Almendarez-Torres: dead letter after Dretke v. Haley

The precedential effect of Almendarez-Torres fundamentally changed on May 3, 2004, when the Supreme Court, in Dretke v. Haley, found that both its validity and expansion raised "difficult constitutional questions...to be avoided if possible." Now statutes that increase maximums based on prior convictions, such as the illegal reentry statute (8 U.S.C. § 1326) and the Armed Career Criminal Act (18 U.S.C. § 924(e)), should be re-interpreted to require pleading and proof to a jury beyond a reasonable doubt under the doctrine of constitutional avoidance.

The line of cases leading from Apprendi to Blakely to Booker has left behind one beleaguered exception - prior convictions that raise the statutory maximum. In Almendarez-Torres, the 5-4 majority, relying on a distinction between elements and sentencing factors, did not require pleading in the indictment of the prior conviction that increased the maximum from two to twenty years. In his concurring opinion in Apprendi, Justice Thomas renounced his swing vote in Almendarez-Torres; in Ring, the Court abandoned any distinction based on sentencing factors. Booker ignored Almendarez-Torres in its recital of the precedent in this area.

The Court made express the deterioration of Almendarez-Torres in Dretke v. Haley, a habeas corpus case under 28 U.S.C. § 2254. In his challenge to a Texas recidivist sentence, of which he was actually innocent, Mr. Haley presented an alternative argument that the failure to afford trial rights on the priors violated the Constitution because Almendarez-Torres should be overruled or should not be extended to the additional fact that the priors were sequential.

The Haley court specifically applied the doctrine of constitutional avoidance to Almendarez-Torres, stating: "Respondent contends that Almendarez-Torres should be overruled or, in the alternative, that it does not apply because the recidivist statute at issue required the jury to find not only the existence of his prior convictions but also the additional fact that they were sequential. . . . These difficult constitutional questions . . . are to be avoided if possible." Given that sufficiency based on Winship was at issue in Haley, the Court would also have had to consider extension of Almendarez-Torres, a Fifth Amendment right to indictment case, to the trial rights being asserted by Mr. Haley.

Defenders have been challenging the application and extension of Almendarez-Torres to the amended 1326 and to the ACCA, only to face rejection based on the position that only the Supreme Court can overrule Almendarez-Torres (as in the cases starting with Pacheco-Zepeda). Now, under the rules set out in Miller v. Gammie, intervening Supreme Court authority has undermined the reasoning or "mode of analysis" of the cases that duck the question. Instead, the statutes must be construed in a manner that avoids a decision on the constitutional questions, as in Buckland, in which the Ninth Circuit reconstrued the federal drug statutes.

Neither the illegal reentry statute nor the ACCA forecloses construction consistent with Fifth and Sixth Amendment pleading and trial rights. Both have been amended to add more and more variables in the sequence and factual analysis necessary to consider the priors as predicates. Haley requires that the courts construe these statutes to avoid the serious constitutional question regarding the validitity of Almendarez-Torres and extension of that case.

The identical statutory Apprendi-based argument should apply to the firearms, illegal reentry, and other guideline enhancements keyed into prior convictions based on Blakely. This is another area where Booker, especially its ex post facto effect, will need to be played out.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon.