United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant’s criminal history do not fall within the Almendarez-Torres exception to the Apprendi–Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. The amended opinion now explicitly states that certain facts relating to criminal history are indeed too far removed from “the conclusive significance of a prior judicial record to fall within that exception.” Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!
As this Blog previously noted:
“Weisser also appealed various aspects of the sentence imposed, including the district court’s three-Category horizontal departure from Category III to Category VI. In the course of evaluating the propriety of this departure, the Court offhandedly (and unnecessarily, given the Booker remedial ruling) states: “The district court’s horizontal departure violated the Sixth Amendment because it was based on facts not found by the jury.” Op. at 28 (emphasis added). This startling pronouncement — after all, aren’t facts underlying criminal history departures covered by the Almendarez-Torres exception to the Apprendi-Blakely rule? — turns out to be somewhat less momentous than first appears. This is because the the factual bases for the horizontal departure in this case involved not the “fact” of a prior conviction or even the “nature” of a prior conviction, but three other kinds of facts concerning the defendant’s criminal history. As a foonote explains, “the district court relied on (1) Weisser’s repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his ‘prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy'” in departing to Category VI. Op. at 28, fn.10.
The 2nd and 3rd bases for the departure seem clearly outside the Almendarez-Torres exception. But the 1st basis seems quite close to the kind of facts that courts have routinely held to fall comfortably within that exception. To start, why should a defendant’s “repeated parole violations” — which of course are easily proved by court records — be treated any differently than a defendant’s “repeated convictions”? If the former cannot be relied upon to increase a statutory maximum unless admitted by the defendant or found by a jury (as this opinion states), neither should the latter. Even read more narrowly, moreover, the 1st basis is quite similar to the basis triggering the two criminal history points required under Section 4A1.1(d) of the Guidelines when the instant offense is committed while the defendant is on probation or parole for a prior offense. Finally, the 1st basis is also somewhat akin to a “fact” required for the application of the Armed Career Criminal Act — the existence of three prior drug or violent felonies “committed on occasions different from one another”. See 18 U.S.C. § 924(e). Of course, the Second Circuit previously held that such a fact falls squarely within the Almendarez-Torres exception. But if a court violates the Sixth Amendment when it increases a defendant’s statutory maximum based on his repeated parole violations, why doesn’t it also violate the Sixth Amendment when it does the same based on the fact that his 3 prior qualifying felonies were committed on different occasions?
In any event, if Shepard didn’t hammer the point home clearly enough, Weisser should: Counsel should raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum. At worst, even if the Almendarez-Torres exception is not yet on its last legs, its scope is certainly an open question.”
When this Blog noticed yesterday that an amended opinion had been issued in Weisser, our fear was that the Court recognized this great dicta and decided to get rid of it. Fortunately, the Court did not do so, and in fact did the very opposite — it expanded upon and clarified its discussion concerning the limits of the Almendarez-Torres exception.
The critical addition is found in the same footnote previously discussed, footnote 10 on page 27 of the slip opinion. This footnote, with the new addition in red, now states:
“Specifically, the district court relied on (1) Weisser’s repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his ‘prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.’ Although certain facts of prior conviction are not subject to the Sixth Amendment’s protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 543 U.S. ___, 125 S. Ct. 1254, 1262 (2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser’s previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are ‘too far removed from the conclusive significance of a prior judicial record’ to fall within the exception. Shepard, 125 S. Ct. at 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relyin on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same).”
The take-away from the amended portion is that there are indeed facts, ostensibly concerning a defendant’s criminal history, that are “too far removed from the conclusive significance of a prior judicial record” to be covered by the Almendarez-Torres exception. Amended Op. at 27 n.10. Those facts include the facts listed in the 2nd and 3rd categories relied upon by the district court to horizontally depart: the defendant’s “repeated failure to register as a sex offender” and his “‘prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.'” Id. One would assume that other “criminal history” facts of a similar variety likewise would not be covered by the Almendarez-Torres exception, though which facts would so qualify is unclear. Indeed, the amended opinion does not even answer whether the first category of facts relied upon by the district court — Weisser’s prior repeated parole violations — falls within or outside of the Almendarez-Torres exception, noting only that this question “is open to debate.” Id.
At the very least, the amended opinion in Weisser should serve as a clarion call to all defense counsel: Raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum!