The Ninth Circuit Takes On Enhanced Sentencing Under The Armed Career Criminal Act

Two cases from the Ninth Circuit today, when read in tandem, bode well for a serious look at recidivist sentencing policies that, up to now, have been unduly disparaging of Fifth and Sixth Amendment rights. In Grisel, the Court ordered rehearing en banc regarding a sentence imposed under the Armed Career Criminal Act; in Jimenez-Ortega, a panel abandoned Ninth Circuit precedent that had been superseded by Supreme Court authority.

Under the Armed Career Criminal Act, defendants charged with possession of a firearm face much harsher sentencing -- a maximum of life without parole instead of a ten year maximum -- if they have three prior predicate convictions. The predicate priors can include generic burglary convictions, as defined by the Supreme Court in Taylor. Where the burglary statute is nongeneric, the Court in Taylor, as modified by Shepard, described the modified categorical approach, which allows the use of judicially noticeable facts to determine whether the conviction under an over-broad statute constitutes a generic burglary conviction.

Oregon's statute is nongeneric, or over-broad, because entries into places like cars and lockers are included. However, an early Ninth Circuit case failed to address this aspect of Oregon law, resulting in treatment of the Oregon burglary statutes as sufficiently narrow to describe generic burglary. Further, the Ninth Circuit to date has simply relied on Almendarez-Torres to find no need for pleading in the indictment or proof beyond a reasonable doubt (or an admission during a plea colloquy) of the characteristics and sequence of the prior convictions.

Multiple consitutional issues should be avoided in this scenario. Under the Supreme Court's holdings in Haley and Shepard, the Doctrine of Constitutional Avoidance applies to any application or extension of Almendarez-Torres, as blogged most recently here (third section, with links to briefing). Further, under Shepard, the characteristics of generic burglaries, such as those encompassed within the nongeneric the Oregon statute, must be established with Sixth Amendment compliance as a matter of statutory construction.

Which brings us to the grant of rehearing en banc in Grisel. As set out in CJA panel attorney Kendra Matthews' opening brief (linked here) and the Federal Defender amicus brief (linked here), en banc review is appropriate to bring the treatment of the Oregon statutes in line with post-Taylor case law and to apply Fifth and Sixth Amendment standards, as a matter of statutory construction, to a statute that is silent on pleading and proof on the characteristics and sequence of prior convictions. Although the order for en banc review does not define the issue, the statutory construction of the ACCA, in light of the intervening Supreme Court case law in Haley and Shepard, is necessary to analysis of the Oregon convictions under Taylor. We should be careful to preserve these issues pending the ruling in Grisel.

The other criminal case on the docket today, Jimenez-Ortega, resolved an intra-Circuit conflict without resort to en banc review. Federal Defender Kasha Pollreisz of the San Diego office won a remand for her client based on the intervening Supreme Court decision in Gaudin that undercut and superseded Ninth Circuit law that did not require a finding of materiality for an obstruction of justice adjustment based on trial perjury. This important win on a recurring sentencing issue should also help in arriving at the right result in Grisel. The key to Grisel's ruling that the case did not need to be resolved en banc -- and to all litigation regarding statutory enhancements based on prior convictions -- is the en banc decision in Miller v. Gammie on the effect of intervening Supreme Court authority. Just as the Supreme Court in Gaudin superseded Ninth Circuit precedent on materiality, the Supreme Court's decisions in Haley and Shepard superseded Ninth Circuit precedent on the pleading and proof required under the ACCA.

We should be using Jimenez-Ortega to request favorable rulings in the first instance and preserving all our challenges that involve Almendarez-Torres and the Doctrine of Consitutional Avoidance. Where not charged by indictment or proved beyond a reasonable doubt, statutory enhancements under recividist provisions such as the Armed Career Criminal Act and the immigrations statutes apply and extend the reach of Almendarez-Torres. Each of those statutes, which are silent on the manner of pleading and proof, must now be construed to be Fifth and Sixth Amendment compliant, just as the Ninth Circuit in its en banc opinion in Buckland reconstrued the federal drug statutes to require Fifth and Sixth Amendment compliance.

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