge that, even if successful, cannot result in any remedy for them.

Posted by: Steve | Jul 17, 2007 8:41:04 PM

Not that it is any excuse for the way this opinion was issued, but such defendants: a) have an indictment clause challenge, which was, after all, the only question before the A-T clause b) can still argue that the statute simply does not authorize any mechanism to establish the fact of a prior conviction other than as a sentencing factor, and that to the extent that it purports to authorize the treatment of prior convictions as sentencing factors, is unconstitutional. Remember that A-T considered and rejected the possibility that Congress intended for 1326 to create separate offenses -- this means that there can be (or at least arguably can be) no "remedial opinion" to fix the issue a la Booker.

These are the kind of things that can escape your attention when you draft advisory opinions, without briefing, that intimate sanctions against defense counsel for attempting to preserve their client's rights to appeal to the Supreme Court.

And there are, in any case, precious few defendants who admit their prior convictions in the factual resume. Most of them refuse to, precisely to preserve this issue.

Posted by: Mr. Guy | Jul 17, 2007 9:06:17 PM

I guess the judicial hierarchy has been rearranged out here in the South. It goes something like:

Edith Jones - Rhesa Barksdale

Supreme Court of the United States

The Fifth Circuit

District Courts

The opinion is simply hilarious and I especially enjoy the exclamation point which is apparently being used by Judge Jones as case authority. Go type in the search terms "Almendarez-Torres & Anders" in the Fifth Circuit database in Westlaw and you will find no less than 8 cases where the attorney filed an Anders brief and motion to withdraw, but the Fifth Circuit denied the motion because the attorney didn't preserve the Almendarez-Torres issue. Judge Jones was on two of those panels.

Hmmm...since Judge Jones will have such a low opinion of you since the argument is raised maybe a motion for recusal should be used whenever the A-T issue and any other issue is raised.

The specter of having Judge Jones think ill of us is hardly a concern - she never thought much of the criminal defendant or those that represent them anyways.

Posted by: Einarr_SA | Jul 18, 2007 7:57:29 AM

Mr. Guy:

The argument that section 1326 cannot be construed to produce a constitutional rule if A-T is overruled has been rejected by EVERY court to consider the question.

In the context of an identically worded statuted, 21 USC s 841, courts held after Apprendi that the facts associated with the enhanced penalties in 841(b) now have to be alleged in the indictment and proved to the jury. This was so even though every court had held prior to Apprendi that Congress intended 841(b) to function as a penalty enhancer. Not one court seriously believed that it was improperly "rewriting" a statute to mean the opposite of what Congress intended. After all, section 841 said NOTHING about who found the sentence-enhancing facts and under what burden. It was up to the courts to decide those issues, subject to Sixth Amendment constraints. In fact, the Supreme Court in Cotton unanimously agreed that section 841(b)'s facts constituted elements after Apprendi, and that the failure to charge those facts in the indictment or to submit them to the jury was simply a trial error that could be reviewed for harmless or plain error under Rule 52.

It is no wonder why the defense bar persists in arguing that section 1326(b) is somehow facially unconstitutional and can never be applied if the Sixth Amendment applies to the fact of prior conviction: accepting that would mean that even defendants who pled guilty, waived their jury trial rights and admitted their prior convictions in the course of pleading guilty (like James) would get an automatic (and windfall) sentence reduction. Based on our experience with Apprendi's application to section 841(b), I am confidet that no court will accept that remedy argument even if the Supreme Court overturns A-T. As such, defendants who are in no position to benefit from a decision overruling A-T should stop wasting precious judicial resources by advancing frivolous remedy arguments.

Posted by: Steve | Jul 18, 2007 10:51:35 AM

Its an awful long way from "a similar argument was rejected in the context of a different statute" to "the remedial argument is not just wrong but frivolous in the context of this statute." Cotton certainly did not hold that drug quantity was an element of 841 -- rather it held that the failure to treat it as an element was constitutional error. This does not mean that it would not also be statutory error to treat 841 as an element of the offense. Of course the circuits have rejected this argument, but none that I am aware of have ever described it as sanctionable -- you know what else "every court that considered the issue" rejected? The argument that Apprendi applied to the Sentencing Guidelines. How'd that turn out? In fact, your citation to Cotton is interesting because it illustrates better than I could ever argue why circuit judges should not sanction defendants for making arguments to preserve them for further review.

I still don't see any defense on your part of the appropriateness of issuing naked advisory opinions, of arrogating the right to determine defense strategy without briefing, of casting aspersions against the defense bar in general by implying that they are pursuing an issue not to benefit their client but simply to disrupt the justice system, of issuing thinly veiled threats to blacklist attorneys in unrelated cases who raise A-T, of attempting to constrict the arguments available to the Supreme Court, or of Judge Jones' opinion as it relates to the innumerable defendants who don't admit the prior conviction.

I supposed that's to your credit.

Posted by: Mr. Guy | Jul 18, 2007 11:28:42 AM

Say a defendant takes Judge Jones' advice and doesn't challenge his sentence or indictment on an A-T basis. Then say the SCOTUS overrules A-T while the defendant's case was still pending on direct review. I assume that Jones and her partner in slime would excuse the obvious procedure default - not raising the A-T issue on direct appeal - because the defendant had merely been following her advice?

If not, the defense bar should tell her to shove it.

Posted by: Anon | Jul 18, 2007 11:33:46 AM

Listen to me clearly: I do think it was inappropriate of Judge Jones to tell defendants who have a realistic possiblity of lowering their sentences if A-T is overruled to stop preserving A-T claims. Defendants who have a "realistic probability" of obtaining a remedy are those who went to trial and lost, and whose indictments failed to allege, and jury instructions failed the jury to find b.a.rd., the fact of prior conviction.

But defendants who pled guilty, waived their jury trial rights, and admitted their prior convictions, have NO business attempting to preserve an A-T claim so that they can later argue "ignore my admission and give me an automatic 5-year reduction in my sentence because the sentence-enhancing part of the statute is now unconstitutional and can't be severed."

So while it's convenient for you to conflate the viability of the remedy argument I just described with the question whether A-T will survive, I will state again, and emphatically, that the remedy argument (i.e., "1326(b) is facially unconstitutional) is beyond frivolous.

If 1326 has an apprendi problem, it is solved by recasting the facts in (b) as elements of a greater-included offense. Don't tell me that a Supreme Court that did what it did in Booker (in terms of severance) won't take a much simpler (and far more defensible) path to severing (and thus saving) section 1326, thus avoiding having to invalidate numerous enhanced sentences.

Posted by: Steve | Jul 18, 2007 12:23:20 PM

How hilarious would it be if SCOTUS granted cert on this case to reconsider A-T? Now that would be poetic justice.

Posted by: | Jul 18, 2007 5:23:15 PM

Look, this is a strong-arm tactic. Judge Jones is trying to set up defense counsel for sanctinos if they raise an Almendarez-Torres issue, plain and simple. But counsel are obliged to do so in appropriate cases -- it's clearly not a frivolous issue on either doctrinal or head-count (5 justices potentially for) bases. Thank goodness there was at least a dissent. And its the judges who ought to be sanctioned for this stuff, not counsel.

Posted by: David in NY | Jul 18, 2007 5:29:22 PM

Ok, but you fail to define "appropriate cases."

Should a defendant who pleads guilty, waives his 6th Amendment rights to jury findings and admits his prior conviction be able to raise an A-T objection on appeal?

Posted by: Steve | Jul 18, 2007 8:28:45 PM

Steve, what is your obsession with that particular permutation of that issue?

And what's the big deal if they do raise it and shouldn't, or can't, get relief? Just deny the claim out of hand and we'll all move on with our lives.

Posted by: Anon | Jul 18, 2007 9:59:28 PM

Here's the big deal: defendants are pleading guilty (to avoid losing a 2-level reduction for acceptance of responsibility if they proceeded to trial), but are nevertheless raising frivolous A-T arguments in the trial court and on appeal, and then are complaining when the prosecutor refuses to move for an extra point reduction for acceptance.

Let me flesh it out: consider a defendant who was charged with aggravated illegal reentry under 1326(b) and wanted to plead guilty to his offense, but refused to admit the fact of prior conviction in pleading guilty precisely so he could argue on appeal that the statute, as currently drafted and applied, violated his jury trial rights. He wanted to argue later, in the event A-T was overruled, that 1326(b) was facially unconstitutional, automatically requiring an appellate court to reduce his sentence from the 5 years Congress said he deserved to the 2-year max. reserved for defendants who do not commit the aggravated (greater-included) version of the 1326 offense. In an effort to insulate the judgment from any later Apprendi attack, the prosecutor charges the prior conviction in the indictment and offeres the defendant a jury trial limited to the prior conviction issue, but the defendant turns it down.

Having refused to admit directly relevant conduct in order to preserve a Sixth Amendment claim his guilty plea divested him of standing to raise, the defendant at sentencing complains about the prosecution's refusal to move for a third-level reduction for acceptance of responsibility. He argues that the prposecution is penalizing him for trying to preserve a "meritorious" constitutional claim for further review. Of course, the defendant's definition of "meritorious" extends only to the question whether A-T may be overruled, and not to the question whether that overruling would have any effect on his sentence.

So I ask you: should a defendant be able to compell the prosecution to reward him with an extra point off for acceptance of responsibility when he (1) refused to admit his prior conviction (2) in order to generate a Sixth Amendment issue for appeal that cannot benefit him (3) despite purportedly pleading guilty?

Posted by: Steve | Jul 19, 2007 1:26:05 AM

"Should a defendant be able to compel the prosecution to reward him with an extra point off for acceptance of responsibility..."

The AUSA cannot be "compelled" to do anything with regard to the extra point of acceptance as it is within their discretion. To that end, the AUSA's power over the extra point of acceptance is so prone to abuse it is outrageous. Imagine if you will, being denied the extra point for acceptance as a result of filing a motion to suppress or having an initial detention hearing. Further imagine that you have a federal judge that refuses to do anything about it. It is happening where I am at.

Posted by: AFPD | Jul 19, 2007 5:16:08 PM

AFPD, you did not answer my question. If you try to preserve in the trial court and argue on appeal an Apprendi challenge to a prior conviction that you admitted in the course of pleading guilty, do you think the Government acts unfairly by refusing to reward that conduct -- esp. where a guilty plea is supposed to end litigation and conserve government and court resources?

Posted by: Steve | Jul 19, 2007 5:24:11 PM

Steve, you're whole argument seems like a super-defensive way of making AUSAs feel better about themselves. If they don't want to give the defendant in your hypo an extra point off, then don't. Defendants and defense attorneys will complain, but why would the AUSA care? Just don't expect defendants or their attorneys to thank you for it.

This whole thing goes back to the craptastic concept of claiming that a defendant has to plead guilty in order to accept responsibility for his or her crime.

Posted by: Anon | Jul 20, 2007 3:04:33 PM


The defendant doesn't have to plead guilty to get an acceptance reduction; he/she has to plead guilty without seeking to litigate in the trial court and on appeal Apprendi challenges that are antithetical to their guilty plea.

So, to turn around your statement, I say to defendants: don't plead guilty and raise a frivolous Apprendi challenge and then complain on appeal that the Government has refused to reward you for your litigiousness.

Posted by: Steve | Jul 20, 2007 8:31:50 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