Browning: another reason to apply the Doctrine of Constitutional Avoidance to the Armed Career Criminal Act

In Browning, the Seventh Circuit pointed out Booker’s inconsistency with Almendarez-Torres, but affirmed an ACCA sentence because only the Supreme Court can overrule Almendarez-Torres. In clinging to Almendarez-Torres, the court failed to follow two Supreme Court holdings requiring that courts must avoid the application and extension of the Almendarez-Torres under the Doctrine of Constitutional Avoidance. The ACCA presents the classic opportunity for such statutory construction because the text provides no instruction regarding the pleading and proof requirements. In the absence of such legislative command, the court is free to -- and must --reinterpret the ACCA in light of the Supreme Court’s recent Sixth Amendment jurisprudence to require pleading by indictment and proof beyond a reasonable doubt of the sequence and characteristics of the three predicate offenses (as briefed here).

In Browning, after conviction by jury trial, the defendant disputed whether the supposed ACCA predicate convictions were related. The good news is the Browning court’s clear understanding of the constitutional doubt regarding the validity of Almendarez-Torres: "Booker holds that there is a right to a jury trial and to the reasonable-doubt standard in a sentencing proceeding (that is, the Sixth Amendment is applicable) if the judge’s findings dictate an increase in the maximum penalty. Findings made under the ACCA do that. So if logic rules, those findings too are subject to the Sixth Amendment." This statement reinforces the Supreme Court holdings – not addressed in Browning – that the Doctrine of Constitutional Avoidance applies to application and extension of Almendarez-Torres.

As previously blogged here and here, both Shepard and Haley hold that the continuing validity and the extension of Almendarez-Torres implicate the Doctrine of Constitutional Avoidance. In Haley, the Court stated that, given post-Almendarez-Torres Sixth Amendment jurisprudence, whether a jury must find beyond a reasonable doubt the existence of prior convictions and the additional fact that they were sequential are "difficult constitutional questions...to be avoided if possible." In Shepard, the Court limited the source of facts regarding the characteristics of prior convictions for the same reason: "The rule of reading statutes to avoid serious risks of unconstitutionality....therefore counsels us to limit the scope of judicial factfinding on the generic character of a prior plea."

Mr. Browning apparently did not invoke the Doctrine of Constitutional Avoidance. As in Shepard, where Justice Thomas noted that the defendant did not raise the general applicability of Almendarez-Torres to the ACCA, the statutory question must be raised to be decided – and the question is still one of first impression not addressed or decided in a published opinion. But Browning provides strong evidence in support of the seriousness of the constitutional question whether, in the absence of jury findings beyond a reasonable doubt, the ACCA’s increase of the statutory maximum violates the Sixth Amendment.

The Seventh Circuit's analysis simply missed a step critical to resolution of the pleading and proof requirements under the ACCA. Although correctly noting that there is no summary judgment or directed verdict in criminal cases, the court allowed for judicial determination of the characteristics and sequence of the priors based on Almendarez-Torres. The court noted the illogic of denying Sixth Amendment protection to judicial findings, but suggested that judicial findings protect defendants.

But depriving defendants of Sixth Amendment rights does not protect defendants. On the contrary, Almendarez-Torres itself was based in part on the contrast with weapons cases: the jury hearing a § 1326 illegal reentry case would not know of any prior convictions, whereas, in contrast, the jury knows full well in a § 922(g) prosecution for felon in possession of a firearm -- the predicate for ACCA treatment -- that the defendant has a prior conviction. Almendarez-Torres, 523 U.S. at 230 ("But cf. 18 U.S.C. § 922(g)(1)(prior felony conviction an element but conduct not otherwise unlawful.")). And Justice Souter in Shepard specifically noted that the prior conviction problem is appropriately in the hands of the defendant. 125 S.Ct. at 1263 n.5("[A]ny defendant who feels the risk of prejudice is too high can waive the right to have a jury decide questions about his prior convictions.")). See also Old Chief, 519 U.S. 172 (stipulation required to avoid prejudice from the type of prior conviction in a § 922(g) case). As Justice Thomas pointed out in his Shepard concurrence, "Innumerable criminal defendants have been unconstitutionally sentenced under the flawed rule of Almendarez-Torres, despite the fundamental ‘imperative that the Court maintain absolute fidelity to the protections of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt requirements.’"

The Supreme Court has instructed courts that statutes must be construed to avoid constitutional questions regarding pleading and proof on the sequence and characteristics of prior convictions. Mechanical adherence to Almendarez-Torres ignores that instruction and is especially dismaying because of the limits of the case. Apprendi required that Almendarez-Torres be narrowly limited to its unique facts. Thus, extension of Almendarez-Torres to characteristics of prior convictions and their sequence are simply not governed by Almendarez-Torres, which only involved the Fifth Amendment right to indictment and only referred to the fact of conviction. Almendarez-Torres itself explicitly disclaimed any holding regarding proof of priors: "[W]e express no view on whether some heightened standard of proof might apply to sentencing determinations that bear significantly on the severity of sentence." In a case that increases the § 922(g) maximum from ten years to life without parole, reliance on Almendarez-Torres is a major extension of a case the Supreme Court has held should be sharply limited.

The courts need to be directed to the essential first question in addressing statutes that enhance sentencing maximums based on the sequence and characteristics of prior convictions. The published cases are full of pronouncements that Almendarez-Torres must be followed unless and until reversed by the Supreme Court. But no court should even be reaching that question until the Doctrine of Constitutional Avoidance has been applied.

We need to be consistently arguing the Doctrine of Constitutional Avoidance instead of allowing the courts to repeatedly affirm Sixth Amendment violations with the Almendarez-Torres mantra. The memo linked above is directed to the ACCA but is adaptable to other substantive or procedural sentencing statutes that involve prior convictions but do not set out the means for pleading and proof.

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