Tuesday, March 08, 2005

Case o' The Week: Shepard questions Almendarez-Torres' viability

The Supreme Court's March 7 decision in Shepard v. United States, 2005 WL 51694 (Mar. 7, 2005), is remarkable, for it may sound the death knell for the hated Almendarez-Torres decision. The holding of the case is that police reports cannot be used to prove that burglaries were "violent felonies" to qualify as ACCA predicates.

The tantalizing aspect of the case, however, is Section III -- where Souter pleads for an opportunity to reverse Almendarez-Torres in light of Apprendi. With Thomas (who dissents as to Section III, because the Apprendi holding didn't go far enough!), Souter has five Justices to reverse Almendarez-Torres.

Players: Linda Thompson and Jeffrey Green for Shepard.

Facts: Shepard faced an ACCA sentence, and the government attempted to prove that prior burglary convictions were "crimes of violence" using police reports. The district court refused to do so, and the case bounced up to the First Circuit twice. 2005 WL 51694, *3. The Supreme Court took cert on the First Circuit’s reversal of the district court, requiring police reports be taken into account.

Issue(s): "The question here is whether a sentencing court can look to police reports or complaint applications to determine whether an earlier guilty plea necessarily admitted, and supported a conviction for, generic burglary." Id. at *3.

Held: "We hold that it may not, and that a later court determining the character of an admitted burglary is generally limited to examining the statutory definition, charging document, written plea agreement, transcript of the plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id. at *3.

Of Note: The Court’s endorsement of the limitations of its Taylor analysis is important, and kudos to counsel for that win. Shepard is most exciting, however, for Justice Souter’s plea for a case to reverse Almendarez-Torres. See id. at Section III, *8. Souter explained that constitutional developments since Taylor – Jones and Apprendi – create a real question of constitutional doubt as to whether the Almendarez-Torres exception to Apprendi for prior convictions remains good law. Id. AFPD Steve Sady’s "avoidance doctrine" argument is finally vindicated – Souter concludes, "The rule of reading statutes to avoid serious risks of unconstitutionality . . . therefore counsels us to limit the scope of judicial factfinding on the disputed generic character of a prior plea . . ." Id.

Four Justices concurred in the Section III, Apprendi argument: Souter, Stevens, Scalia, and Ginsberg. Justice Thomas dissented, because Section III didn’t go far enough! For Justice Thomas, there was constitutional error, not just constitutional doubt, when a prior conviction that was not proved to a jury enhanced a defendant’s sentence. Id. at *9. Count the votes – Almendarez-Torres is low fruit, ready for picking.

How to Use: Obviously, object to police reports as part of a Taylor analysis. Much more importantly, however, object to the use of any conviction which enhances a sentence, which is not proved to the jury beyond a reasonable doubt. Charges that immediately come to mind include ACCA, Section 1326 (illegal reentry), Career Offender, and mandatory minimums based on drug priors (argue that § 851 doesn’t meet Apprendi muster).

Based on Shepard, count on the Court revisiting Almendarez-Torres in the next term and start preserving the issue ASAP. The great prophets of Apprendi – Tim Crooks, Quin Denvir, Tim Crooks, Henry Bemporad, and Paul Raskind – have been after us to bring these challenges for years. Take their advice.

Anticipate the government alleging prior convictions in all indictments – which brings up our old surplusage and Buckland separation-of-powers, judicial rewriting of statutes arguments. Everything old is new again – change the headings on our old Apprendi motions, and remount new attacks, led by our Shepard.

For Further Reading: There will be much discussion of Shepard. Professor Berman reliably is one of the first commentators; his thoughtful discussion can be found here.

Steven Kalar, Senior Litigator, N.D. Cal. Fed. P.D.


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