Wednesday, August 24, 2005

Weiland: ACCA statutory argument finds support in strange places

In a case mostly about other issues, the Ninth Circuit briefly addressed a claim that the Armed Career Criminal Act is constitutionally infirm under the Sixth Amendment in United States v. Weiland (available here). The disposition of that claim needs to be sharply distinguished from a separate statutory argument that apparently was not presented. The argument is that, as a matter of statutory construction, the ACCA must be reassessed in light of the constitutional doubt that the Supreme Court in Shepard and Haley has explicitly thrown on Almendarez-Torres, requiring reassessment of previous construction of the statute. As blogged here, here, and here, the statutory re-construction of the ACCA is directly analogous to the Ninth Circuit’s en banc re-interpretation of the federal drug statutes in Buckland to avoid constitutional doubt regarding enhancements based on drug quantity.

The frontal attack on Almendarez-Torres appears to be foreclosed for the time being by the Ninth Circuit’s analogous refusal to consider the vitality of Almendarez-Torres in the context of the illegal reentry statute (Pacheco-Zepeda). The Ninth Circuit reiterated its adherence to Almendarez-Torres in Weiland by rejecting the claim, raised for the first time on appeal, that the ACCA violates the jury trial requirement of the Sixth Amendment. The court simply stated the position was foreclosed by Almendarez-Torres. As the Supreme Court reiterated in Texas v. Cobb and Justice Stevens's Booker opinion, courts only decide issues before them; therefore, Weiland’s ruling has no precedential effect on the statutory argument. However, two aspects of Weiland provide support for the statutory argument.

First, in footnote 16, which follows the brief treatment of the Sixth Amendment claim, the court noted that "recent Supreme Court jurisprudence has perhaps called into question the continuing viability of Almendarez-Torres." The court then limited its holding to a finding that the "direct application" of Almendarez-Torres could only be addressed by the Supreme Court itself. Thus, the footnote – in conjunction with Shepard and Haley – supports the serious constitutional doubts regarding Almendarez-Torres.

Second, earlier in the decision, the court found, based on Old Chief, that the trial judge abused his discretion in admitting multiple prior convictions when a single prior established the felon-in-possession offense. Although the error was harmless in Mr. Weiland’s case, the ruling helps the statutory argument. Justice Breyer’s decision in Almendarez-Torres was based in part on the theory that, if prior convictions were elements, the jury would learn about the alien’s criminal history in a § 1326 prosecution. By a "cf." citation, Justice Breyer noted that, in contrast to illegal reentry prosecutions, the jury already knows there is a prior conviction in the context of a felon-in-possession-of-a-firearm prosecution. The Weiland ruling emphasizes that, because the prior conviction is already an element, application to the ACCA involves expansion of Almendarez-Torres and, therefore, greater constitutional doubt. The ruling excluding priors illustrates the availability of stipulations and in limine rulings to prevent undue prejudice.

Weiland does not affect the availability of the argument that the doctrine of constitutional doubt should apply to statutes, such as the ACCA, that do not specify the manner of proof for prior convictions. We need to consistently assert these positions while the Supreme Court expresses doubt, but does not resolve the doubt, about its wounded decision in Almendarez-Torres.

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


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