Certiorari Needed To Address Expansion Of Almendarez-Torres From The Fifth To The Sixth Amendment

In two recent cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. In dicta, Justice Alito mischaracterized Almendarez-Torres as a Sixth Amendment case in a footnote in James. Then the Ninth Circuit en banc Grisel case found no constitutional doubt regarding the failure to prove prior convictions because Almendarez-Torres not only held that prior convictions need not be alleged under the right to indictment but need not be "proved to a jury, or admitted by the defendant." As previously blogged here, the Supreme Court should grant certiorari to bring clarity to this exceptionally important area of the law.

Almendarez-Torres Is Solely A Fifth Amendment Indictment Case

The Almendarez-Torres holding only purported to address the Fifth Amendment right to indictment. In that case, the defendant raised the failure of the indictment to include the prior conviction that increased the statutory maximum for illegal reentry from two to twenty years. The Court noted that, because he admitted the prior three times during the plea colloquy, "Petitioner makes no separate, subsidiary standard of proof claims with respect to his sentencing," and therefore "we express no view on whether some heightened standard of proof might apply...."

In the following Term, the Supreme Court addressed a Sixth Amendment claim in Jones that the increase of statutory maximum under the car-jacking statute for bodily injury required a finding by a jury beyond a reasonable doubt. Because the statute was ambiguous, the statute could be construed to require Sixth Amendment compliance without reaching the ultimate constitutional question. The dissenters claimed that the Doctrine of Constitutional Avoidance could not apply because Almendarez-Torres found the canon inapplicable. The Jones majority, in applying the Doctrine of Constitutional Avoidance to the statute, rejected dissenter’s argument because Almendarez-Torres "stands for the proposition that not every fact expanding a penalty range must be stated in a felony indictment" whereas "we are concerned with the Sixth Amendment right to jury trial and not alone the rights to indictment and notice as claimed by Almendarez-Torres." This distinction especially makes sense given that grand jury rights are not even incorporated into the Due Process Clause (Hurtado), while the right to jury trial and the reasonable doubt standard are fundamental requirements for incarcerating our fellow humans (Duncan; Winship).

Then Apprendi came down in a case in which the statute unambiguously required harsher punishment based on a judge-made finding by a preponderance of racial animus. The Supreme Court incorporated the Jones constitutional concerns and required Sixth Amendment compliance regarding factors that increased the statutory maximum. The Court left the Sixth Amendment question regarding prior convictions open: the general rule included an exception for prior convictions, but also included the requirement that Almendarez-Torres be treated as "a narrow exception to the general rule..." Because Apprendi did not involve prior convictions, and because Apprendi did not involve the federal right to grand jury indictment, as did Almendarez-Torres (footnote 3), the Sixth Amendment question regarding prior convictions did not need to be addressed. As Chief Justice Reinquist stated in Cobb, "Constitutional rights are not defined by inferences from opinions which did not address the question at issue."

After Apprendi, Almendarez-Torres continued to be undercut. In Ring, the Court decisively rejected the sentencing factor/element distinction for the purposes of Sixth Amendment analysis, despite its application in Almendarez-Torres. In two cases, the Supreme Court explicitly ruled that application and extension of Almendarez-Torres involved serious constitutional questions to be avoided if possible under the Doctrine of Constitutional Avoidance (Haley; Shepard). And just this Term, the Supreme Court in Cunningham’s footnote 14 explicitly rejected the contention that Sixth Amendment analysis should differentiate between offense and offender characteristics.

How Did Almendarez-Torres Become A Sixth Amendment Case?

In James, the Court split 5-4 along unconventional lines in holding that, under the Armed Career Criminal Act, attempted burglary under Florida law qualified as a predicate "violent felony." Justice Alito’s opinion drew a strong dissent from Justice Scalia regarding the rules of statutory construction and the rule of lenity. Mr. James only raised a statutory issue but asserted that, even though he admitted his prior convictions in his guilty plea, Apprendi favored his construction. In a footnote, Justice Alito pointed out the admission regarding prior convictions, then added: "[I]n any case, we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes," citing Almendarez-Torres.

Given the plain language of Almendarez-Torres disclaiming any Sixth Amendment holding, given the holding of Jones that Almendarez-Torres is only an indictment case, given the holding of Apprendi that Almendarez-Torres must be narrowly construed, and given the holdings of Haley and Shepard that application and extension of Almendarez-Torres should be avoided if possible, the James footnote amounts to either a mistake or an adoption of the Jones dissent in violation of the rules of stare decisis.

Similarly in Grisel, the Ninth Circuit en banc rejected the argument that the Doctrine of Constitutional Avoidance applied to the Armed Career Criminal Act. Mr. Grisel argued that, where the fact, sequence, and characteristics of predicate convictions were not admitted or proved to a jury beyond a reasonable doubt, the court had to construe the ACCA to be inapplicable because those facts increased the statutory maximum from ten years to life without parole. The court mischaracterized Almendarez-Torres as resolving that not only the Fifth Amendment right to indictment but the Sixth Amendment standards of proof. If that were the holding of Almendarez-Torres, the court would be correct that only the Supreme Court could overrule that holding (Agostini). But if Almendarez-Torres is correctly limited to the indictment context, the court has abdicated its responsibility to construe statutes to avoid serious risks of possible constitutional violations.

This is especially true given the Supreme Court’s holding in Martinez that the Doctrine of Constitutional Avoidance involves not only the facts of the case at hand but the "least common denominator" – the facts that would create the biggest constitutional problem. For example, the statute must take into consideration the possibility that the facts for increased punishment could only be proved by a preponderance, not beyond a reasonable doubt, that the defendant is the same person as the person with the prior conviction or that the underlying crimes were "committed on occasions different from one another." The Grisel opinion suggested that the prior conviction’s date of the offense solves the latter problem, but the statute’s "different occasion" language is a factual question separate from the date listed in the indictment, which is also not necessarily admitted during the plea colloquy.

Certiorari Is The Only Solution

So what should federal defenders do when clients are sentenced above the statutory maximum based on prior convictions without compliance with Sixth Amendment jury trial and reasonable doubt requirements? We see great increases in sentences based on the sequence and characteristics of prior convictions in the context of firearms, immigration, and child pornography statutes. The recent competing statements of Justice Stevens and Justice Thomas on the denial of certiorari in Rangel-Reyes demonstrate that the Supreme Court is not likely to revisit the constitutional merits of Almendarez-Torres any time soon. Our best hope seems to be to preserve the issue and to encourage the Court to grant certiorari to construe statutes in a manner that limits Almendarez-Torres without the necessity of overruling the Almendarez-Torres holding on the Fifth Amendment right to indictment.

And the reasons for a grant of certiorari are exceptionally strong. The three areas in which these issues arise are among the most frequently prosecuted federal crimes; immigration alone now accounts for almost 25% of federal sentences imposed. With the conflict between the Jones holding and the James footnote, the Supreme Court cannot hope for the lower courts to sort things out; linear analysis has been ruled out by the conflicting precedent. And the jury trial rights – especially the reasonable doubt standard – are at the apex of protections that should be required, under the statutes or the Constitution, before sentencing people to long terms of incarceration.

In the illegal reentry context, the argument for certiorari based on the Doctrine of Constitutional Avoidance is set out in the Munoz-Cruz petition linked here. Under the ACCA, the memorandum linked here sets out the arguments that defendants similarly situated to Grisel can make for certiorari. We need to keep fighting even in the face of serious setbacks where logic and stare decisis should result in substantially less incarceration for our clients.

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