Monday, March 7th, 2005

The “Prior Conviction” Exception to the Apprendi Rule Takes a Very Large Step toward Its Impending Demise

Shepard v. United States, No. 03-9168 (U.S. March 7, 2005): In a much anticipated case finally decided today, the Supreme Court (by Justice Souter for a 5-justice majority) ruled that in determining whether a prior conviction qualified as a predicate felony for the Armed Career Criminal Act, 18 U.S.C. § 924(e), when the statute of conviction is sufficiently broad to include both qualifying and non-qualifying offenses, a sentencing court “is generally limited to examining the statutory definition [of the prior offense of conviction], charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented.” Although the holding of the case is important in itself, it is the decision’s uncertain ramification for the continuing viability of the “prior conviction” exception to the Apprendi rule that has generated the most interest.

In Shepard, the Government attempted to rely on police arrest reports (and the complaint applications they supported) to demonstrate that the defendant’s conviction was in fact for a “generic burglary” (i.e., breaking & entering a building as opposed to a car or boat), which qualifies as an ACCA predicate, even though nothing else in the record established this. The Supreme Court rejected this attempt, holding as a matter of statutory interpretation and in light of its prior decision in Taylor v. United States, 495 U.S. 575 (1990), that a court cannot rely on such documents (described as “documents submitted to lower courts even prior to charges,” Op. at 7) to determine whether a prior conviction qualified as an ACCA predicate. Instead, where the prior conviction resulted from a guilty plea, a court “is limited to [examining] the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judges and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Op. at 12.

As noted, the more interesting aspect of the case is what it says about the viability of the “prior conviction” exception to the Apprendi rule, established in Almendarez-Torres v. United States, 523 U.S. 224 (1998). Concerning this point, the majority comes very close to overruling Almendarez-Torres, but stops just short of inflicting the coup de grace. Thus, after rejecting the Government’s position through statutory interpretation and a close analysis of Taylor, Justice Souter tantalizingly writes that “[d]evelopments in the law since Taylor . . . provide a further reason to adhere to the demanding requirement that any sentence under the ACCA rest on a showing that a prior conviction ‘necessarily’ involved . . . facts equating to generic burglary.” Op. at 10. Those “developments”, of course, refer to the Court’s Sixth Amendment jurisprudence as evidenced in cases such as Jones v. United States, 526 U.S. 227 (1999), and Apprendi (2001), holding that, as a general matter, facts that “raise the limit of the possible federal sentence must be found by a jury.” Op. at 10. Because a “sentencing judge considering the ACCA enhancement would (on the Government’s view) make a disputed finding of fact about what the defendant and state judge must have understood as the factual basis of the prior plea, [] the dispute raises the concerns underlying Jones and Apprendi.” Op. at 11. In such a situation, Justice Souter wrote, Almendarez-Torres does not help the Government: “While the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi, to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute.” Id. Relying on “[t]he rule of reading statutes to avoid serious risks of unconstitutionality,” the majority concludes that this rule “counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea.” Op. at 11-12.

After Shepard, therefore, the most that one can say is that a majority of the Supreme Court has a “serious constitutional doubt” about the continuing viability of Almendarez-Torres. Justice Thomas goes further in his concurrence, writing that “a majority of the Court now recognizes that Almendarez-Torres was wrongly decided.” Concurrence at 2. Of course, this has been true since Apprendi in 2001, when Justice Thomas (who provided the 5th vote in Almendarez-Torres) first made his mea culpa in declaring that he erred in joining the majority in Almendarez-Torres; yet the Court continued to pay lip service to the prior conviction exception in subsequent cases (such as, most famously, Blakely in 2004). A footnote in Justice Souter’s majority opinion enhances the anti-Almendarez-Torres flavor, see Op. at 12 n.5, but again does not settle the issue.

Indeed, even the dissent (by Justice O’Connor, for 2 other justices; the Chief did not participate) adds fuel to the “death of Almendarez-Torres” fire by “strongly suspect[ing] that the driving force behind today’s decision is not Taylor itself, but rather [the] further developments in the law” represented by Apprendi. Dissent at 10.

It would appear, in sum, that the prior conviction exception to the Apprendi rule will not survive for long. Though some may wonder why the Supreme Court did not simply do so in Shepard, there is clearly a majority that believes that Almendarez-Torres was wrongly decided.

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