Petition for Writ of Certiorari — Nohe Dominguez-Morales, Petitioner v. United States
Supreme Court briefJan 3, 2023
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No. ______________
In the Supreme Court of the United States
___________
Nohe Dominguez-Morales,
Petitioner,
v.
United States of America,
Respondent
___________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
___________
Taylor Wills Edwards “T.W.” Brown
Assistant Federal Public Defender
Northern District of Texas
P.O. Box 17743
819 Taylor Street, Room 9A10
Fort Worth, TX 76102
(817) 978-2753
Taylor_W_Brown@fd.org
Texas Bar No. 24087225
QUESTIONS PRESENTED
I.
The Sixth Amendment protects the right “to be informed of the
nature and cause of the accusation.” In Apprendi v. New Jersey,
this Court held that “fact[s] that increase[] the penalty for a
crime beyond the prescribed statutory maximum” were elements
that must be charged in an indictment but carved out an
exception for prior convictions. 530 U.S. 466, 490 (2000). It
rooted the general rule in common-law historical practices, see
id. at 477-83, but relied on an earlier opinion--AlmendarezTorres v. United States—to support the prior-conviction
exception, see id. at 489 (citing 523 U.S. 224, 230 (1998)).
The first question presented is:
Whether the prior-conviction exception from Almendarez-Torres
can be squared with the text of the Sixth Amendment’s Notice
Clause and the historical practices it codified.
II.
The text and history are clear. In the Founding Era and
immediately afterward, courts, prosecutors, and defendants in
England and America treated the fact of a prior conviction
necessary to satisfy a statutory recidivism enhancement as an
element of an aggravated crime to be alleged in the indictment
and proved to a jury at trial. The text of the Notice Clause
codified this common-law practice. A crime’s “nature” included
all allegations necessary to distinguish one statutory offense
from another.
The second question presented is:
Whether, in light of the historical record, Almendarez-Torres
should be overruled.
i
LIST OF PARTIES
Nohe Dominguez-Morales, petitioner on review, was the Defendant-Appellant
below. The United States of America, respondent on review, was Plaintiff-Appellee.
No party is a corporation.
RELATED PROCEEDINGS
•
United States v. Dominguez-Morales, No. 4:21-CR-220-O, U.S. District Court
for the Northern District of Texas. Judgment entered on January 7, 2022.
•
United States v. Dominguez-Morales, No. 22-10037, U.S. Court of Appeals for
the Fifth Circuit. Judgment entered on October 4, 2022.
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDING .............................................................................. ii
INDEX TO APPENDICES ........................................................................................... iv
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
RELEVANT PROVISIONS ........................................................................................... 1
STATEMENT OF THE CASE ....................................................................................... 2
A. Introduction ......................................................................................................... 2
B. Legal Framework ................................................................................................ 2
1. Almendarez-Torres v. United States ........................................................ 2
2. Apprendi v. New Jersey ............................................................................ 5
3. Post-Apprendi Developments .................................................................. 8
C. Factual and Procedural History ....................................................................... 10
REASONS FOR GRANTING THIS PETITION ......................................................... 11
I.
The prior-conviction exception from Almendarez-Torres
cannot be squared with the text and history of the Sixth
Amendment’s Notice Clause ....................................................................... 11
a. The text is clear. In 1791, a crime’s “nature” included all
allegations necessary to distinguish one statutory offense
from another ........................................................................................... 11
iii
b. The historical record is clear. During and before the
Founding Era, courts, prosecutors, and defendants in
England and America treated the fact of a prior conviction
necessary to satisfy a statutory recidivism enhancement
as an element of an aggravated crime to be alleged in the
indictment and proved to a jury at trial ................................................ 16
II.
This Court should overrule Almendarez-Torres ......................................... 25
a. Almendarez-Torres is wrong and grievously so..................................... 26
b. Almendarez-Torres depends on flawed legal premises ......................... 28
c. No substantial reliance interests justify continued
adherence to Almendarez-Torres ........................................................... 29
III.
This case is an ideal vehicle to resolve the questions
presented ...................................................................................................... 30
CONCLUSION............................................................................................................. 31
INDEX TO APPENDICES
Appendix A Judgment and Opinion of Fifth Circuit (Pet.App.a1-a2)
Appendix B Judgment and Sentence of the United States District Court for the
Northern District of Texas (Pet.App.a3-a6)
Appendix C Petitioner’s Objections to the Presentence Report (Pet.App.a7-a10)
Appendix D Sentencing Transcript (Pet.App.a11-a26)
iv
TABLE OF AUTHORITIES
Constitutional Provisions
U.S. CONST., amend. VI .......................................................................... 1, 11-12, 27, 29
Statutes
8 U.S.C. § 1326 ....................................................................................... 1, 3-4, 10, 29-30
28 U.S.C. § 1254 ............................................................................................................. 1
Act of March 2, 1799, 5 Cong. ch. 22, art. 53, 1 Stat. 667 ......................................... 22
Act of Feb. 18, 1793, 2 Cong. ch. 8, sec. 29, 1 Stat. 315 ............................................ 22
Act of Dec. 31, 1792, 2 Cong. ch. 1, sec. 26, 1 Stat. 298 ............................................ 22
Act of Sept. 1, 1789, 1 Cong. ch. 11, sec. 34, 1 Stat. 64 ............................................. 22
Colonial Records of the State of Georgia (Allen D. Candler ed. 1911 (pt. 1))........... 21
Laws of the State of New York (1808) ....................................................................... 22
Laws of Kentucky (1807) ............................................................................................ 22
Laws of the State of Delaware (1798) ........................................................................ 21
Rogues and Vagabonds Act 1783 (23 Geo. 3, c.88) .................................................... 17
Justices Commitment Act 1743 (17 Geo. 2, c.5) ........................................................ 17
Counterfeiting Coin Act 1741 (15 Geo. 2, c.28).......................................................... 18
Licensing of the Press Act 1662 (14 Cha. 2, c.33) ................................................. 16-17
Uniformity Act 1559 (1 Eliz. 1, c.2) ............................................................................ 16
Cases
New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111 (2022)........ 11-12
Ramos v. Louisiana, 140 S. Ct. 1390 (2020) ........................................................ 25, 28
v
United States v. Haymond, 139 S. Ct. 2369 (2019) ....................................................10
Janus v. AFSCME, 138 S. Ct. 2448 (2018) .......................................................... 28-29
Mathis v. United States, 136 S. Ct. 2243 (2016) ........................................................15
Harris v. Quinn, 573 U.S. 616 (2014) .........................................................................28
Alleyne v. United States, 570 U.S. 99 (2013) ........................................................ 28-29
Southern Union Co. v. United States, 567 U.S. 343 (2012) .........................................8
Oregon v. Ice, 555 U.S. 160 (2009) .................................................................... 9, 13, 28
District of Columbia v. Heller, 554 U.S. 570 (2008) ...................................................12
Cunningham v. California, 549 U.S. 270 (2007) .........................................................8
Rangel-Reyes v. United States, 126 S. Ct. 2873 (2006)........................................... 9-10
Harris v. United States, 536 U.S. 545 (2002) .............................................................13
Apprendi v. New Jersey, 530 U.S. 466 (2000) ............................................... 5-7, 26-29
Almendarez-Torres v. United States, 523 U.S. 224 (1998) ...................... 2-5, 10-11, 26
State Oil Co. v. Khan, 522 U.S. 3 (1997) ...................................................................... 9
United States v. Wells, 519 U.S. 482 (1997) ........................................................... 4, 26
United States v. Gaudin, 515 U.S. 506 (1995) ...........................................................28
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ......................................... 29
McMillan v. Pennsylvania, 477 U.S. 79 (1986) ............................................................3
Garrett v. United States, 471 U.S. 773 (1985) ........................................................ 4, 26
Hamling v. United States, 418 U.S. 87 (1974) .............................................................2
United States v. Cruikshank, 92 U.S. 542 (1875) ......................................................15
Massey v. United States, 281 F. 292 (8th Cir. 1922) ....................................................4
vi
Singer v. United States, 278 F. 415 (3d Cir. 1922) ......................................................4
United States v. Gordon, 25 F. Cas. 1371 (D.C. 1802) .............................................. 24
People v. Sickles, 51 N.E. 288 (N.Y. 1898) ...................................................................4
Smith v. Commonwealth, 14 Serg. & Rawle 69, 1826 WL 2217 (Pa. 1826) .......... 7, 26
State v. Allen, 10 N.C. 614 (1825) ...............................................................................24
Commonwealth v. Welsh, 4 Va. 57, 1817 WL 713 (1817) ................................ 7, 24, 26
People v. Youngs, 1 Cai. R. 37 (N.Y. 1803) .................................................................23
State v. David, 1 Del. Cas 252, 1800 WL 216 (Apr. 1, 1800) .................................... 24
Trial of Joseph Powell, (Nov. 30, 1814), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t18141130110&div=t18141130-110&terms=offend%20again#highlight (last visited Dec.
29, 2022) ..................................................................................................... 20-21
Trial of Michael Michael, (Feb. 17, 1802), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t1802021789&div=t18020217-89&terms=common%20utterer#highlight (last visited
Dec. 29, 2022) .............................................................................................. 19-20
Trial of John Hughes, (July 12, 1797), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t1797071264&div=t17970712-64&terms=offend%20again#highlight (last visited Dec.
29, 2022) ........................................................................................................... 21
Trial of Samuel Dring, (Sept. 10, 1788), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t17880910-129defend1003&div=t17880910-129#highlight (last visited Dec. 29, 2022) ....... 19
Trial of James Randall, (Sept. 14, 1785), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t17850914104&div=t17850914-104&terms=incorrigible%20rogue#highlight (last visited
Dec. 29, 2022) ................................................................................................... 20
Trial of Elizabeth Strong, (Oct. 16, 1751), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t17511016-48defend352&div=t17511016-48#highlight (last visited Dec. 29, 2022) 18-19, 27
vii
Dictionaries
AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828)............................. 13-14
A COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (1806) ........................ 13-14
A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792)........................ 12-16
A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785) .............................. 12, 14-16
AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (3d ed. 1726) .......................... 13
Other Sources
Quick Facts FY 2021 – Illegal Reentry Offenses, U.S. SENTENCING COMM’N,
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quickfacts/Illegal_Reentry_FY21.pdf (last visited Dec. 29, 2022)........................... 30
Stephanos Bibas, Judicial Fact-finding and Sentence Enhancements in a World of
Guilty Pleas, 110 Yale L.J. 1097 (2001) ...................................................... 8, 27
John H. Langbein, The English Criminal Trial Jury on the Eve of the French
Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY 1700-1900 14
(Antonio Padoa. Schioppa ed., 1987) ................................................................. 6
JOHN ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL CASES (15th ed. 1862) ........ 6
viii
PETITION FOR A WRIT OF CERTIORARI
Nohe Dominguez-Morales respectfully petitions for a writ of certiorari to
review the judgment and opinion of the United States Court of Appeals for the Fifth
Circuit.
OPINIONS BELOW
The Fifth Circuit’s unreported opinion is available on Westlaw’s electronic
database at 2022 WL 5101959 and reprinted at Pet.App.a1-a2.
JURISDICTION
The Court of Appeals issued its panel opinion on October 4, 2022. This Court
has jurisdiction pursuant to 28 U.S.C. § 1254(1).
RELEVANT PROVISIONS
This Petition involves a penalty provision found in 8 U.S.C. § 1326:
(b) Notwithstanding subsection (a), in the case of any alien described in such
subsection—
(1) whose removal was subsequent to a conviction for commission of
three or more misdemeanors involving drugs, crimes against the
person, or both, or a felony (other than an aggravated felony), such
alien shall be fined under Title 18, imprisoned not more than 10 years,
or both;
8 U.S.C. § 1326(b)(1). This petition also involves the Notice Clause of
the Sixth Amendment to the United States Constitution:
In all criminal prosecutions, the accused shall enjoy the right . . .
to be informed of the nature and cause of the accusation.
U.S. CONST., amend. VI.
1
STATEMENT OF THE CASE
A. Introduction
At both the district-court level and on appeal, Mr. Dominguez argued that his
indictment’s failure to allege a prior conviction necessary to satisfy a statutory
sentencing enhancement rendered his sentence unconstitutional. That claim, he
conceded, was foreclosed in the government’s favor, but he nevertheless filed a
lengthy, complex merits brief attacking the authority foreclosing his claim. In the
brief, he addressed both the original meaning of the Notice Clause, Appellant’s
Initial Brief at 12-16, United States v. Dominguez-Morales, No. 22-10037 (5th Cir.
June 1, 2022), and historical evidence of Founding Era charging practices in both
United States and England, id. at 17-27. Despite those efforts, the result was
preordained. This Court’s authority foreclosed the sole issue advanced in the
government’s favor. The government accordingly moved for summary affirmance,
and a three-judge of the Fifth Circuit Court of Appeals panel granted the motion on
October 4, 2022. Pet.App.a2
B. Legal Framework
1. Almendarez-Torres v. United States
In Almendarez-Torres v. United States, the petitioner challenged a district
court’s power to impose a statutorily enhanced sentence based on a prior conviction
never alleged in his indictment. 523 U.S. 224, 227-28 (1998) (citing Hamling v.
United States, 418 U.S. 87, 117 (1974)). The prior conviction affected the statutory
maximum, and on that basis, Mr. Almendarez argued that it was an element of an
2
aggravated offense. Id. at 225. A five-justice majority rejected the claim and
instead classified the prior conviction as a “sentencing factor.” Id. at 235. For
support, it looked to congressional intent, rather than historical practice: “We
therefore look to the statute before us and ask what Congress intended.” See id. at
228.
What is a “sentencing factor”? In McMillan v. Pennsylvania, this Court
coined the term as an antonym to “element.” 477 U.S. 79, 85-86 (1986). An
“element,” the Court explained, is a “fact necessary to constitute the crime . . .
charged,” and must be proved to a jury beyond a reasonable doubt. See id. at 84, 93.
A “sentencing factor,” by contrast, “comes into play only after the defendant has
been found guilty” for an underlying offense and may be found by a judge using the
preponderance-of-the-evidence standard. Id. at 85-86, 91-92. The practical
difference between the two was immense, but legislative caprice largely determined
which label applied. Id. at 86. So long as the “statute” in question gave “no
impression of having been tailored to permit the” challenged sentencing factor “to
be a tail which wags the dog of the substantive offense,” legislatures had wide
latitude to specify some things elements and others sentencing factors. Id. at 88.
Given this approach, the constitutionality of any sentencing scheme would
necessarily “depend on differences of degree.” Id. at 91.
The Almendarez-Torres majority applied McMillan and characterized the fact
of a prior conviction as a sentencing factor, not an element. It considered a violation
of 8 U.S.C. § 1326, see Almendarez-Torres, 523 U.S. at 226 (citing 8 U.S.C. §
3
1326(a)-(b)), and framed the distinction between sentencing factors and elements as
“normally a matter for Congress,” id. at 228. Since the outcome depended on
congressional intent, this Court “look[ed] to” § 1326’s “language, structure, subject
matter, context, and history.” Id. at 228-29 (citing United States v. Wells, 519 U.S.
482, 490-92 (1997); Garrett v. United States, 471 U.S. 773, 779 (1985)). That
analysis led a five-justice majority to conclude “that Congress intended” the priorconviction provision “to set forth a sentencing factor.” Id. at 235.
The majority briefly considered and rejected an argument premised on
historical practice. Mr. Almendarez “point[ed]” to a “‘tradition’ . . . of courts having
treated recidivism as an element of the related crime” and asked the Supreme Court
to avoid an interpretation of § 1326 that might place its constitutionality in doubt.
Id. at 246 (citing Massey v. United States, 281 F. 292, 297-98 (8th Cir. 1922); Singer
v. United States, 278 F. 415, 420 (3d Cir. 1922); People v. Sickles, 51 N.E. 288, 289
(N.Y. 1898)). The majority rejected the claim and noted that any such tradition was
neither “uniform,” “modern,” nor based “upon a federal constitutional guarantee.”
Id. at 246-47.
A dissent authored by Justice Scalia and joined by three other justices
contested this point. Justice Scalia cited a well-established tradition of treating “a
prior conviction which increases maximum punishment . . . as an element of the
offense.” Id. at 256-57 (Scalia, J., dissenting). On this basis, he and the other three
justices would have opted for an interpretation that did not create “a serious doubt
4
as to whether the statute as interpreted by the Court in the present case is
constitutional.” Id. at 265 (Scalia, J., dissenting).
2. Apprendi v. New Jersey
Justice Scalia’s concerns came to a head two years later. In Apprendi v. New
Jersey, this Court jettisoned the McMillan analysis but preserved the AlmendarezTorres result. “Any possible distinction between an ‘element’ of a felony offense and
a ‘sentencing factor,’” it explained, “was unknown to the practice of criminal
indictment, trial by jury, and judgment by court as it existed during the years
surrounding our Nation’s founding.” Apprendi v. New Jersey, 530 U.S. 466, 478
(2000). In light of this historical guidance, this Court interpreted the Sixth
Amendment to encompass a simple rule with an important exception: “Other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to the jury, and proved
beyond a reasonable doubt.” Id. at 490. This Court rooted the general rule in
common-law historical practices, see id. at 477-83, but relied on Almendarez-Torres
to support the prior-conviction exception, see id. at 487.
The general rule from Apprendi, unlike McMillan, turned on what the
Constitution “sa[id],” not what a majority of the Supreme Court thought “it ought to
mean.” Id. at 499 (Scalia, J., concurring). The Sixth Amendment rests upon a
“historical foundation . . . extend[ing] down centuries into the common law.” Id. at
477. The common-law evidence, in turn, established a “historic link between verdict
and judgment.” Id. at 482. This analysis began with the indictment’s allegations.
5
“[C]riminal proceedings were submitted to a jury after being initiated by an
indictment containing ‘all the facts and circumstances which constitute the
offence.’” Id. at 478 (quoting JOHN ARCHBOLD, PLEADING AND EVIDENCE IN CRIMINAL
CASES 44 (15th ed. 1862)). This rule served several important purposes. For one, it
“enabled” the defendant to “prepare his defence.” Id. (citing ARCHBOLD, supra, at
44). A sufficiently precise indictment would also specify “the judgment which
should be given, if the defendant be convicted.” Id. (citing ARCHBOLD, supra, at 44).
Since “substantive criminal law tended to be sanction-specific,” a jury’s guilty
verdict required the judge to impose whatever sentence the law annexed to the
offense. Id. at 479 (citing John H. Langbein, The English Criminal Trial Jury on
the Eve of the French Revolution, in THE TRIAL JURY IN ENGLAND, FRANCE, GERMANY
1700-1900 14, 36-37 (Antonio Padoa Schioppa ed., 1987)). These charging practices
“held true when indictments were issued pursuant to statute.” See id. at 480 (citing
citing ARCHBOLD, supra, at 51).
Despite that analysis, the Apprendi majority saw no need to overrule
Almendarez-Torres. Mr. Apprendi had “not contest[ed] the . . . validity” of
Almendarez-Torres, so the five-justice majority was able to sidestep its result for the
time being. See id. at 489-90. It nevertheless recognized “that a logical application
of” Apprendi’s “reasoning . . . should apply if the recidivist issue were contested.”
Id. The majority then characterized the rule from Almendarez-Torres as “arguabl[y]
. . . incorrectly decided,” id., and “at best an exceptional departure from the historic
practice” codified in the Sixth Amendment, id. at 487.
6
Justice Thomas, writing in a concurrence, would have gone further. The
“tradition of treating recidivism as an element,” he explained, “stretches back to the
earliest years of the Republic.” Id. at 507 (Thomas, J., concurring) (citing
Commonwealth v. Welsh, 4 Va. 57, 1817 WL 713 (1817); Smith v. Commonwealth,
14 Serg. & Rawle 69, 1826 WL 2217 (Pa. 1826)). Following an exhaustive survey of
opinions from the various States, Justice Thomas summarized the Nineteenth
Century authority as follows:
Numerous other cases treating the fact of a prior
conviction as an element of a crime take the same view.
They make clear, by both their holdings and their
language, that when a statute increases punishment for
some core crime based on the fact of a prior conviction, the
core crime and the fact of the prior crime come together to
create a new, aggravated crime.
Id. at 507-08 (Thomas, J., concurring). “The consequences” of this evidence on an
Apprendi exception rooted in Almendarez-Torres, Justice Thomas concluded,
“should be plain enough.” Id. at 518 (Thomas, J., concurring).
In her Apprendi dissent, Justice O’Connor responded to Justice Thomas. She
criticized his call to overrule Almendarez-Torres as “notable for its failure to discuss
any historical practice, or to cite any decisions, predating (or contemporary with)
the ratification of the Bill of Rights.” Id. at 528 (O’Connor, J., dissenting). Thenprofessor Stephanos Bibas echoed this argument in a contemporary law-review
article:
7
As for the common-law tradition, Justice Thomas cited
cases dating mostly from the 1840s through the 1890s.
Many of these cases did indeed treat aggravating facts as
elements to be charged in indictments and proved to
juries. All of his cases, however, were decided well after
the Founding, most of them fifty to one hundred years
later. To support his argument, Justice Thomas had to
point to a common-law tradition at the time of the
Founding that the Constitution enshrined. He offered no
evidence that the common law in the [E]ighteenth
[C]entury embodied the elements rule.
Stephanos Bibas, Judicial Fact-finding and Sentence Enhancements in a World of
Guilty Pleas, 110 YALE L.J. 1097, 1128 (2001).
3. Post-Apprendi Developments
Despite Justice O’Connor’s reservations, this Court has since applied
Apprendi’s methodology in multiple cases and repeatedly looked to “longstanding
common-law practice” to tease out the Sixth Amendment’s precise meaning.
Southern Union Co. v. United States, 567 U.S. 343, 348 (2012) (quoting
Cunningham v. California, 549 U.S. 270, 281 (2007)). In Southern Union Company
v. United States, this Court applied Apprendi to the issue of fines. Id. at 349.
Where the statute in question linked the maximum fine amount “to the
determination of specified facts,” such as “the value of damaged or stolen property,”
“the predominant practice” at common law “was for such facts to be alleged in the
indictment and proved to the jury.” Id. at 354-55. The “ample historical evidence”
supporting this point resolved Southern Union Company on the merits, id. at 358,
and in Oregon v. Ice, this Court conducted the same analysis but came out the other
way concerning a judge’s decision to impose consecutive, rather than concurrent,
8
terms of imprisonment, 555 U.S. 160, 168-69 (2009). “The historical record,” the
five-justice majority explained, “demonstrates that the jury played no role in the
decision to impose sentences consecutively or concurrently.” Id. at 168. Again, this
Court looked to historical practice to resolve the disputed meaning of the Sixth
Amendment. Id. at 168-69.
Justice Stevens and Justice Thomas briefly addressed whether to overrule
Almendarez-Torres in 2006. In a terse statement respecting the denial of various
petitions for certiorari, Justice Stevens indicated his belief that Almendarez-Torres
had been wrongly decided but explained that “[t]he denial of a jury trial on the
narrow issues of fact concerning a defendant’s prior conviction history . . . will
seldom create any significant risk of prejudice to the accused.” Rangel-Reyes v.
United States, 126 S. Ct. 2873, 2874 (2006). He also noted that “countless judges in
countless cases have relied on Almendarez-Torres in making sentencing
determinations.” Id. “The doctrine of stare decisis,” he concluded, “provides a
sufficient basis for the denial of certiorari in these cases.” Id. Justice Thomas
disagreed: “[T]he exception to trial by jury for establishing ‘the fact of a prior
conviction’ finds its basis not in the Constitution, but in a precedent of this Court.”
Id. (Thomas, J., dissenting from denial of certiorari). On top of that, he noted, “[t]he
Court’s duty to resolve this matter is particularly compelling, because [it] is the only
court authorized to do so.” Id. (citing State Oil Co. v. Khan, 522 U.S. 3, 20 (1997))
(Thomas, J., dissenting from denial of certiorari). Justice Thomas then noted the
stakes. The prior-conviction exception from Almendarez-Torres meant that
9
“countless criminal defendants will be denied the full protection afforded by the
Fifth and Sixth Amendments.” Id. (Thomas, J., dissenting from denial of
certiorari). “There is no good reason to allow such a state of affairs to persist.” Id.
(Thomas, J., dissenting from denial of certiorari).
Despite Justice Thomas’s concerns, the tension between Apprendi and
Almendarez-Torres persists to this day. This Court has repeatedly applied
Apprendi’s historical methodology in other Sixth Amendment contexts. It has so far
shielded Almendarez-Torres from similar analysis. As a result, the Court continues
to recognize the validity of the prior-conviction exception. See, e.g., United States v.
Haymond, 139 S. Ct. 2369, 2377 n.3 (2019) (citing Almendarez-Torres, 523 U.S. 224
(1998)).
C. Factual and Procedural History
Mr. Dominguez, an alien, recently pleaded guilty to illegally reentering the
United States following deportation. Pet.App.a3. The statute defining this
offense—8 U.S.C. § 1326(a)—sets a two-year term of imprisonment as the default
maximum, but based on a prior felony conviction, the district court applied a tenyear maximum instead. See Pet.App.a3 (citing 8 U.S.C. § 1326(b)(1)). This
alternative applies “in the case of any alien . . . whose removal was subsequent to a
conviction for . . . a felony.” 8 U.S.C. § 1326(b)(1). Mr. Dominguez objected at
sentencing and pointed out the indictment’s failure to allege the prior felony
conviction at issue. Pet.App.a7. This omission, he argued, meant the indictment
alleged only the two-year offense applicable to first-time offenders. Pet.App.a7. He
10
conceded, however, that this claim was foreclosed. Pet.App.a7 (citing AlmendarezTorres, 523 U.S. 224, at 239). The district court overruled it at sentencing,
Pet.App.a13, and imposed a 46-month term of imprisonment, Pet.App.a4. Mr.
Dominguez then advanced the same argument on appeal and again conceded that
the claim was foreclosed. Pet.App.a1-a2. Despite this concession, he advanced a
lengthy, complex attack on Almendarez-Torrez, which addressed both the original
meaning of the Notice Clause, Appellant’s Initial Brief at 12-16, United States v.
Dominguez-Morales, No. 22-10037 (5th Cir. June 1, 2022), and Founding Era
charging practices in both United States and England, id. at 17-27. Mr. Dominguez
even advanced an argument on the issue of stare decisis. Id. at 27-30. The
government moved for summary affirmance, and a three-judge panel granted the
motion on October 4, 2022. Pet.App.a2.
REASONS FOR GRANTING THIS PETITION
I.
The prior-conviction exception from AlmendarezTorres cannot be squared with the text and history of
the Sixth Amendment’s Notice Clause.
a. The text is clear. In 1791, a crime’s “nature”
included all allegations necessary to distinguish
one statutory offense from another.
“In all criminal prosecutions,” the Sixth Amendment states, “the accused
shall enjoy the right . . . to be informed of the nature and cause of the accusation.”
U.S. CONST., amend. VI. “Constitutional rights are enshrined with the scope they
were understood to have when the people adopted them,” and Founding Era
“linguistic [and] legal conventions” shed light on such meaning. New York State
11
Rifle & Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2136 (2022) (quoting District of
Columbia v. Heller, 554 U.S. 570, 634-35 (2008)). Founding Era dictionaries reveal
the prior-conviction exception from Almendarez-Torres to be atextual. A crime’s
“nature” included all allegations necessary to distinguish one statutory alternative
from another, and a prior-conviction allegation would be necessary to allow a
defendant facing a statutory recidivist enhancement to do so.
Consider first the clause in its entirety. The preposition “of” links the noun
“accusation” to the preceding nouns “nature” and “cause.” The “nature” and “cause”
therefore concern or relate to the overarching “accusation” and form its subsidiary
parts. Of, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785) (“Concerning;
relating to.”). The Notice Clause obligates the government to “inform[]” the
“accused” of all three. U.S. CONST., amend. VI.
Founding Era lexicographers typically defined the term “nature” to refer to a
thing’s distinct properties, which allowed an observer to distinguish between things
of one nature and things of another. Samuel Johnson defined the term in 1785 as
“[t]he native state or properties of any thing, by which it is discriminated from
others.” See Nature, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785).
James Barclay followed suit in 1792 and defined the noun as “a distinct species or
kind of being,” “the essential properties of a thing, or that by which it is
distinguished from all others.” Nature, A COMPLETE AND UNIVERSAL ENGLISH
DICTIONARY (2d ed. 1792). Writing in America, Noah Webster initially defined
“nature” in 1806 to denote the “sort,” “kind,” or “the native state of any thing.”
12
Nature, A COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (1806). He
expanded upon this definition in 1828 and then defined “nature” to mean a thing’s
“essential qualities or attributes.” Nature, AN AMERICAN DICTIONARY OF THE
ENGLISH LANGUAGE (1828). The phrase “nature of man,” he explained, thus
captured both “the peculiar constitution of his body or mind” and “the qualities of
the species which distinguish him from other animals.” Nature, AN AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (1828). Given these contemporary
definitions, “those who framed the Bill of Rights,” see Oregon v. Ice, 555 U.S. at 165
(quoting Harris v. United States, 536 U.S. 545, 557 (2002), would have understood
the “nature” of an “accusation” to refer to its distinctive properties.
Eighteenth Century lexicographers recognized the noun “cause” as a term of
art with a specialized legal meaning. Writing in 1726, Nathan Bailey defined the
term as “a Tryal, or an Action brought before a Judge to be Examined and
Disputed.” Cause, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (3d ed.
1726). Barclay, writing in 1792, recognized the same specialized meaning and
defined the term “[i]n a Law sense” to mean “the matter in dispute, or subject of a
law-suit.” Cause, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792).
Writing in America, Webster did not recognize a specialized meaning for the term in
1806, Cause, A COMPENDIOUS DICTIONARY OF THE ENGLISH LANGUAGE (1806), but led
with the term-of-art definition in 1828, Cause, AN AMERICAN DICTIONARY OF THE
ENGLISH LANGUAGE (1828). The noun “cause,” he wrote, meant “[a] suit or action in
court.” Cause, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828).
13
As used in the Notice Clause, the noun “accusation” incorporated both an
underlying “nature” and “cause.” Johnson defined the term “accusation” in 1785
“[i]n the sense of the courts” as “[a] declaration of some crime preferred before a
competent judge, in order to inflict some judgment on the guilty person.”
Accusation, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785). He used the
verb “prefer” to mean “[t]o offer solemnly,” “to propose publickly,” or “to exhibit.”
Prefer, A DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785). Barclay recognized
a similar definition seven years later for the term “accusation” and defined it as “the
preferring a criminal action against any one before a judge.” Accusation, A
COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792). He then defined the
verb “prefer” as “to exhibit a bill or accusation.” Prefer, A COMPLETE AND UNIVERSAL
ENGLISH DICTIONARY (2d ed. 1792). Webster’s 1806 definition for the term
“accusation” is similar to those offered by Johnson and Barclay: “a complaint” or
“charge of some crime.” Accusation, A COMPENDIOUS DICTIONARY OF THE ENGLISH
LANGUAGE (1806). Webster later expanded on this definition. An “accusation,” he
wrote, could refer to “[t]he act or charging with a crime or offense.” Accusation, AN
AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828). The word also denoted
“[t]he charge of an offense or crime; or the declaration containing the charge.”
Accusation, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828).
From these definitions, the original meaning of the Notice Clause takes
shape. The accusation necessarily incorporated “some crime,” Accusation, A
DICTIONARY OF THE ENGLISH LANGUAGE (6th ed. 1785), or “criminal action,”
14
Accusation, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792). That
crime had a nature, which constituted its “essential properties.” See, e.g., Nature, A
COMPLETE AND UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792). The nature of the
crime alleged would allow the accused to “distinguish[]” the offense charged in his
case “from all others.” See, e.g., Nature, A COMPLETE AND UNIVERSAL ENGLISH
DICTIONARY (2d ed. 1792). The term thus incorporated “the ‘constituent parts’ of”
the “crime’s legal definition,” also known as its elements. See Mathis v. United
States, 136 S. Ct. 2243, 2248 (2016) (quoting Elements, BLACK’S LAW DICTIONARY
(10th ed. 2014)). By contrast, the cause of an accusation would alert the defendant
to “the matter in dispute.” See, e.g., Cause, A COMPLETE AND UNIVERSAL ENGLISH
DICTIONARY (2d ed. 1792). At trial, the defendant could not fight about the alleged
crime’s “native state or properties,” Nature, A DICTIONARY OF THE ENGLISH
LANGUAGE (6th ed. 1785), but the real-world facts necessary to prove those elements
are always at issue. The term cause accordingly incorporated the “particulars” of
the alleged offense with respect to “time, place, and circumstances” and would put
the accused on notice of the facts the government intended to prove at trial. See
United States v. Cruikshank, 92 U.S. 542, 558 (1875).
By itself, the plain meaning of the Notice Clause—particularly the word
“nature”—strongly supports the interpretation urged by Mr. Dominguez. A
statutory enhancement premised on the fact of a prior conviction differs from the
version of the offense applicable to first-time offenders. Without a prior-conviction
allegation, the accused could not “distinguish[]” between the aggravated offense for
15
recidivists and the less serious alternative. See Nature, A COMPLETE AND
UNIVERSAL ENGLISH DICTIONARY (2d ed. 1792). The prior-conviction allegation was
necessary to allow the accused to “discriminate[]” between the potential offenses
charged in the indictment. See Nature, A DICTIONARY OF THE ENGLISH LANGUAGE
(6th ed. 1785). The historical record and Founding Era charging practices provide
further support for this interpretation of the Sixth Amendment’s text.
b. The historical record is clear. During and before
the Founding Era, courts, prosecutors, and
defendants in England and America treated the fact
of a prior conviction necessary to satisfy a
statutory recidivism enhancement as an element of
an aggravated crime to be alleged in the indictment
and proved to a jury at trial.
The Founders were no doubt familiar with statutory recidivism
enhancements. Throughout the Colonial Era, Parliament had repeatedly used
statutes to set out harsh penalties for repeat offenders. In 1559, Parliament sought
to regularize worship throughout the Church of England, and upon a “first offence,”
a recalcitrant minister could “suffer imprisonment by the space of six months.”
Uniformity Act 1159 (1 Eliz. 1, c.2). After a “second offence,” a recidivist could
“suffer imprisonment by the space of one whole year.” Uniformity Act 1559 (1 Eliz.
1, c.2). Parliament adopted the same approach roughly 100 years later when it
criminalized the printing of “seditious and treasonable Bookes[,] Pamphlets[,] and
Papers.” Licensing of the Press Act 1662 (14 Cha. 2, c.33). A first-time offender
would “be disenabled from exercising his respective Trade”—in that case, operating
a printing press—“for the space of three yeare.” Licensing of the Press Act 1662 (14
16
Cha. 2, c.33). “[F]or the second offence,” the recidivist offender “shall for ever
thence after be disabled to use or exercise the Art or Mystery of Printing or of
Founding Letters for Printing and shall alsoe have and receive such further
punishment by Fine Imprisonment or other Corporal Punishment not extending to
Life or Limb.” Licensing of the Press Act 1662 (14 Cha. 2, c.33).
Parliament continued to set enhanced penalties for recidivist offenders well
into the Founding Era. A 1783 law classified as “a rogue or vagabond” any
defendant “found in or upon any dwelling-house, warehouse, coach-house, stable, or
out-house; or in any inclosed yard, or garden, or area, belonging to any house, with
intent to steal any goods or chattels.” Rogues and Vagabonds Act 1783 (23 Geo. 3,
c.88). The same status applied to any defendant “having upon him any picklockkey, crow, jack, bit, or other implement, with an intent feloniously to break and
enter into any dwelling-house, ware-house, coach-house, stable, or outhouse” or
“any pistol, hanger, cutlass, bludgeon, or other offensive weapon, with intent
feloniously to assault any person.” 23 Geo. 3, c.88. An earlier law allowed judges to
punish those found to be rogues or vagabonds with a six-month term of
imprisonment. Justices Commitment Act 1743 (17 Geo. 2, c.5, s.9). Upon escape, a
judge could declare the defendant an “incorrigible rogue” and then impose a twoyear sentence. 17 Geo. 2, c.5, s.4. If an “incorrigible rogue” committed a second
escape or another offense resulting in rogue or vagabond status following release, he
would “be guilty of a felony.” 17 Geo. 2, c.5, s.9.
17
The Counterfeiting Coin Act of 1741 also set out harsh penalties for repeat
offenders. That statute made it a crime to “utter, or tender in payment, any false or
counterfeit money, knowing the same to be false or counterfeit, to any person or
persons,” and upon conviction, a first-time offender would “suffer six months
imprisonment.” See Counterfeiting Coin Act 1741 (15 Geo. 2, c.28, s.2). Parliament
singled out recidivists for additional punishment: “if the same person shall
afterwards be convicted a second time,” that defendant “shall, for such second
offence, suffer two years’ imprisonment.” 15 Geo. 2, c.28, s.2. A third conviction
resulted in the death penalty. 15 Geo. 2, c.28, s.2.
During the Founding Era, English prosecutors, defendants, and courts
routinely treated the fact of a prior conviction as an element of an aggravated crime.
A 1751 prosecution under the Counterfeiting Coin Act resulted in an acquittal after
the prosecutor failed to prove the fact of the prior conviction. The defendant, a
woman named Elizabeth Strong, “was indicted for being a common utterer of false
money.” Trial of Elizabeth Strong, (Oct. 16, 1751), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t17511016-48defend352&div=t17511016-48#highlight (last visited Dec. 29, 2022). To support the
charge, the indictment alleged a prior conviction for “uttering a false shilling,
at Hicks’s Hall, on” May 10, 1747. Id. The indictment went on to allege that Ms.
Strong “utter[ed] another piece of false money, in the similitude of a shilling, on”
August 1, 1751. Id. If proved, these allegations would subject Ms. Strong to a twoyear term of imprisonment, see 15 Geo. 2, c.28, s.2, but the prosecution fell apart on
18
the prior-conviction allegation. The prosecutor “produced” a “copy of the record of
her former conviction, but not being a true copy, and failing in proof of that, she was
acquitted.” Trial of Elizabeth Strong, supra, Old Bailey Proceedings Online.
The record of a 1788 prosecution demonstrates the same charging practice
and procedural safeguards. Trial of Samuel Dring, (Sept. 10, 1788), Old Bailey
Proceedings Online, https://www.oldbaileyonline.org/browse.jsp?id=t17880910-129defend1003&div=t17880910-129#highlight (last visited Dec. 29, 2022). To support
the recidivist enhancement in that case, the indictment alleged that Samuel Dring
“was tried and convicted for being a common utterer of false and counterfeit money”
on October 7, 1784. Id. The prosecutor called one witness to prove up “the record of
the prisoner’s former conviction” and another to establish his identity. Id. The
second witness testified to his presence at the defendant’s earlier trial and testified
that Mr. Dring “was tried for uttering, and confined one year.” Id.
The same practice persisted into the Nineteenth Century. In Michael
Michael’s 1802 prosecution, the indictment alleged the date and jurisdiction of the
prior conviction, at which Mr. Michael “was tried and convicted of being a common
utterer.” Trial of Michael Michael, (Feb. 17, 1802), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t18020217-89&div=t1802021789&terms=common%20utterer#highlight (last visited Dec. 29, 2022). The
prosecutor began the trial by reading into the record the prior conviction and then
called two witnesses to establish Mr. Michael’s identity as the same man named in
the earlier judgment. The first, a “clerk to the Solicitor of the Mint,” was present
19
“when the prisoner was tried” on the previous offense and identified Mr. Michael as
the same individual. Id. The next witness, a jailer, testified to bringing Mr.
Michael to the first trial and transporting him back to jail to serve a twelve-month
sentence following his conviction. Id.
Founding Era prosecutions for those alleged to be incorrigible rogues
evidence the same practice. A 1785 indictment charged James Randall with an
initial commitment “for being a rogue or vagabond” and a subsequent arrest “with a
pistol and iron crow.” Trial of James Randall, (Sept. 14, 1785), Old Bailey
Proceedings Online, https://www.oldbaileyonline.org/browse.jsp?id=t17850914104&div=t17850914-104&terms=incorrigible%20rogue#highlight (last visited Dec.
29, 2022). On those facts, the indictment alleged, he “was adjudged to be an
incorrigible rogue,” but following his commitment to “to the house of corrections for
two years,” Mr. Randall escaped. Id. These allegations put Mr. Randall at risk of a
felony conviction, and the prosecution once more began by producing “true copies” of
the “record” establishing the prior conviction. Id. From there, a witness identified
Mr. Randall as the man named in the record of conviction and testified to his
escape. Id. Another witness testified to apprehending Mr. Randall following his
first escape and attending the trial at which he earned the title incorrigible rogue.
Id. Trial records from 1797 and 1814 establish the same practice for other
defendants facing the same charge. Trial of Joseph Powell, (Nov. 30, 1814), Old
Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t18141130-110&div=t18141130-
20
110&terms=offend%20again#highlight (last visited Dec. 29, 2022); Trial of John
Hughes, (July 12, 1797), Old Bailey Proceedings Online,
https://www.oldbaileyonline.org/browse.jsp?id=t17970712-64&div=t1797071264&terms=offend%20again#highlight (last visited Dec. 29, 2022).
Colonial legislators in America followed Parliament’s example and routinely
set enhanced penalties by statute for repeat offenders. The Delaware Colony
passed a larceny statute in 1751. Laws of the State of Delaware 296-98 (1798). A
first-time offender could suffer no more than 21 lashes “at the public whipping
post.” Id. at 296. The statute then singled out recidivists for additional
punishment. “[I]f any such person or persons shall be duly convicted of such offence
as aforesaid, a second time,” the law stated, the recidivist “shall . . . be whipped at
the public whipping-post of the county with any number of lashes not exceeding
[31], and shall stand in the pillory for the space of two hours.” Id. at 297. In similar
fashion, the Georgia Colony passed a law in 1765 to regulate the sale or distribution
of “strong liquors,” “Spirituous Liquors,” or “beer” to “any slave.” 19 Colonial
Records of the State of Georgia 79 (Allen D. Candler ed. 1911 (pt. 1)). “[F]or the
first offense,” the law specified, “every person so offending shall forfeit a sum not
exceeding five pounds sterling.” Id. A “second Offence” carried more severe
penalties: the forfeiture of ten pounds sterling and a three-month term of
imprisonment. Id.
Congress and state legislatures carried on the same tradition throughout the
Founding Era. The First Congress saw fit to regulate coastal trade, and to ensure
21
compliance with the new regulations, criminalized the willful neglect or refusal to
perform acts required by the new statute. Act of Sept. 1, 1789, 1 Cong. ch. 11, sec.
34, 1 Stat. 64-65. “[O]n being duly convicted thereof,” the Act specified, a first-time
offender would “forfeit the sum of five hundred dollars.” Act of Sept. 1, 1789, supra,
1 Stat. 65. A recidivist, by contrast, would forfeit “a like sum for the second offence
and shall from thence forward be rendered incapable of holding any office of trust or
profit under the United States.” Act of Sept. 1, 1789, supra, 1 Stat. 65. The Second
Congress adopted similar language in a pair of statutes criminalizing the failure to
carry out other duties involving coastal trade. Act of Feb. 18, 1793, 2 Cong. ch. 8,
sec. 29, 1 Stat. 315-16; Act of Dec. 31, 1792, 2 Cong. ch. 1, sec. 26, 1 Stat. 298. In
1799, the Fifth Congress followed suit for those entrusted to inspect cargo in the
new Nation’s ports. Act of March 2, 1799, 5 Cong. ch. 22, art. 53, 1 Stat. 667. In
each instance, Congress set a maximum fine for first-time offenders but specified
disqualification as an enhanced punishment for recidivists. See Act of March 2,
1799, supra, 1 Stat. 667; Act of Feb. 18, 1793, supra, 1 Stat. 315-16; Act of Dec. 31,
1792, supra, 1 Stat. 298. As for the States, Kentucky passed a law in 1801
punishing first-time pig thieves with up to a twelve-month term of imprisonment. 2
Laws of Kentucky 150 (1807). A recidivist, by contrast, could serve no less than six
months and up to three years. Id. The State of New York passed a grand-larceny
law seven years later subjecting repeat offenders to life in prison. 5 Laws of the
State of New York 338-39 (1808).
22
Like their English counterparts, Founding Era prosecutors, defendants, and
courts in the United States routinely treated the fact of a prior conviction necessary
to support an enhanced sentence as an element of an aggravated crime to be
charged in the indictment and proved at trial to a jury. In People v. Youngs, the
Supreme Court of New York considered a grand-larceny statue passed in 1801 and
held that the enhanced punishment could not be imposed without the priorconviction allegation. 1 Cai. 37, 37 (N.Y. Sup. Ct. 1803). There, an indictment
charged the defendant with grand larceny, and upon a second conviction, a statute
required “imprisonment for life.” Id. The indictment “did not,” however, “set forth
the record of the former conviction.” Id. The defendant objected when the
government asked the trial court to impose a life sentence following his conviction.
Id. at 39. “[T]he method heretofore adopted,” he argued, “has been to make the first
offence a charge in the indictment for the second.” Id. “It is necessary,” he
continued, “that the previous offence should be made a substantive charge in the
indictment for a second, where the punishment is augmented by the repetition,
because the repetition is the crime.” Id. at 41. This was true, he concluded, because
“the nature of the crime is changed by a superadded fact,” and the defendant,
“therefore, must have an opportunity to traverse” the allegation. Id. The Supreme
Court of New York adopted the defendant’s position and sustained his objection:
“In cases . . . where the first offence forms an ingredient in the second, and becomes
a part of it, such first offence is invariably set forth in the indictment for the
second.” Id. at 42.
23
Opinions from elsewhere in the United States establish the same procedural
safeguard. A slave prosecuted in 1800 under Delaware’s larceny statute avoided
time in the pillory, a punishment set for repeat offenders, because his indictment
did not allege the crime “as a second offense.” State v. David, 1 Del. Cas 252, 1800
WL 216, at *1 (Apr. 1, 1800). In 1802, the Circuit Court for the District of Columbia
chided prosecutors for charging a second offense “before the defendant was
convicted of a first.” United States v. Gordon, 25 F. Cas. 1371, 1371 (D.C. 1802).
Evidence of the same practice appears in opinions from Virginia and North Carolina
issued in 1817, Commonwealth v. Welsh, 4 Va. 57, 58, 1817 WL 713 (1817), and
1825, State v. Allen, 10 N.C. 614, 614 (1825), respectively.
The text and history thus point in the same direction. The earliest American
authority and pre-Founding Era authority from England reveal a consistent
historical practice of treating a prior conviction necessary to support a statutorily
enhanced sentence as an element, which distinguished the aggravated recidivist
offense from the lesser crime applicable to first-time offenders. Prosecutors charged
the prior conviction in the indictment and put on evidence at trial to secure a
conviction. Contemporary dictionaries confirm that the Framers used the text of
the Notice Clause to incorporate this common-law practice into the Constitution,
but despite their force, Almendarez-Torres forecloses these claims in the
government’s favor. There are nevertheless good reasons to raise the issue here.
The nature of the error at the heart of Almendarez-Torres weighs strongly in favor
24
of its overruling. On top of that, Almendarez-Torres is egregiously wrong as to both
methodology and result
II.
This Court should overrule Almendarez-Torres.
At the district court and Fifth Circuit, Mr. Dominguez argued against the
application of a statutorily enhanced sentence based on the fact of a prior conviction
and faulted the government for failing to allege the prior conviction in his
indictment. As it stands, the prior-conviction exception recognized in Apprendi and
rooted in Almendarez-Torres foreclosed that dispute in the government’s favor. This
Court should change that. Despite multiple decisions applying a historical and
textual analysis to tease out the precise meaning of the Sixth Amendment in other
contexts, this Court has not yet tested the result from Almendarez-Torres against
the common law. That reticence is puzzling. Almendarez-Torres is out of line with
Founding Era charging practices and the plain meaning of the Sixth Amendment.
To make matters worse, Almendarez-Torres depends on overruled authority and
flawed legal premises, and no substantial reliance interests justify its continued
existence. In short, Almendarez-Torres is an ahistorical and atextual blight on this
Nation’s Sixth Amendment jurisprudence. It should be overruled.
a. Almendarez-Torres is wrong and grievously so.
Begin with the obvious—Almendarez-Torres is “egregiously wrong” as to both
methodology and result. See Ramos v. Louisiana, 140 S. Ct. 1390, 1414 (2020). The
methodological point is obvious. Rather than looking to history to discern Founding
Era charging practices, the Almendarez-Torres majority focused on the statute of
conviction—8 U.S.C. § 1326—and issued an opinion based on its “language,
25
structure, subject matter, context, and history.” 523 U.S. at 228-29 (citing Wells,
519 U.S. at 490-92; Garrett, 471 U.S. at 779). That approach may well have allowed
the majority to discern congressional intent regarding the elements-versussentencing-factors split, but just two years later, this Court abandoned that
framework entirely and did so because “[a]ny possible distinction between an
‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of
criminal indictment, trial by jury, and judgment by court as it existed during the
years surrounding our Nation’s founding.” Apprendi, 530 U.S. at 478.
Bad methodology leads to bad results. Despite Apprendi’s historical
approach, this Court has not yet tested the prior-conviction exception against
common-law practices. The “best” it could do in Apprendi was to characterize
Almendarez-Torres as “an exceptional departure from the historic practice” guiding
its newly minted Sixth Amendment analysis. See id. at 487. Looking ahead,
Justice Thomas established in his Apprendi concurrence a “tradition of treating
recidivism as an element” that “stretches back to the earliest years of the Republic.”
Id. at 507 (Thomas, J., concurring) (citing Welsh, 4 Va. 57, 1817 WL 713 (1817);
Smith, 14 Serg. & Rawle 69, 1826 WL 2217 (Pa. 1826)). The textual and historical
evidence in this petition goes even further.
The same evidence provides persuasive answers to critiques of Justice
Thomas’s Apprendi concurrence. Responding in dissent, Justice O’Connor attacked
Justice Thomas’s position and classified it as “notable for its failure to discuss any
historical practice, or to cite any decisions, predating (or contemporary with) the
26
ratification of the Bill of Rights.” Apprendi, 530 U.S. at 528 (O’Connor, J.,
dissenting). Then-professor Stephanos Bibas echoed this argument in a 2001 lawreview article. Bibas, supra, 110 Yale L.J. at 1128. In his Apprendi concurrence,
Justice Thomas responded to Justice O’Connor by noting her failure to prove her
own conclusion, rather than taking issue with his. “[T]he very idea of a sentencing
enhancement was foreign to the common law of the time of the founding,” Justice
Thomas noted, and since Justice O’Connor conceded this point in her dissent, she
could not credibly “contend that any history from the founding supports her
position.” Apprendi, 530 U.S. at 502 n.2 (Thomas, J., concurring). In fact, the
textual and historical evidence cuts the other way.
The time has come for this Court to consider that evidence. Founding Era
appellate authority from the United States and Eighteenth Century trial records
from England establish a consistent tradition of alleging a prior conviction as an
element of an aggravated offense aimed at recidivist offenders. The parties tested
this allegation like any other, and if proof of the prior conviction failed, the jury
acquitted the defendant. See Trial of Elizabeth Strong, supra, (Oct. 16, 1751). The
earliest trial record to establish this practice is from 1751. The practice extended
well into the Founding Era in both the United States and England. Were that not
enough, the Founders codified the common-law approach by obligating the
government to inform the defendant of “the nature and cause of the accusation.”
U.S. CONST., amend. VI. Almendarez-Torres skirted the text of the Sixth
27
Amendment and the practices it incorporated. The result is a prior-conviction
exception that is not just wrong but “egregiously” so. See Ramos, 140 S. Ct. at 1414
b. Almendarez-Torres depends on flawed legal
premises.
Until the Court tests Almendarez-Torres against the historical record, the
prior-conviction exception will remain a bizarre “outlier” in this Nation’s Sixth
Amendment authority. See Janus v. AFSCME, 138 S. Ct. 2448, 2482-83 (2018)
(citing United States v. Gaudin, 515 U.S. 506, 521 (1995)). In Apprendi, this Court
moored its interpretation of the Sixth Amendment to what the Constitution “says,”
rather than what a majority of the Court “think[s] it ought to mean.” Apprendi, 530
U.S. at 499 (Scalia, J., concurring). It did so by looking to history, id. at 478, and in
the two decades since, Apprendi’s historical analysis “has become . . . firmly rooted
in the Court’s Sixth Amendment jurisprudence,” see Alleyne v. United States, 570
U.S. 99, 120 (2013) (Sotomayor, J., concurring). Almendarez-Torres presents an
“anomaly.” See Janus, 138 S. Ct. at 2483 (quoting Harris v. Quinn, 573 U.S. 616,
627 (2014)). In all other contexts, the meaning of the Sixth Amendment depends on
historical practices at common law. See, e.g., Ice, 555 U.S. at 168-69. For the fact of
a prior conviction, however, this Court remains handcuffed to an opinion that never
seriously considered historical practice at all. Apprendi, 530 U.S. at 489-90. The
“underpinnings” that support the prior-conviction exception have been seriously
“eroded,” see Janus, 138 S. Ct. at 2482-83 (quoting Gaudin, 515 U.S. at 521), and
the solution is obvious. Overruling Almendarez-Torres and finally subjecting the
prior-conviction exception to historical scrutiny would “bring a measure of greater
28
coherence to” this Court’s Sixth Amendment “law.” Id. at 2484. That step is long
past due.
c. No substantial reliance interests justify
continued adherence to Almendarez-Torres.
“[W]hen procedural rules are at issue that do not govern primary conduct and
do not implicate the reliance interests of private parties, the force of stare decisis is
reduced.” Alleyne, 570 U.S. at 119 (Sotomayor, J., concurring). In fact, “[t]he force
of stare decisis is at its nadir in cases concerning procedural rules that implicate
fundamental constitutional protections.” Id. at 116 n.5. Almendarez-Torres is the
source of a procedural rule that robs defendants like Mr. Dominguez of their right
“to be informed of the nature and cause of the accusation.” See U.S. CONST., amend.
VI. This rule results in confusion concerning the maximum term of imprisonment,
see 8 U.S.C. § 1326(a)-(b), but does not “govern primary conduct” or “implicate the
reliance interests of private parties, Alleyne, 570 U.S. at 119 (Sotomayor, J.,
concurring). In turn, “any reliance interest that the Federal Government and state
governments might have is particularly minimal here because prosecutors are
perfectly able to allege a prior conviction whenever necessary to support a recidivist
sentencing enhancement.” Id. “[I]n a case where the reliance interests are so
minimal, and the reliance interests of private parties are nonexistent, stare decisis
cannot excuse a refusal to bring ‘coherence and consistency’” id. at 121 (quoting
Patterson v. McLean Credit Union, 491 U.S. 164, 174 (1989)), to a constitutional
right, “the historical foundation” of which “extends down centuries into the common
law,” Apprendi, 530 U.S. at 477.
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III.
This case is an ideal vehicle to resolve the
questions presented.
This petition provides an excellent opportunity to reconsider and overrule
Almendarez-Torres. At the outset, the prior-conviction exception had a massive
effect in this case. Absent the prior-conviction allegation, Mr. Dominguez argued,
the district court could impose no more than a two-year term of imprisonment. See
8 U.S.C. § 1326(a). Because Almendarez-Torres foreclosed this claim in the
government’s favor, the district court instead applied a recidivist enhancement,
which ultimately resulted in a 46-month term of imprisonment. Pet.App.a4. If
Almendarez-Torres is wrong, that means Mr. Dominguez is serving a sentence
almost two years longer than the Constitution allows. His lengthy sentence also
provides this Court with sufficient time to issue an opinion before his release from
prison. Those opportunities are rare. “The average sentence for all illegal reentry
offenders was 13 months” in fiscal year 2021, the most recent year on record. Quick
Facts FY 2021 – Illegal Reentry Offenses at 1, U.S. SENTENCING COMM’N,
https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quickfacts/Illegal_Reentry_FY20.pdf (last visited Dec. 29, 2022). That means
Almendarez-Torres is effectively inapplicable in the average case, and as a result,
this Court will have few opportunities to reconsider its prior-conviction exception.
Mr. Dominguez’s petition provides that opportunity, and this Court should take it.
The Sixth Amendment’s protections either depend on common-law practices or they
do not, but until this Court tests Almendarez-Torres against the historical record,
the answer remains unclear.
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CONCLUSION
Petitioner respectfully submits that this Court should grant certiorari to
review the judgment of the United States Court of Appeals for the Fifth Circuit
Respectfully submitted January 3, 2022.
/s/ Taylor Wills Edwards “T.W.” Brown
Taylor Wills Edwards “T.W.” Brown
Assistant Federal Public Defender
Northern District of Texas
P.O. Box 17743
819 Taylor Street, Room 9A10
Fort Worth, TX 76102
(817) 978-2753
Taylor_W_Brown@fd.org
Texas Bar No. 24087225
Attorney for Petitioner
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.