Tuesday, March 15, 2005

Shepard: where do we go from here?

The Supreme Court’s decision in Shepard fundamentally shifted the analysis of guidelines and sentencing statutes, providing rich opportunities for creative litigation. There are three basic reasons the opinion will have far-reaching effects. First, the types of cases in which the modified categorical analysis of prior convictions is necessary has greatly expanded to include the most commonly implemented guidelines, including illegal reentry, felon-in-possession-of-a-firearm, and career offender. Second, the Court has now decided that the judiciary must construe statutes to avoid deciding whether Almendarez-Torres is still viable, which requires reexamination of the ACCA and § 1326(b)(2) to determine whether, as in Buckland, the statutory silence on pleading and proof procedures should be filled with indictment and jury trial rights. Third, cases involving the narrow core of Almendarez-Torres – nothing more than the fact of conviction – are now more than ever subject to eventual reversal by the Supreme Court. Let’s take a look at predictable effects from the central holding to the more attenuated effects of Shepard.

The Modified Categorical Approach & The ACCA

Fifteen years ago, the Court in Taylor defined "burglary" under the Armed Career Criminal Act and permitted the use of the indictment plus the jury instructions to determine whether, in a state with an overly broad definition of burglary, the prior conviction met the Court's generic definition. In Shepard, the defendant pleaded guilty under a non-generic burglary statute. The First Circuit permitted use of police reports and a complaint application to determine whether a prior conviction for non-generic burglary involved entry into a building, thereby qualifying the prior as generic burglary under the ACCA. The Supreme Court, applying the rule of constitutional avoidance, construed the ACCA to limit inquiry regarding the facts of the prior conviction.

The Court reasoned that judicial resolution of the disputed facts would require the Court to decide whether Almendarez-Torres authorizes a judge to make the finding regarding the disputed fact or whether, under Jones and Apprendi, the increase in statutory maximum can only be decided by a jury under the Sixth Amendment. To avoid the serious risk of unconstitutionality, the Court construed the ACCA to limit examination of the record "to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information."

The closest point of Shepard’s impact is the Ninth Circuit’s recent decision in Smith. There, the court went far afield from core judicial findings to decide facts regarding a non-generic burglary based on statements by the prosecutor and defense counsel. Prior to issuance of the opinion in Smith, the court entered an order staying the mandate pending the decision in Shepard. With the guidance from Shepard, Smith is no longer good law because the reasoning and mode of analysis has been undermined by intervening Supreme Court authority. Shepard requires, and Smith lacks, "explicit factual findings by the trial judge to which the defendant assented." The Smith opinion’s derogation of the Taylor requirement of a charging document, although not directly at issue in Shepard, should also be subject to constitutional avoidance because serious constitutional doubt under the due process clause would accompany a construction that allowed a prior conviction that did not sufficiently charge the offense.

Modified Categorical Approach & Career Offender, Firearms, and § 1326 Guidelines

The Ninth Circuit has a cottage industry in applying modified Taylor analysis to an array of the most commonly applied guideline enhancements. Two en banc cases, Rivera-Sanchez and Corona-Sanchez, provide the basic guidance in applying Taylor (and now Shepard) to the guideline enhancements for prior convictions under § 2K2.1 (firearms), § 2L1.2 (illegal reentry), and § 4B1.2 (career offender). On prior drug convictions, Rivera-Sanchez closely analyzed the California transportation statute and found it to be non-generic (trafficking was not necessary given the breadth of the statute); several unpublished opinions have done the same with the California possession for sale statute. The same type of analysis applies to "crime of violence" in the multiple and varying definitions throughout the guidelines. All precedent in this area needs to be reviewed for compliance with Shepard.

There are a few general observations helpful to the defense. First, Shepard provides a gloss for the modified categorical approach set out in cases such as Wenner and Fish, providing guidance on the type of judicial facts that can be noticed. Second, Shepard’s repeated quotation of Taylor’s "narrow" exception to a strict categorical approach reinforces the view in Parker (5 F.3d 1322 (9th Cir. 1993)) and footnote 4 of Fish that the modified categorical approach should not apply to "catch-all" provisions, undercutting the case-by-case approach to an "otherwise" clause in Matthews. Third, in Oregon, Shepard needs to be applied to any burglary conviction because the statute, as in Wenner, is overly broad in failing to specify that the place entered is a generic building.

Constitutional doubt & the ACCA and § 1326

On January 25, 2005, the posted blog was entitled Almendarez-Torres: dead letter after Dretke v. Haley (available here). In Haley, Justice O’Connor applied the doctrine of constitutional avoidance to Almendarez-Torres in construing the habeas corpus statute to require resolution of other issues before considering actual innocence at sentencing. Now that Shepard has applied the doctrine of constitutional avoidance to one aspect of the ACCA, the argument in the earlier blog is even stronger: the amended § 1326 and the ACCA, neither of which set out pleading and proof requirements, must be construed to require compliance with the Fifth and Sixth Amendments to avoid deciding whether Almendarez-Torres is still valid.

Count the votes. The Shepard five are Justices Souter, Stevens, Scalia, Ginsburg, and Thomas (Justice Thomas concurring because Almendarez-Torres should be overruled); in Haley, Justice O’Connor wrote for all but the three dissenters, Justices Kennedy, Souter, and Stevens. Everyone except Justice Kennedy – and including the Almendarez-Torres author, Justice Breyer – has approved application of the doctrine of constitutional avoidance to Almendarez-Torres. And Justice Kennedy's Haley dissent was based on the righteous position that the sentence should be reversed on the spot, without the delay of applying constitutional avoidance.

Since Almendarez-Torres, Congress has amended § 1326 to require judicial determination of an array of extra-record facts through the expanding definition of "aggravated felony." The argument that the doctrine of constitutional avoidance should be applied to the amended § 1326 is in front of the Ninth Circuit in Munoz-Cruz (opening brief here). Similarly, the Ninth Circuit will be deciding whether Haley, and hence the doctrine of constitutional avoidance, should be applied to the ACCA in Swift (opening brief here). The Ninth Circuit has already identified the constitutional problem to be avoided in Dillard, where the failure to allege and prove an enhancing factor in a prior conviction violated the Sixth Amendment. And in Greer (2005 WL 396368 (M.D.Ga. Feb. 17, 2005), the court found that the Sixth Amendment required pleading and proof that the prior felonies were "violent" before the ACCA applied. Litigators can easily plug Shepard into the analysis already provided by Haley.

These issues should be litigated in the district court now, with no limitations from precedent. Up to Shepard, the Ninth Circuit had simply decided to wait until the Supreme Court considers the merits of Almendarez-Torres’s viability (for example, Pacheco-Zepeda & Quintana-Quintana). Under the Miller standard for considering precedent undermined by intervening Supreme Court authority, these cases are no longer valid. All the rulings derive from Pacheco-Zepeda, in which the defendant asserted that, after Apprendi, Almendarez-Torres "no longer has precedential value." Shepard has now instructed that there is a step in the analysis skipped in Pacheco-Zepeda and its progeny: the court must first attempt to construe the statute in a manner that does not require it to rely on Almendarez-Torres. Therefore, district courts and Ninth Circuit panels are free to construe § 1326 and the ACCA and any other such statute to avoid serious constitutional problems by requiring pleading and proof beyond a reasonable doubt as a matter of statutory construction.

Constitutional Doubt & Career Offender

Career offender is a strange creature in the post-Booker, post-Shepard world. The effects of career offender can be extreme: sale of a single gram of marijuana, with two qualifying crimes of violence or drug trafficking offenses, sets the guideline range at offense level 32 in Criminal History Category VI (Reyes, 8 F.3d 1379 (9th Cir. 1993)). And career offender is not strictly a guideline creation; Congress set out the criteria, then ordered that "the guidelines specify a sentence to a term of imprisonment at or near the maximum term authorized" in 28 U.S.C. § 994(h). The authorizing statute must be construed as requiring, as a matter of statutory construction to avoid serious constitutional questions, that the prior convictions be pleaded and proven beyond a reasonable doubt (or admitted during a plea colloquy) for the enhancement to apply. The career offender guidelines also may implicate Fifth and Sixth Amendment rights because the drastic effect of § 4B1.2 may be the difference between a reasonable and an unreasonable sentence.

Almendarez-Torres Expansion

In any litigation regarding prior convictions and Almendarez-Torres, it is critical to remember that Apprendi, in expressing doubt regarding the continued viability of Almendarez-Torres, required that Almendarez-Torres be narrowly applied and limited to its facts. In Haley, the court also noted the narrow scope of the actual holding in Almendarez-Torres: the Court recognized that applying Almendarez-Torres to the sequence of prior convictions would be an expansion of the case’s holding. And the core validity should be quite limited because Almendarez-Torres only involved a Fifth Amendment challenge to the indictment in a case in which, during the plea colloquy, the defendant admitted that he had a prior conviction for an aggravated felony.

So what kind of facts should now be considered beyond Almendarez-Torres and within the protections of Apprendi/Blakely/Booker? How about the sequence of convictions required for the ACCA ("committed on occasions different from one another"), the illegal reentry statute (before deportation), and career offender ("previously been convicted" as well as related cases facts under § 4A1.3)? How about the various age requirements? Most of the battle against Almendarez-Torres need not get to the core merits because the case is so narrow, and the statutory (and guideline) uses of prior convictions frequently involve facts beyond the face of the conviction.

Almendarez-Torres Heartland

In Shepard, the National Association of Criminal Defense Lawyers filed an amicus brief suggesting that the Court should use the case to simply reverse Almendarez-Torres. As recognized by Justice Thomas concurring, the parties did not raise that issue. However, Justice Thomas once again recognized that, without his mistaken vote in Almendarez-Torres, the case would not survive. With some passion, Justice Thomas points to the shameful number of persons incarcerated in violation of Sixth Amendment rights.

The core holding of Almendarez-Torres should be preserved for review by the Supreme Court. Under the Booker constitutional ruling, if the guidelines were mandatory, the effect of prior convictions is pervasive. The Chapter 4 facts increase the maximum sentence along the horizontal axis, and think of all the non-fact-of-conviction factors such as length of sentence, time since release, and supervision status at the time of the offense. The Booker remedial opinion still requires thinking about these facts where the resolution would be the difference between a reasonable and an unreasonable sentence. The procedures for 21 U.S.C. § 851 may also implicate the core holding of Almendarez-Torres, especially given its Fifth Amendment focus.

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


Anonymous Anonymous said...

Great analysis. I recently stumbled on a case out of Washington state -- State v. Jones, Nos. 53322-3-I, 53875-6-I, 2005 WL 458744 (Wash. App. Div. 1 Feb 28, 2005), which held that whether or not a defendant's offender score causes a bump in criminal history due to community custody status at the time of the offense is a factual issue that must be pled and proven under Apprendi. Seems like this can be used, for example, in arguing that whether or not prior convictions are separate under ACCA is something that must be pled and proven.

Thursday, March 17, 2005 9:00:00 AM  

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