Rogue Footnote Creates Need For Cert To Address Expansion Of Almendarez-Torres

In three Ninth Circuit cases, stare decisis became a dead letter for those advocating that Sixth Amendment rights should apply to the characteristics, sequence, and existence of prior convictions that increase statutory maximums. Defenders have been arguing that the Armed Career Criminal Act must be construed to avoid constitutional doubts regarding pleading and proof that the defendant has qualifying prior convictions and they occurred on “occasions different from one another.” The Doctrine of Constitutional Avoidance argument is based on a syllogism from a series of Supreme Court cases starting with Almendarez-Torres:

• Almendarez-Torres involved the Fifth Amendment right to grand jury indictment, as held in Jones;

• Almendarez-Torres must be narrowly construed, as held in Apprendi;

• Where the relevant statute is silent, rather than applying or extending Almendarez-Torres, the Doctrine of Constitutional Avoidance should be applied to interpret the statute to require Sixth Amendment-compliant proof of the characteristics and sequence of prior convictions that increase punishment, as held in Shepard and Haley;

• The ACCA is silent regarding pleading and proof of the characteristics and sequence of prior convictions that increase the statutory maximum from ten years to life imprisonment;

• Therefore, the ACCA must be construed to require Sixth Amendment-compliant proof of the characteristics and sequence of prior convictions.

But in James, a statutory construction case, Justice Alito dropped dicta in footnote 8 that mischaracterized Almendarez-Torres as a Sixth Amendment case, which – if accurate – would resolve doubt on that previously unresolved question.

The James footnote 8 has destroyed the lower courts’ ability to fairly resolve the pressing legal questions regarding prior convictions that increase statutory maximums. In the Fifth Circuit, two judges bashed litigators for having the temerity to raise such “non-debatable” issues in light of the James footnote 8, while a concurring judge dismissed any reliance on “the insignificant, peripheral dictum in footnote 8” (Pineda-Arrellano). The Ninth Circuit has now three times foreclosed debate on the Doctrine of Constitutional Avoidance in Grisel, Ankeny, and – most recently – Jennings. The First and Sixth Circuits have also abandoned discussion based on the James footnote, which is not only dicta but directly contradicts the holding of Jones.

In order for the rules of stare decisis to work for our clients, we need to persist in efforts to ask the Supreme Court to resolve the conflict in its precedent: either Jones is good law, the James footnote was a slip, and Almendarez-Torres is only a Fifth Amendment indictment case; or James expanded Almendarez-Torres to the Sixth Amendment without mentioning that such a holding would contradict Jones, Apprendi, Shepard, and Haley. The question is cert-worthy not only because of its importance in ACCA litigation and the development of post-Apprendi Sixth Amendment jurisprudence, but because the conflict in its opinions can best be addressed, and maybe can only be addressed, by the Supreme Court itself.

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, because a finding of bodily injury increased the statutory maximum under the car-jacking statute, the fact had to be found 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 the dissenters’ 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.”

Then Apprendi came down in a case in which the state assault 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, the Sixth Amendment question regarding prior convictions did not need to be addressed. “Constitutional rights are not defined by inferences from opinions which did not address the question at issue” (Cobb).

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 use 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 the Supreme Court in Cunningham’s footnote 14 explicitly rejected the contention that Sixth Amendment analysis should differentiate between offense and offender characteristics.

After Blakely and before Booker, lower courts held that characteristics and sequences of prior convictions implicated the Sixth Amendment (for example, Kortgaard, Ngo, Kuau, Henderson). In the Fourth Circuit, Chief Judge Wilkins issued a dissent in an ACCA case finding that, even without resort to the Doctrine of Constitutional Avoidance, the Sixth Amendment required pleading and proof of the ACCA factors that increased the maximum punishment from ten years to life without parole (Thompson).

How Did Almendarez-Torres Become A Sixth Amendment Case?

In James, the Court split 5-4 along unconventional lines in holding that, under the ACCA, 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 defendant’s admission regarding the 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 with no spot cite to a page or quotation supporting that proposition.

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 is either a mistake or an adoption of the Jones dissent in violation of the rules of stare decisis.

Based on James, the Ninth Circuit has now three times rejected the argument that the Doctrine of Constitutional Avoidance applied to the Armed Career Criminal Act. 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 unless governing Supreme Court authority held that Almendarez-Torres controlled against a Sixth Amendment challenge. Based on the James footnote 8, the court has consistently 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 Fifth Amendment right to indictment, the court has abdicated its responsibility to construe statutes to avoid 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. Under the ACCA, a defendant could receive life without parole, instead of a ten year maximum, where the government could not prove 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.”

Certiorari Is The 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 may not 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.

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; traditional analyses have 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.

When clients are sentenced without full Sixth Amendment protections, both the Doctrine of Constitutional Avoidance and the Sixth Amendment provide colorable claims worth preserving for appeal. We should keep litigating these issues: logic and stare decisis should be resulting in substantially less incarceration for our clients in the absence of Sixth Amendment compliance, either as a matter of statutory construction or directly under the Consitution.

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