Case o' The Week: 2+ years of custody too much for nine year old stealing candy bar, says Ninth in Washington
In a case that would make Victor Hugo proud, the Ninth rejects a thirty month bump for a defendant who stole a candy bar when he was nine. See United States v. Washington, __ F.3d __, 2006 Cal. Daily Op. Serv. 10725 (9th Cir. Sept. 6, 2006), decision available here. A very interesting little undermining of the "prior conviction" exception of Apprendi.
Players: Written by Judge Hug, joined by Pregerson and Clifton
Facts: Washington stole a candy bar from another kid when he was nine years old. Id. at 10752-53. Years later, as an adult, he was convicted for bank robbery and § 924(c). The sentencing judge jacked Washington’s Criminal History up to V, based solely on the candy-bar prior and other juvi adjudications. Id. This gave a guideline range of 77-96 months – about thirty months steeper than Category I, which is where his lack of adult priors would have put him.
Issue(s): “Washington contends that basing his criminal history on his juvenile adjudications violated the Sixth Amendment because his juvenile convictions were obtained without affording him the right to a jury trial.” Id. at 10753.
Held: “Because Apprendi’s prior conviction exception does not apply to juvenile adjudications obtained without the right to a jury trial, it is clear that, in Washington’s case, the district court impermissibly relied on such juvenile adjudications to impose a sentence above the maximum sentence authorized by the jury verdict and the mandatory guidelines in effect at that time.” Id. at 10755 (emphasis added).
Of Note: Washington was sentenced before Booker, back in the mandatory Guideline regime. Therefore, its core holding is limited to older pre-Booker cases still on appeal. The decision, however, has some intriguing concepts buried in its holding. Most notably, the panel extends the logic of Tighe – an ACCA (statutory max) case – to regular old run-of-the mill Criminal History and guideline ranges. See id. at 10754. This is a big deal, because in Tighe the juvi prior increased a “real” statutory maximum instead of just a guideline “statutory maximum” (a la Booker). See United States v. Tighe, 266 F.3d 1167, 1191 (9th Cir. 2001). In other words, after Washington juvi priors violate Apprendi because they increase the guideline range – at least, that’s true for mandatory guidelines. Extending the bar on juvi priors from ACCA to the guidelines is a very big step done in a very quiet way. This is a subtle, but real, chink the edifice of the Almendarez-Torres “prior convictions” exception to Apprendi.
The Ninth also signals that another proposed Apprendi “fix” isn’t going to fly: just upping all statutory maximums or guidelines to “life” to avoid Apprendi problems may violate Booker reasonableness and due process. Id. at 10753-54.
How to Use: Of course, Washington is of interest for any pipeline Booker case that had juvi priors in the Criminal History calculation. This subtle little expansion of the juvi-prior bar, however, also deserves to be tucked away for a later Apprendi day – maybe the Washington rule can be extended to other adjudications without juries, like immigration proceedings?
Tighe and Washington also suggest that it is just plain unreasonable (Booker unreasonable, that is) to increase a sentence so dramatically for juvenile adjudications. The pair of cases are great Booker ammo for Section 3553(a) pitches when juvenile priors have unfairly upped Criminal History and the guideline calculation.
For Further Reading: When will the Supremes finally get around to extending Apprendi to prior convictions? Seems like they’ve all but done that in Shepard. See Shepard v. United States, 544 U.S. 13 (2005). For an interesting discussion of Apprendi, juvenile adjudications, and the “prior conviction exception,” take a look at Berman’s post. See blog post here.
Steven Kalar, Senior Litigator N.D. Cal. Website available at www.ndcalfpd.org