Wednesday, September 07, 2005

Thompson: the Fourth Circuit demonstrates the need for reinterpretation of the ACCA under the doctrine of constitutional doubt

In Thompson, the Fourth Circuit split on the constitutionality of the Armed Career Criminal Act, leaving open the gaping question of whether, as a matter of statutory construction, the ACCA must be interpreted to require indictment and proof beyond a reasonable doubt on the facts necessary to increase the statutory maximum for weapons possession from ten years to life without parole. The opinion provides a wonderful illustration of the serious constitutional doubt regarding the need for formal pleading and proof of the characteristics rendering prior convictions predicates under the ACCA: the sequence of prior crimes and the facts making them "violent felon[ies]" or "serious drug offense[s]."

Mr. Thompson pleaded guilty in a colloquy during which the maximum of 15 years to life was left to future rulings by the sentencing judge. The defendant objected to an increase of the statutory maximum of ten years for being a felon in possession of a firearm because, under the Fifth Amendment, the indictment did not include allegations that his prior convictions constituted violent felonies and that they occurred on occasions different from one another, as required for the ACCA. Similarly, he claimed the Sixth Amendment precluded findings of those requisites for ACCA treatment without an admission or proof to a jury beyond a reasonable doubt.

To understand the Fourth Circuit’s split, we need to understand the history of Almendarez-Torres, the immigration case that provides the basis for the exception to Apprendi and Blakely for the fact of a prior conviction. In Almendarez-Torres, the Court narrowly found that the fact of a prior conviction, which had been repeatedly admitted during the plea colloquy, was a sentencing factor, not an element, and did not have to be charged in the indictment. The Court's decision rested in part on concern that juries would learn of the alien's prior conviction, a consideration that the Court noted did not apply to felon-in-possession prosecutions. Shortly after the 5-4 decision in Almendarez-Torres, Justice Thomas announced in Apprendi that his vote in Almendarez-Torres was in error. In two subsequent cases (Haley and Shepard), the Supreme Court expressly applied the doctrine of constitutional avoidance to construe statutes to avoid deciding whether to overrule Almendarez-Torres (as blogged here and here).

Because the ACCA does not set out how prior convictions and their characteristics and sequence are to be pleaded and proven, the courts do not need to reach the constitutionality of the extension of Almendarez-Torres to the ACCA. Rather, evolving Fifth and Sixth Amendment doctrine from the Supreme Court has created the serious constitutional doubts that require re-interpretation of the ACCA to avoid the constitutional questions. As blogged here and briefed here, the Supreme Court’s constitutional avoidance doctrine adds a step in the analysis that courts -- including Thompson -- have been skipping. Properly interpreted, the ACCA requires formal pleading and proof of the factors that increase the statutory maximum.

So we get to Judge Wilkinson for the majority and Chief Judge Wilkins's dissent. At the most basic level, the simple existence of Chief Judge Wilkins’s dissent establishes that serious doubts exist that are sufficient to trigger the doctrine of constitutional avoidance. He goes straight to the constitutional merits and finds for the defendant. The reason the dissent makes more sense than the majority involves some fine points.

First, with no mention of Apprendi’s statements that Almendarez-Torres was "at best an exceptional departure" based on "unique facts," Judge Wilkinson’s majority opinion characterizes Blakely and Shepard as "refusing to overturn" and "explicitly affirm[ing] the prior conviction exception." This is just wrong. The Supreme Court only resolves issues before it (Texas v. Cobb)("Constitutional rights are not defined by inferences from opinions which did not address the question at issue."). Blakely did not involve prior convictions and specifically and repeatedly reaffirmed Apprendi, with its instruction to narrowly limit Almendarez-Torres. And Shepard also did not involve the validity of Almendarez-Torres. Although the NACDL in an amicus brief attempted to raise the issue, the Court did not rule on that question (Lopez v. Davis, footnote 6, issue raised only by amicus not before the Court). As Justice Thomas stated in his concurrence: "The parties do not request it here, but in an appropriate case, this Court should consider Almendarez-Torres’ continuing viability." The Thompson majority bases its opinion on misinterpretation of Blakely and Shepard.

This leads to a second interesting point: Judge Wilkinson claims in footnote 3 that Shepard is a constitutional case, not – as Chief Judge Wilkins argues in dissent – a case of statutory interpretation. In the Supreme Court’s most recent explication of the doctrine of constitutional avoidance, Justice Scalia, writing for the majority in Clark v. Martinez, takes the dissent to task for characterizing the decision as a constitutional one. Under Martinez and Shepard, the Court’s decision to avoid the constitutional question does just that: the constitutional question is not decided because the statutory construction renders such a decision moot.

Which leads to a third point. In footnote 3, the majority purports to count Justices as favoring the Almendarez-Torres rule. On the contrary, as Justice Thomas pointed out in his Shepard concurrence, "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided." And Thompson ignores Haley. Between Haley and Shepard, every Justice has found that the continuing viability of Almendarez-Torres raises a serious constitutional doubt sufficient to invoke the doctrine of constitutional avoidance (except Justice Kennedy, who dissented for other – and excellent – reasons in Haley)(count the votes in paragraph 8 of this blog).

By ignoring Apprendi’s cautionary language to limit the scope of Almendarez-Torres, the Thompson majority fails to recognize that application of that case to the ACCA requires its extension, not just its direct application. The Supreme Court in Haley recognized that the sequence of prior convictions constituted an extension of Almendarez-Torres (to be avoided by statutory construction if possible). Similarly, the ACCA’s requirement that the predicate crimes occur on different occasions, as well as the characteristics of specific type of offenses, go beyond the immigration statute holding of Almendarez-Torres. Instead of recognizing the significant statutory differences, the Thompson majority tries to shoehorn those distinct statutory factors into the fact of a prior conviction. This approach finds no support in the relevant statutes or the Supreme Court’s decisions in this area.

Then we get to the Fifth Amendment question. The majority claims the Fifth and Sixth Amendment claims are coextensive. Not so. If the statute or Constitution requires that factors be alleged in the indictment, and no such allegations are found and no such rights are waived, the crime has not been charged and the increased punishment is not available, regardless what happens at trial or at the plea colloquy. The Fifth Amendment’s interposition of the grand jury between the defendant and the government serves interests independent of the Sixth Amendment.

Chief Judge Wilkins’s dissent follows Apprendi in recognizing that the ACCA’s requisites go beyond the "fact of a prior conviction." He notes the language of Apprendi (overlooked by the majority) requiring that the case be narrowly viewed. While recognizing that only the Supreme Court can overrule Almendarez-Torres, Chief Judge Wilkins carefully distinguishes between the fact of a prior conviction and facts about a prior conviction. The constitutional analysis results in a finding by the dissenting judge that the failure to indict and prove the additional ACCA factors violated both the Fifth and Sixth Amendment.

Several important lessons come out of Thompson. The statutory doctrine of constitutional avoidance is available to reconcile clashing views of the Fifth and Sixth Amendment in a manner favorable to our clients. We need to be consistently arguing and preserving these issues. And the work of federal defenders has been substantially increased by the need to follow daily the national post-Apprendi, post-Booker legal developments. A tip of the hat to Professor Berman for keeping us up to date – and here’s the link to his sentencing policy site if you haven’t made him a favorite yet.

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


Anonymous Anonymous said...

It further holds that, in determining factual issues such as whether the prior crimes occurred on separate dates, a court can rely on the PSR.

"The trial judge was entitled to rely upon the PSR because it bears the earmarks of derivation from Shepard-approved sources such as the indictments and statecourt judgments from his prior convictions, and, moreover, Thompson never raised the slightest objection either to the propriety of its source material or to its accuracy." Id.

Thursday, September 08, 2005 11:29:00 AM  

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