ARGUMENT

[COMMENT1] The enhancement of Mr. XXXX=s sentence for illegal re-entry under 8 U.S.C. ' 1326(b) based on the district court=s conclusion by a preponderance of the evidence that Mr. XXXX had a prior conviction for an aggravated felony violated Mr. XXXX=s Sixth Amendment right to a jury trial and his Fifth Amendment right to be subject to a maximum punishment based solely on facts charged in an indictment.

[COMMENT1]

Scope of Review

The applicability of rule of Apprendi v. New Jersey, 530 U.S. 466 (2000), to this case raises a purely legal issue, and since it was raised at the sentencing, it has been preserved and is subject to plenary review. See United States v. Williams, 235 F.3d 858, 861 (3d Cir. 2000), cert. denied, 534 U.S. 818 (2001) (Apprendi claim subject to plenary review).

Discussion

The statutory maximum sentence in this case was increased from two years under 8 U.S.C. ' 1326(a) to twenty years under ' 1326(b)(2), based on the district court=s determination, by a preponderance of the evidence, that Mr. XXXX had a prior conviction for an Aaggravated felony.@ This enhancement was error because the rule of Apprendi v New Jersey, 530 U.S. 466 (2000), requiring jury determination of facts subjecting a defendant to a greater maximum sentence, should apply to the fact of prior conviction. Id. at 499-523 (Thomas, J. concurring); Shepard v. United States, 125 S. Ct. 1254, 1263-64 (2005) (Thomas, J., concurring). Accordingly, Mr. XXXX=s prior convictions should have been charged in the indictment as elements of the offense that must be proved to a jury beyond a reasonable doubt. The failure to do so violated Mr. XXXX=s Fifth and Sixth Amendment rights.

Counsel recognizes that United States v. Almendarez-Torres, 523 U.S. 224 (1998), is to the contrary with regard to the Fifth Amendment claim, but raises this issue to preserve it for further review and for adjudication should the Supreme Court expressly overrule Almendarez-Torres. Cf. United States v. Ordaz, 398 F.3d 236, 240-41 (3d Cir. 2005) (noting Athat there is tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court=s decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries,@ but holding that Almendarez-Torres remains binding law).

In the alternative, Almendarez-Torres should be limited to its facts B the defendant there admitted in the course of pleading guilty to violating 8 U.S.C. ' 1326 that he had been deported pursuant to three earlier felony convictions. 523 U.S. at 227. For this reason, as the Court in Apprendi noted, Almendarez-Torres raised Ano question concerning the right to a jury trial or the standard of proof that would apply to a contested issue of fact.@ Apprendi, 530 U.S. at 488. Since the Sixth Amendment jury trial issue was not factually or legally presented in Alemendarez-Torres, that case must be seen as only a limited ruling on the Fifth Amendment indictment issue. Unlike Almendarez-Torres, here there was no admission to any prior convictions during the guilty plea (or at any other time), and thus the Sixth Amendment right to a jury trial regarding the fact of prior conviction is squarely at issue. Accordingly, applying the Sixth Amendment ruling of Apprendi to the fact of prior conviction in this case would not require that Almendarez-Torres first be overruled. Contra Ordaz, 398 F.3d at 241 (ruling that Almendarez-Torres precludes a Sixth Amendment challenge to the use of prior convictions to enhance a sentence).

The Supreme Court=s recent decision in Shepard, moreover, strongly supports limiting Almendarez-Torres in this way. In Shepard, the Court termed Aprescient@ the following question from its decision in Taylor v. United States, 495 U.S. 575 (1990): A>If the sentencing court were to conclude, from its own review of the record, that the defendant [who was convicted under a nongeneric burglary statute] actually committed a generic burglary, could the defendant challenge this conclusion as abridging his right to a jury trial?=@ Shepard, 125 S. Ct. at 1262 (quoting Taylor, 495 U.S. at 601). The Court noted that this question anticipated the rule of Apprendi. Id. Shepard thus strongly suggests that the Court is inclined to apply the rule of Apprendi to the fact of prior conviction. Justice Thomas, moreover, in his well-reasoned concurrence in Shepard, observed without contradiction that Aa majority of the Court now recognizes that Almendarez-Torres was wrongly decided.@ Id. at 1264 (Thomas, J., concurring). This Circuit, accordingly, while not free to disregard Almendarez-Torres, is free to view Almendarez-Torres as being limited to its facts and inapplicable here, where there was no admission to the prior convictions and the Sixth Amendment issue has been raised.

Accordingly, the application of the statutory sentence enhancement under 8 U.S.C. ' 1326(b)(2), which increased the statutory maximum sentence from two to twenty years, violated Mr. XXXX=s Fifth and Sixth Amendment rights. The sentence should be vacated and the case remanded for resentencing within the two-year maximum sentence permitted under 8 U.S.C. ' 1326(a).