United States District Court

Southern District of Texas

       _______ Division

 

United States of America

 

Versus                                                       Cr. No. *****                                                                           

Client

 

  Defendant=s Objection to the Presentence Report

 

The defendant, NAME, objects to PSR && **-**, because they state that the maximum punishment in this case is 20 years [or 10 years] in prison and three years of supervised release under 8 U.S.C. ' 1326(b)[(1) or (2)], and to PSR && **-**, because they enhance the sentence beyond the two-year maximum prison sentence permitted under 8 U.S.C. ' 1326(a) and the one-year supervised release term permitted under 18 U.S.C. ' 3583(b)(3), which constitute the maximum punishment allowable in this case.  

I.

Although the Supreme Court has held in a 5 to 4 decision that a prior conviction is a Asentencing factor@ to be decided by a district court and not an Aelement@ of a  ' 1326(a) offense that must be charged in the indictment, submitted to a jury, or proved beyond a reasonable doubt, see Almendarez-Torres v. United States, 523 U.S. 224, 229-35 (1998), Justice Scalia=s dissenting opinion in Almendarez-Torres, 523 U.S. at 248 (Scalia, J., dissenting, joined by Stevens, Souter, & Ginsburg, JJ.), contended that Aany fact@ B including a prior conviction B that raises the statutory maximum sentence must be alleged in the indictment and found by a jury beyond a reasonable doubt.  Id. at 248-71.

A current majority of the Supreme Court not only has questioned whether Almendarez-Torres=s constitutional rule should be overruled in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), see Dretke v. Haley, 541 U.S. 386 (2004) (expressly reserving judgment on this Adifficult@ constitutional issue), but also appears to believe that Almendarez-Torres in fact should be overruled.  See Shepard v. United States, 125 S. Ct. 1254,  1263-64 (2005) (Thomas, J., concurring in part and concurring in the judgment) (stating that Aa majority of this Court [now] recognizes that Almendarez-Torres was wrongly decided@).

II.

If Almendarez-Torres is overruled, then an enhanced sentence beyond two years in prison and one year of supervised release would be  unconstitutional in this case or in any ' 1326 prosecution, regardless of whether the indictment alleged a prior conviction, the defendant admitted to it at his guilty plea, or a jury found its existence beyond a reasonable doubt.  Because the Supreme Court previously  concluded in Almendarez-Torres, 523 U.S. at 229-35, that Congress intended ' 1326(b)=s criminal history enhancement provision to be a Asentencing factor@ rather than an Aelement@ of the crime of illegal reentry, a court would have no authority to effectively rewrite the statute to treat ' 1326(b) as an Aelement@ B either by requiring an indictment to include an illegal reentry defendant=s prior conviction or by requiring a jury to find the existence of the prior conviction beyond a reasonable doubt.  See United States v. Jackson, 390 U.S. 570, 579-80 (1968) (where Congress did not intend for such procedures in enacting a penal statute, a court may not effectively rewrite the statute so as to remedy a constitutional defect in the statute).  Put another way, if Almendarez-Torres=s constitutional rule is incorrect, then ' 1326(b) is facially unconstitutional.[1]

III.

Mr. NAME recognizes that the foregoing objection is foreclosed by Supreme Court and Fifth Circuit precedent and, thus, that this Court must overrule it at this juncture.  He makes the objection here solely to preserve the issue for appeal.  See United States v. Rivera, 265 F.3d 310, 311-12 (5th Cir. 2001).

For the foregoing reasons, the defendant, Mr. NAME, respectfully requests that this Court hold that 8 U.S.C. ' 1326(b) is facially unconstitutional and that the maximum sentence allowable in this case is two years in prison and one year of supervised release.

 

Respectfully submitted,

 

MARJORIE A. MEYERS

Federal Public Defender

Southern District of Texas

Texas State Bar No. 14003750

Southern District of Texas No. 3233

 

By:                                                                                                                            YOUR NAME

Assistant Federal Public Defender

[Bar Numbers and Address]

 

 

 

 

CERTIFICATE OF CONFERENCE

I certify that on this __ day of ________, 2005, I conferred with Assistant United States ***** concerning this motion, that s/he informed me that the government is opposed to this motion, and that an agreement cannot be reached on the disposition of this motion.

 

                                                                    

NAME

 

 

 

CERTIFICATE OF SERVICE

I certify that on this __ day of ________, 2005, a copy of the foregoing was hand-delivered to Assistant United States Attorney NAME [[[OR ecf certificate]]].

 

                                                                    

NAME


[1]  Cf. United States v. Buckland, 289 F.3d 558, 584 (9th Cir. 2002) (en banc) (Tashima, J., dissenting, joined by Reinhardt, JJ.) (contending that, because Congress intended 21 U.S.C. ' 841(b) to be a sentencing factor rather than an element of the offense, it was facially unconstitutional; further contending that the statute=s facial unconstitutionality could not be remedied by treating drug type and quantity as Aelements@ and charging such matters in the indictment and submitting them to jurors).