Portolatin v. Graham, No. 07-1599-pr (2d Cir. October 18, 2010) (en banc)
Earlier this year, a Second Circuit panel held that New York’s persistent felony offender (PFO) statute violated the right to a jury trial under Apprendi. See The Persistents of Apprendi, posted April 9, 2010. In this en banc opinion, authored by Judge Wesley, the full court changed course and held that the PFO scheme does not, in fact, violate Apprendi. The members of the original panel, along with Judge Pooler, dissented.
The PFO scheme provides for dramatic sentencing enhancements for certain recidivists, and those that are deemed PFO’s can be subject to a sentence far greater than statutory maximum they would otherwise face. Application of the PFO statute is a two-step process. The first step requires the prosecution to prove that the defendant has two or more qualifying prior felonies. Once this is
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