United States v. Johnny E. Gatewood,defendant-Appellant

MERRITT, Circuit Judge,

dissenting.

I disagree with sections II and III of the majority opinion in this case, which allows a defendant to be sentenced to life imprisonment based on conduct that the government is unable to prove. This is a clear violation of due process.

The majority arrives at its erroneous conclusion by misapplying two recent Supreme Court decisions, Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) and Cooper v. Oklahoma, 517 U.S. 348 , 116 S.Ct. 1373 , 134 L.Ed.2d 498 (1996). In Cooper , the Supreme Court held that Oklahoma’s rule requiring that a criminal defendant prove himself competent to stand trial by clear and convincing evidence violated due process. The majority of this court contends that Cooper is inapplicable to Gatewood’s appeal because there is no constitutional mandate for trial-level constitutional protections at a sentencing hearing. While this may be true, this statement ignores Apprendi , which requires facts that would increase the defendant’s sentence beyond the statutorily prescribed maximum term to be charged as an element of the crime. Apprendi 120 S.Ct. at 2362-63 . The life imprisonment issue would then become part of the trial and the government would be required to prove this element beyond a reasonable doubt. In re Winship, 397 U.S. 358 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970).

The majority attempts to avoid the obvious consequences of the Supreme Court’s ruling in Apprendi by saying that this case is governed by Almendarez-Torres v. United States, 523 U.S. 224 , 118 S.Ct. 1219 , 140 L.Ed.2d 350 (1998). This approach fails to consider the Apprendi Court’s severe limitation of Almendarez-Torres. Apprendi, 120 S.Ct. at 2361 (“[Al mendarez-Torres ] represents at best an exceptional departure from the historic practice that we have described”). The majority restricts its analysis of the Ap-prendi’s relationship with Almendarez- *194 Torres to a cryptic “Almendarez-Torres remains the law.” While this is technically true, 1 the issue is not quite so easily dismissed. In Apprendi , the Court held that' “any fact that increases the penalty for a crime beyond the prescribed statutory minimum must be submitted to a jury, and proved beyond a reasonable doubt.” 120 S.Ct. at 2362-63 . In addition, the Court specifically adopted the language of the two concurring opinions in Jones v. United States, 526 U.S. 227 , 119 S.Ct. 1215 , 143 L.Ed.2d 311 (1999). Apprendi, 120 S.Ct. at 2363 (“we endorse the statement of the rule set forth in the concurring opinions in [Jones ]”). Those concurrences stated that “assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed ... must be established by proof beyond a reasonable doubt ... [t]o permit anything less is ... impermissible under the Due Process Clause,” Jones, 526 U.S. at 253 , 119 S.Ct. 1215 (Stevens, J., concurring) (internal citations and quotation marks omitted). See also Jones, 526 U.S. at 253 , 119 S.Ct. 1215 (Scalia, J., concurring) (“it is unconstitutional to remove from the jury the assessment of facts that alter the congressionally prescribed range of penalties to which the defendant is exposed”). Most significantly, in declining to overrule Almendarez-Toms, the Apprendi Court noted Almendarez-Torres’s “unique facts” and clearly stated that it was limited to situations where the government need only show “the fact of a prior conviction,” as is the case under 8 U.S.C. § 1326 (b)(2), the statute at issue in Almendarez-Toms (which requires only that the defendant have committed an “aggravated felony” to justify a higher sentence), Apprendi, 120 S.Ct at 2362 .

Under 18 U.S.C. § 3559 (c)(3)(A), however, in order to justify imprisonment for life, the defendant must have previously committed felonies that did not involve use (or threat of use) of a firearm or other dangerous weapon and did not result in death or serious bodily injury to any person. As is shown by Gatewood’s own situation, proving the facts necessary for life imprisonment under § 3559 requires significantly more effort than merely proving the existence of a previous conviction — the circumstance to which Almendarez-Torres was limited by the Court. The reasons for that limitation are well demonstrated by Gatewood’s appeal where the government cannot prove that Gatewood’s prior convictions are not “[njonqualifying felonies” as set forth in 18 U.S.C. § 3559 (c)(3)(A). No one has shown that the defendant was willing to injure seriously anyone in the past by either actually injuring them during the course of the crime or carrying a weapon which may indicate a willingness to do so. It is only because the heavy evidentiary burden is placed on the defendant, and not the government, that Gatewood received such a severe penalty. Apprendi dictates that because the facts underlying the life sentence require proof beyond the simple fact of a prior conviction, the issue of whether the felonies meet the statutory requirements must be put to a jury and proved beyond a reasonable doubt. Consequently, the burden of proof portion of § 3559(c)(3)(A) violates due process.

Forcing the defendant to bear the clear and convincing evidence standard also violates the due process analysis set forth in Cooper . This court’s majority opinion concedes that while a sentencing hearing need not contain trial-like constitutional protections, due process requires that “the sentencing proceedings be fundamentally fair.” It is in the “fundamental fairness” analysis that Cooper is applicable to this case. Just as it is fundamentally unfair to require a defendant to stand trial when he has shown that it is more likely than not *195 (ie. by a preponderance of the evidence) that he is incompetent, Cooper, 517 U.S. at 366-67 , 116 S.Ct. 1373 , it is also fundamentally unfair to sentence a defendant to life imprisonment when he has shown that it is more likely than not that his felonies do not meet the statutory threshold for such a severe penalty. Yet this is precisely the result that the majority approves, because a defendant who is “only” able to muster a preponderance of the evidence to show that his previous convictions are “nonquali-fying felonies”will still warrant a life sentence.

The Supreme Court’s opinion in Cooper is animated by its concern for the proper allocation of the risk of error when consequences for the defendant are dire. Cooper, 517 U.S. at 364-67 , 116 S.Ct. 1373 . As I stated in my opinion in the original panel decision in this case, “[t]he risk of error incurred by the defendant [under 18 U.S.C. § 3559 ] is no less than the risk concerned in Cooper , while the cost of such an error may be even greater.” United States v. Gatewood, 184 F.3d 550, 554 (6th Cir.1999). Because the risk and cost of error for defendants are at least as high in this context as in the competency determination, the concerns underlying the Supreme Court’s decision in Cooper should inform our decision here. Essentially, this law forces certain defendants to show (by meeting an extremely exacting evidentiary threshold) why they should not be imprisoned for the rest of his life. That does not comport with the notions of fundamental fairness that underlie due process.

The clear and convincing evidence standard is intended to insure that important decisions are not entered into lightly, and that the government treads cautiously before infringing on the lives or liberties of its citizens. Cf Cruzan v. Director, Mo. Dept. of Health, 497 U.S. 261 , 110 S.Ct. 2841 , 111 L.Ed.2d 224 (1990) (upholding Missouri’s requirement of clear and convincing evidence of an incompetent’s wishes prior to the withdrawal of life-sustaining medical treatment). In this case, however, this important purpose has been turned on its head: a defendant must prove by clear and convincing evidence that he does not warrant the most severe deprivation of liberty short of death, while the government bears almost no burden at all. The burden of proof allocated under 18 U.S.C. § 3559 (c)(3)(A) thus clearly violates Coopers fundamental fairness analysis as well as Apprendi’s guidance on how sentence enhancements beyond the statutory maximum should be adjudicated. These Supreme Court decisions signal that the Court will — and should — hold that the three-strikes statute creates facts that increase the penalty much beyond the statutory maximum. The government should have to prove those facts as elements of the crime, and it may not place the burden on the defendant to prove by “clear and convincing evidence” that the defendant did not commit such a crime. Under this theory, the government must prove that Gatewood committed a federal crime — the crime charged in the indictment — and that he committed two prior crimes either with a “firearm or other dangerous weapon” or caused “death or serious bodily injury.” 18 U.S.C. § 3559 (c)(3)(A). There is no proof anywhere in this record that Gate-wood committed two prior felonies under these circumstances.

Accordingly, I dissent from the majority’s decision in this case.

. The Supreme Court did not explicitly overrule Almendarez-Tones in Apprendi as the parties did not openly contest the decision's validity. Apprendi, 120 S.Ct at 2362 . The Court repeatedly stressed the limited nature of the Almendarez-Torres exception, however. Id.