NOTE:  THE CITATION TO INFRA P. 4 N.2  MUST BE CHANGED TO THE PAGE AND FOOTNOTE THAT IT OCCUPIES IN THE FINAL BRIEF

 

                                                               III.

                        THE SENTENCING ENHANCEMENTS FOR PRIOR

                     CONVICTIONS IN SUBSECTIONS (b)(1) AND (b)(2) OF

                              8 U.S.C. ' 1326 ARE UNCONSTITUTIONAL

 

In Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Supreme Court considered the felony and aggravated felony enhancements in subsections (b)(1) and (b)(2) of 8 U.S.C. ' 1326.  There were two holdings in the case.  The first holding was an interpretation of the statute; the Court held that the proper interpretation of the statute -- and the meaning Congress intended -- was that the fact of the prior conviction is a Asentencing factor@ to be found by a judge at sentencing, not a jury at trial.  See Almendarez-Torres, 523 U.S. at 228-35.  The second holding was that such a statute is not unconstitutional; the Court held that it does not violate the Sixth Amendment to let a judge decide such Asentencing factors.@

See id. at 239-47. 

 

A.      THE SECOND, CONSTITUTIONAL HOLDING OF ALMENDAREZ-TORRES -- THAT IT DOES NOT VIOLATE THE SIXTH AMENDMENT TO LET A JUDGE DECIDE SENTENCING FACTORS THAT ARE PRIOR CONVICTIONS -- IS NO LONGER GOOD LAW.

 

The second holding, on the constitutional issue, has been severely undercut by the Supreme Court=s subsequent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and, most recently, Shepard v. United States, No. 03-9163, 2005 WL 516494 (U.S. March 7, 2005), and can no longer be viewed as good law.  First, the majority in Apprendi -- which established the general rule that facts that increase the penalties for crimes must be submitted to a jury and proven beyond a reasonable doubt, see id. at 490 -- questioned the validity of Almendarez-Torres.  It acknowledged that Ait is arguable that Almendarez-Torres was incorrectly decided, (footnote omitted) and that a logical application of our reasoning today should apply if the recidivist issue were contested,@ Apprendi 530 U.S. at 489.  And Justice Thomas spoke even more strongly in a concurring opinion.  He noted that the consequence of the Apprendi rule for Almendarez-Torres Ashould be plain enough,@Apprendi, 530 U.S. at 518 (Thomas, J., concurring), characterized the Almendarez-Torres decision as Aan error to which I succumbed,@ id. at 520 (Thomas, J., concurring), and explained:

If a fact is by law the basis for imposing or increasing punishment -- for establishing or increasing the prosecution=s entitlement -- it is an element. . . .  When one considers the question from this perspective, it is evident why the fact of a prior conviction is an element under a recidivism statute.  Indeed, cases addressing such statutes provide some of the best discussions of what constitutes an element of a crime.  One reason frequently offered for treating recidivism differently, a reason on which we relied in Almendarez-Torres, is a concern for prejudicing the jury by informing it of the prior conviction.  But this concern, of which earlier courts were well aware, does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction. 

Apprendi, 530 U.S. at 521 (Thomas, J., concurring) (citations omitted).

 

Had the discussion been left at this, this Court and other lower courts might be bound, and, indeed, the Ninth Circuit has so held.  See infra p. 4 n.2.  But there is now a second decision -- Shepard v. United States, No. 03-9168, 2005 WL 5136494 (U.S. March 7, 2005) -- that contains comparable suggestions from all of the justices.[1]  First, Justice Thomas continued to express his view strongly and directly, stating:

Almendarez-Torres, like Taylor [v. United States, 495 U.S. 575 (1990)], has been eroded by this Court=s subsequent Sixth Amendment jurisprudence, and a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.  The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres= continuing viability.  Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental Aimperative that the Court maintain absolutely fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.@

Shepard, at *9 (Thomas, J., concurring in part and concurring in judgment) (citations omitted).  Second, the dissenting justices joined in, opining that Atoday=s decision reads Apprendi to cast a shadow possibly implicating recidivism determinations, which until now had been safe from such formalism.@  Shepard, at *16 (O=Connor, J., dissenting).  Third, in response to all this, the plurality opinion did not disagree with Justice Thomas and the dissent but acknowledged A[t]he rule of reading statutes to avoid serious risks of unconstitutionality@ was applicable.  Shepard, at *8 (citing Jones v. United States, 526 U.S. 227, 239 (1999)).  The plurality then stated that A[i]t is up to the future to show whether the dissent is good prophesy.@ Shepard, at *8 n.5. 

 

In light of all this, the second holding in Almendarez-Torres no longer can be viewed as good law.  The use of the fact of a prior conviction to increase a sentence must be treated just like the use of any other fact to increase a sentence, i.e., it must be alleged in the indictment and proven to a jury beyond a reasonable doubt.  The future that the plurality referenced is now.[2] 

 

B.      THE DEMISE OF THE ALMENDAREZ-TORRES HOLDING REGARDING THE CONSTITUTIONALITY OF JUDICIAL FINDINGS OF PRIOR CONVICTION ENHANCEMENTS DOES NOT MEAN THAT THE HOLDING REGARDING INTERPRETATION OF SECTION 1326 CAN BE CHANGED BUT MEANS THAT THE STATUTE=S ENHANCEMENT PROVISIONS MUST BE INVALIDATED.

 

The demise of the Almendarez-Torres holding regarding the constitutionality of using judicial findings to increase a sentence does not mean that the first holding regarding interpretation of the statute can be changed.  The interpretation of the statute was a separate holding based on thorough consideration and application of multiple principles of statutory construction.  Those included language in the statute that had traditionally been used to define sentencing factors to be decided by judges rather than substantive crimes, see id. at 231, original language which made Congress=s intent even more clear, see id. at 232-33, the title of both the original statutory provision and a provision amending it, see id. at 233-34, and policy considerations suggesting Congress=s intent was to have the question decided by a judge, see id. at 234-35. 


Further, there is the doctrine of stare decisis, which is much  stronger and far less often set aside when the prior decision involves interpretation of a statute.  A[T]he claim to adhere to case law is generally powerful once a decision has settled statutory meaning,@ Shepard, at *7, because Aunlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what [the court] has done,@ Patterson v. McLean Credit Union, 491 U.S. 164, 172-73 (1989), quoted in Shepard, at *7.  Congress has not altered what the Court did in Almendarez-Torres, and that is one more reason the interpretation there should stand.

 

There is Athe doctrine of >constitutional doubt=@ which the Court also considered in Almendarez-Torres.  See id., 523 U.S. at 237-39.  But that rule does not allow a court to rewrite a statute which was written unconstitutionally.  See CFTC v. Schor, 478 U.S. 833, 841 (1986) (noting that court cannot Ajudicially rewrit[e]@ statutes);  Heckler v. Matthews, 465 U.S. 728, 741 (1984) (A[t]he canon favoring constructions of statutes to avoid constitutional questions does not . . . license a court to usurp the policy making and legislative functions of duly elected representatives@).  The rule is a rule of interpretation and it applies only when (1) Athe statute [is] genuinely susceptible to two constructions@ and (2) it is susceptible to those constructions Aafter, and not before, [the statute=s] complexities are unraveled.@  Almendarez-Torres, 523 U.S. at 238.  The Supreme Court declined to apply the rule in Almendarez-Torres not just because the Court did not have constitutional doubt but also because Athe interpretative circumstances point significantly in one direction.@  Id.

 

All of this means that there is no room for reinterpretation here.  The statute as written is unconstitutional, and it is up to Congress, not the courts, to rewrite it, if Congress chooses to do so.

 


[1]The issue actually before the Court in Shepard was whether police reports and/or statements in support of a complaint could be considered under the Acategorical approach@ which must be used in determining the nature of a prior conviction under the Armed Career Criminal Act, codified at 18 U.S.C. ' 924(e).  See Shepard, at *3.  The Supreme Court held that such documents could not be considered.  See id.

[2]Lower courts are not bound to follow a Supreme Court decision if subsequent decisions of the Court Ahave undercut the theory or reasoning underlying the prior case law.@  Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc).  The Ninth Circuit has held that the doubt expressed in Apprendi was not sufficient to bring this rule into play.  See United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000).  Now there is the additional doubt raised by Shepard, however, and the defense would submit that this is the straw that breaks the camel=s back.  The defense makes the argument to preserve the record in any event.