United States v. Weisser, Docket No. 01-1588 (2d Cir. June 20, 2005) (Walker, Cardamone, and Owen, D.J.) (Op. by Walker): In this otherwise ho-hum opinion in which the primary appellate issue concerns the defendant’s claim that he has been deprived of the right to appeal because much of the evidence presented against him at trial was destroyed during the September 11th attacks on the World Trade Center, the Circuit makes a very interesting statement about the limit of the Almendarez-Torres exception to the Apprendi–Blakely rule. The opinion is worth a quick perusal for that statement alone.
The essential facts are simple. Weisser lived in San Francisco and engaged in AOL chat sessions with someone claiming to be an 11-year-old boy in New York. The “boy” was of course an undercover agent fishing for customers (er, defendants). Much sexual conversation ensued, along with a planned liaison in a Big Apple hotel. To his unhappy surprise, Weisser found not a boy but a squad of federal agents in his hotel room.
Weisser went to trial and was convicted. At the pre-Blakely sentencing, the district court upwardly departed “horizontally”, i.e., in the Criminal History Category, from III to VI. Finally, during the pendancy of Weisser’s appeal, the 9/11 attacks occurred, which destroyed much of the Government’s evidence against him at trial.
The primary claim on appeal was whether Weisser was deprived of his right to appeal by the destruction of the trial evidence. The Circuit ruled against him, concluding that (1) the appellant must demonstrate prejudice “before relief based on missing documents in the record can be granted,” op. at 7; (2) prejudice “exists if the record is so deficient that it is impossible for the appellate court to determine if the district court has committed reversible error,” op. at 9-10; and (3) Weisser had not adequately shown how his appeal was prejudiced by the destruction of the trial evidence.
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.