Amicus Curiae Brief — Shepard v. United States

Supreme Court. U.S

FILED

a, AUG 27 2004

No. 03-9168 OFFICE OF THT ULERK

Jn the Supreme Court of the Gnited States

REGINALD SHEPARD,

Petitioner,

Vv.

UNITED STATES,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the First Circuit

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONER

PAMELA HARRIS GREGORY L. POE*

Co-Chair, Amicus Committee ROY T. ENGLERT, JR.

National Association of MAX HUFFMAN

Criminal Defense Lawyers BRIAN M. WILLEN

1625 Eye Street, N.W. Robbins, Russell, Englert,

10th Floor Orseck & Untereiner LLP

Washington, D.C. 20006 1801] K Street, N.W.

(202) 383-5386 Suite 41]

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

Counsel for Amicus Curiae

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TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

STATEMENT .

SUMMARY OF THE ARGUMENT

Almendarez-Torres Was Wrongly Decided,

Has Been Eroded By Subsequent Cases, And

Should Be Overruled

In The Alternative, This Court Should Reverse

The First Circuit’s Overbroad Reading Of Taylor,

And Clarify That The Government Bears The

Burden Of Proving Prior Convictions Through

Reliable Evidence That Reflects Adversarial

WHEE ck ceceene

CONCLUSION

ll

TABLE OF AUTHORITIES

, Page(s)

Cases

Adarand Constructors, Inc. v. Pena,

SUS US. TIO CISGS) occsccccssestextseeeeeene -

Addington v. Texas, 441 U.S. 418 (1979) ............. 20

Agostini v. Felton, 521 U.S. 203 (1997) ............... 9

Almendarez-Torres v. United States,

343 Uae GROCUSUED 00. 040000465500500 passim

Apprendi v. New Jersey, 530 U.S. 466 (2000)....... passim

Blakely v. Washington, 124 S. Ct. 2531 (2004) ...... passim

Booth v. Maryland, 482 U.S. 496 (1987) ............. 16

Custis v. United States, 511 U.S. 485 (1994) ........ 6, 26

Daniels v. United States, 532 U.S. 374 (2001) ......... 26

Grady v. Corbin, 495 U.S. 508 (1990) ............... 16

Harris v. United States, 536 U.S. 545 (2002) ... 9, 14-15, 21

Hohn v. United States, 524 U.S. 236 (1998) ............ 9

Jones v. United States, 526 U.S. 227 (1999) ........ passim

Lawrence v. Texas, 123 §. Ct. 2472 (2003) ............ 22

McMillan v. Pennsylvania, 477 U.S. 79 (1987) ..... passim

Metro Broadcasting, Inc. v. FCC,

~ BIUS. SOT CD 2000 cececnsncdecnuaeeeee 15

Missouri v. Seibert, 124 S. Ct. 2601 (2004) ............ 8

Monge v. California, 524 U.S. 721 (1998) ............. 8

TABLE OF AUTHORITIES (Cont'd)

Page(s)

Old Chief v. United States, 519 U.S. 172 (1995) ........ 21

Oregon v. Elstad, 470 U.S. 298 (1985) .............4.. 8

Parke v. Raley, 506 U.S. 20 (1992) ............5. ee

Patterson v. McLean Credit Union,

ec een vecedcecsecesees 8

Payne v. Tennessee, 501 U.S. 808 (1991) ......... 8,9, 16

Planned Parenthood v. Casey, 505 U.S. 833 (1992) .... 16

Ring v. Arizona, 536 U.S. 584 (2002) ........... 8, 15, 16

Schriro v. Summerlin, 124 S. Ct. 2519 (2004) .......... 10

Sinclair v. United States, 279 U.S. 263 (1929) .......... 9

South Carolina v. Gathers, 490 U.S. 805 (1989) ....... 16

State Oil Co. v. Khan, 522 U.S. 3 (1997) ..........2--. g

Taylor v. United States, 495 U.S. 575 (1990) ....... passim

Townsend v. Burke, 334 U.S. 736 (1948) ............. 27

United States v. Booker, No. 04-104 ..............005. 2

United States v. Cooper, 375 F.3d 1041

Cae eb Soot acess scuacecee 27

United States ‘ Demint, 74 F.3d 876 (8th Cir. 1996) .... 25

United States v. Dixon, 509 U.S. 688 (1993)........... 15

iV

TABLE OF AUTHORITIES (Cont'd)

Page(s)

United States v. Fanfan, No. 04-105 .............00005 2

United States v. Franklin, 235 F.3d 1165

SE A 64s keened cveduecetaeeeaeceuuns 24

United States v. Gaudin, 515 U.S. 506 (1995) ........ 9,10

United States v. Green, 175 F.3d 822

SE SED du bakes Gee baad ode eueeineteee es 27

United States v. Howze, 343 F.3d 919

ok | PPP erer Tire Tri eT rir rere rire ee 25

United States v. Matthews, 312 F.3d 652

CDGM: UE $i446 ceenes cen babdsaWabennsues 19

United States vy. Palmer, 68 F.3d 52

Cs 6ekcsanhdededeewse keak eda 24

United States v. Penaranda, 375 F.3d 238

SP EE ccd cc acecuiee hans Lao deesnaeank 16

United States v. Small, 333 F.3d 425 (3d Cir. 2003) ..... 19

United States v. Tucker, 404 U.S. 443 (1972) .......... 27

United States v. Watts, 519 U.S. 148 (1997) ......... 27-28

Walton v. Arizona, 497 U.S. 639 (1990) .............. 15

Woldiger v. Ashcroft, 77 Fed. Appx. 586

Rey re rrr re or 25

Vv

TABLE OF AUTHORITIES (Cont'd)

Page(s)

Statutes -

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Us NT Ss ag Ea at oe oe ee passim

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Miscellaneous

Edward R. Becker & Aviva Orenstein, The Federal Rules

of Evidence After Sixteen Years — The Eftect of

“Plain Meaning” Jurisprudence, the Need for an

Advisory Committee on the Rules of Evidence, and

Suggestions for Selective Revision of the Rules,

60 GEO. WASH. L. REV. 857 (1992) ...... Serer 28-29

Kryon Huigens, Solving the Apprendi Puzzle,

PG i OED ib cdckéswbncbcecencseus 16-17

Colleen P. Murphy, The Use of Prior Convictians After

Apprendi, 37 U.C. DAVIS L. REV. 973, (2004) . 8, 16, 17

Deborah Young, Fact-Finding at Federal Sentencing:

Why the Guidelines Should Meet the Rules,

79 CORNELL L. REV. 299 (1994) .............. 27, 28

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS CURIAE'

The National Association of Criminal Defense Lawyers

(NACDL) is a non-profit organization with direct national

membership of over 10,000 attorneys, in addition to more than

28,000 affiliate members from all 50 States. NACDL is the

only professional bar association that represents public and

private criminal defense lawyers at the national level.

NACDL’s mission is to ensure justice and due process for

the accused; to foster the integrity, independence, and expertise

of the criminal defense profession; and to promote the proper

and fair administration of criminal justice, including issues in-

volving the interpretation and constitutionality of sentencing

provisions like the Armed Career Criminal Act. NACDL has

filed amicus curiae briefs in this Court in many cases involving

the interpretation of sentencing enhancement provisions,

including Almendarez-Torres v. United States, 523 U.S. 224

(1998), Apprendi v. New Jersey, 530 U.S. 466 (2000), and

Blakely v. Washington, 124 S. Ct. 2531 (2004). NACDL also

has briefed this Court on issues concerning the definition of the

phrase “violent felony” in ACCA, most notably in Taylor v.

United States, 495 U.S. 575 (1990).

NACDL is particularly interested in seeing the correct rule

emerge in this case, because of the current state of flux in the

federal sentencing scheme, as a result in part of the Blakely

decision. Because of the implications for criminal practice of

' The parties’ letters of consent to the filing of this brief have been lodged

with the Clerk. Under Rule 37.6 of the Rules of this Court, emicus curiae

states that no counsel for a party has written this brief in whole or in part and

that no person or entity, other than the amicus curiae, its members, or its

counsel, has made a monetary contribution to the preparation and submission

of this brief.

2

the rules that will be announced in this case, as well as the other

cases implicating Blakely that the Court will hear this Term (in-

cluding United States v. Booker, No. 04-104, and United States

v. Fanfan, No. 04-105), NACDL wishes to present to the Court

its views on behalf of its members.

STATEMENT

This Court granted certiorari to decide the degree to which

a sentencing court may inquire into the facts underlying a state-

court guilty plea to determine whether the plea was to a burglary

qualifying as a “violent felony” within that term’s meaning in

the Armed Career Criminal Act,18 U.S.C. § 924(e) (ACCA).

The Court addressed a similar question 14 years ago, stating in

part that, if “the charging paper and jury instructions actually

required the jury to find all the elements of generic burglary in

order to convict the defendant” (Taylor v. United States, 495

U.S. 575, 602 (1990) (emphasis added)), the state-court convic-

tion was for a violent felony as that term is defined by ACCA.

Here, instead of facts reflected in a jury verdict (or admitted by

petitioner), the court of appeals ordered inquiry into documents

— police reports and complaint applications — never subjected to

any testing in the adversarial process.

Three days after the June 21, 2004, grant of certiorari in this

case, this Court issued an opinion that casts even more funda-

mental doubt on the result reached by the court of appeals

below. In Blakely v. Washington, 124 S. Ct. 2531 (2004), the

Court held that “the ‘statutory maximum’ for Apprendi purposes

is the maximum sentence a judge may impose solely on the

basis of the facts reflected in the jury verdict or admitted by the

defendant.” Id. at 2537 (emphasis in original). This holding

calls into further doubt the result in Almendarez-Torres v.

United States, 523 U.S. 224 (1997). That case permits a

defendant’s prior conviction to be treated as a mere sentencing

factor outside the province of a jury. /d. at 247. This case is an

excellent vehicle for deciding whether Al/mendarez-Torres

should be overruled, as well as the Zaylor issue on which

certiorari was granted.

3

Petitioner was arrested for, was charged with, and pleaded

guilty to one count of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g). United States v. Shepard, 125

F. Supp. 2d 562, 567 (D. Mass.) (Shepard /), rev’d, 231 F.3d 56

_ (Ist Cir. 2000). At the time of his conviction, petitioner had a

criminal record that included five prior guilty pleas to violations

of Mass. Gen. L. ch. 226 §§ 16 and 18. Those sections crim-

inalized conduct that meets the Taylor definition of “generic”

burglary, but also covered other conduct — such as breaking into

vehicles and ships — that does not. See Shepard I, 125 F. Supp.

2d at 566 n.8. In each case, petitioner had “pleaded guilty to a

generally worded complaint” that did not specify what he had

burglarized. Shepard I, 125 F. Supp. 2d at 566.

After petitioner pleaded guilty, the probation office pre-

pared a pre-sentence report (PSR) containing facts relating to

his criminal history, including violations of the Massachusetts

burglary statutes. 125 F. Supp. 2d at 566. Petitioner objected

to the contents of the PSR to the extent that they recited facts

“beyond the face of the complaints and specifically, any

reference to police reports and complaint applications.” /d. at

564.

At the sentencing proceeding, the government argued that.

petitioner’s prior criminal record met the requirements for a 15-

year minimum sentence under Section 924(e)(1), because peti-

tioner had been convicted on at least three prior occasions in

Massachusetts state court after guilty pleas to burglary.

Shepard I, 125 F. Supp. 2d at 568 & n.11. The government sub-

mitted police reports and criminal complaint applications from

the prior convictions, and contended that those documents cor-

stituted evidence that petitioner had pleaded guilty on each

occasion to generic burglary, as required by ACCA and Taylor.

Id. at 569. However, the government did not submit “plea col-

loquies or plea agreements.” /bid.

The district court interpreted Taylor and other precedents

to preclude consideration of the police reports and complaint

applications. And, because “[t]he government concede[d] that

4

without the police reports or complaint applications it cannot

determine the precise conduct to which Shepard actually pled

guilty,” the court refused to impose the 15-year sentence under

Section 924(e)(1). Without the ACCA enhancement, the guide-

line range was 30-37 months. The district court exercised its

discretion to depart upward, imposing a sentence of 46 months.

Shepard I, 125 F. Supp. 2d at 572.

The court of appeals reversed, the district court on remand

again refused to consider the police reports and again sentenced

petitioner to 46 months, and the court of appeals reversed again.

United States v. Shepard, 231 F.3d 56-(ist Cir. 2000)

(Shepard II); United States v. Shepard, 181 F. Supp. 2d 14 (D.

Mass. 2002) (Shepard III), rev’d, 348 F.3d 308 (1st Cir. 2003);

United States v. Shepard, 348 F.3d 308 (1st Cir. 2003) (Shepard

IV). The court of appeals characterized the Taylor categorical

approach as resting “[p]artly” on “practical reasons of

administration.” Shepard IV, 348 F.3d at 311. The court

recognized that under TJaylor’s categorical approach “the

sentencing court can still look at the charging papers and jury

instructions,” but then said, “‘[t]he Court did not explicitly rule

out attention to other court-related documents or say just how

guilty pleas should be parsed.” Shepard IV, 348 F.3d at 312.

The court then held that petitioner’s failure to demonstrate

that the facts underlying the state-court guilty pleas vere

different from those stated in the police reports required the

district court to rely on the reports to determine the nature of the

underlying guilty plea. 348 F.3d at 314. Assuming the accura-

cy of the police reports, the court stated, “‘it is barely possible

that someone in Shepard’s position might have pled guilty, not

to the charge .iat underlay the complaint * * *, but to the

burgling of soine other venue such as a boat.” Jbid. The court

then undertook its own analysis of the evidence. It was “highly

unlikely * * * to the point of nearly impossible” that it had

happened for “most of Shepard’s predicate pleas.” Jbid.

Therefore, it was “clearly erroneous’” for the district court not

5

to find that petitioner had pleaded guilty to burgling a building

at least three times. /bid.

SUMMARY OF THE ARGUMENT

I. The existence of prior convictions is not meaningfully

distinguishable from any other factual finding necessary to

increase a defendant’s sentence beyond the otherwise applicable

maximum. Sentencing enhancements made on that basis must

therefore be authorized by a jury verdict or a defendant’s

admission. Almendarez-Torres v. United States, 523 U.S. 224

(1997), which reasons otherwise, was wrongly decided, has

been undermined by subsequent decisions of this Court, and

should now be expressly overruled.

Il. Alternatively, the holding of the First Circuit below can

in no way be squared with this Court’s unanimous decision in

Taylor, adopting a “categorical” approach to determining what

state-law crimes qualify as “burglary” under ACCA. The Court

held that the fact of conviction and the statutory definition of the

prior offense are required to determine whether the prior offense

was burglary under ACCA. Noting that some statutes defined

offenses more broadly, the Court held that a sentencing court

could look further, “in a narrow range of cases where a jury was

actually required to find all the elements of generic burglary.”

Taylor, 495 U.S. at 602.

Taylor’s categorical rule does not permit inquiry into police

reports and criminal complaint applications. Such forms of

evidence are not the products of testing in the adversarial

process and thus lack reliability. Additionally, the inquiry

required by the court of appeals placed on petitioner the burden

to prove that he did not plead guilty to certain activities, rather

than requir.ng the government to prove that he did. These errors

undermine Yaylor’s foundational principles of ease of adminis-

tration and fairness to the defendant.

6

ARGUMENT

I. Almendarez-Torres Was Wrongly Decided, Has Been

Eroded By Subsequent Cases, And Should Be Overruled

Although this case presents important issues about how

recidivism findings are made under ACCA, those issues are

subsidiary to an even more significant question about the consti-

tutionality of the statute’s application. ACCA “raises the

penalty for possession of a firearm by a felon from a maximum

of 10 years in prison to a mandatory minimum sentence of 15

years and a maximum of life in prison without parole if the

defendant ‘has three previous convictions * * * for a violent

felony or a serious drug offense.’” Custis v. United States, 511

U.S. 485, 487 (1994) (quoting 18 U.S.C. § 924(e)). The

determination that the defendant has the convictions necessary

to trigger application of the increased sentence is made by a

federal judge, not by a jury.

~ Based on petitioner’s plea of guilty to being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1), he

faced a maximum sentence of ten years. He did not admit (and

has never admitted) committing three or more “violent

felonies,” as that term is defined in ACCA. Yet, if the First

Circuit’s decision is upheld and petitioner is sentenced based on

a factual finding, which he contests, about the nature of his prior

convictions, he will face a minimum sentence of 15 years (and

a possibility of life in prison). If applied here, ACCA would

therefore require the sentencing judge to impose “a sentence

greater than the maximum [s]he could have imposed * * *

without the challenged factual finding.” Blakely, 124 S. Ct. at

2537. In any other context, such a sentence would plainly

violate the Sixth Amendment, which forbids judges from impos-

ing punishment beyond the range authorized “solely on the basis

of the facts reflected in the jury verdict or admitted by the defen-

dant.” Ibid. (emphasis in original).

The judicial factfinding at issue here, however, concerns

recidivism. Under current law, that makes all the difference. In

7

Almendarez-Torres v. United States, 523 U.S. 224 (1997), the

Court discerned no constitutional problem with a federal statute

that allowed a defendant’s sentence to be increased from a

maximum of two years to a maximum of 20 based on a fact —

that the defendant had a prior aggravated felony conviction —

that had not been charged in the indictment.’ And, although the

Court’s subsequent decision in Apprendi v. New Jersey, 530

U.S. 466, cast significant doubt on both the reasoning and the

result of Almendarez-Torres, Apprendi does purport to exempt

“the fact ofa prior conviction” from its otherwise-universal rule

that any fact that “increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” 530 U.S. at 490.

It is thus clear that, but for A/mendarez-Torres and the cor-

responding exception to the Apprendi rule, the conclusion

reached by the court of appeals in this case — that “the district

court must sentence Shepard under [ACCA] and apply the

mandatory minimum prescribed by Congress” (Shepard IV, 348

F.3d at 314-315) — would be unconstitutional. Accordingly, the

present case provides a timely opportunity for this Court to

revisit Almendarez-Torres. By overruling Almendarez-Torres

and eliminating the ill-fitting recidivism exception to Apprendi,

the Court would keep faith with the animating principle of its

more recent decisions: that every fact authorizing additional

punishment against a criminal defendant must have been either

found by a jury or admitted by the defendant. See Blakely, 124

S. Ct. at 2537; Apprendi, 530 U.S. at 490. Exempting

recidivism findings from that bedrock rule is supported neither

by logic nor by experience. Indeed, it is supported only by

> The petitioner in Almendarez-Torres admitted, in the course of pleading

guilty to violating 8 U.S.C. § 1326, that he had been deported “pursuant to”

three earlier felony convictions. See Almendarez-Torres, 523 U.S. at 227.

It was thus undisputed that he had actually been convicted of the crime that

triggered the sentencing enhancement, so the only constitutional issue

discussed by the Court was whether the fact of those prior convictions had

to be presented in the indictment.

8

Almendarez-Torres itself, a decision whose assumptions and

reasoning were problematic from the start and have been fatally

undermined by subsequent cases. See Monge v California, 524

U.S. 721, 741 (1998) (Scalia, J., dissenting) (describing

Almendarez-Torres as ‘‘a grave constitutional error affecting the

most fundamental of rights”).’

A. Despite the indisputable importance of stare decisis,

when the “necessity and propriety” of overruling prior decisions

have been established, the Court has not hesitated to act. Ring

v. Arizona, 536 U.S. 584 (2002) (quoting Patterson v. McLean

Credit Union, 491 U.S. 164, 172 (1989)). Stare decisis, after

all, is not an “inexorable command,” Payne v. Tennessee, 501

U.S. 808, 828 (1991), but instead reflects “a policy judgment

that in most matters it is more important that the applicable rule

of law be settled than that it be settled right.” State Oil Co. v.

Khan, 522 U.S. 3, 20 (1997) (internal quotation omitted). Stare

> Because the constitutional claim in Almendarez-Torres concerned only no-

tice (i.e. whether the “act of prior conviction must be charged in the indict-

ment), the case could be limited to its facts, as having not definitively re-

solved whether recidivism findings may properly be made by a judge under

something less than a reasonable doubt standard. See Colleen P. Murphy,

The Use of Prior Convictions After Apprendi, 37 U.C. DAVIS L. REV. 973,

994 (2004) (noting that “neither A/mendarez-Torres nor Apprendi answered

whether the Constitution requires a jury trial and proof beyond a reasonable

doubt on the existence of a prior conviction”); cf. Missouri v. Seibert, 124

S. Ct. 2601 (2004) (limiting reach of Oregon v. Elstad, 470 U.S. 298 (1985)).

Moreover, as the Court noted in Apprendi, the defendant in Almendarez-

Torres had actually admitted the prior convictions, so his case raised “no

question concerning the right to a jury trial or the standard of proof that

would apply to a contested issue of fact.” 530 U.S. at 488; see also Jones,

526 U.S. 227, 248-249 (2002). Almendarez-Torres thus could be read to

stand only for the propositions that recidivism need not be alleged in the

indictment and that a recidivism charge may support a sentencing

enhancement when the defendant admits that he was convicted o: the prior

offenses on which the increased sentence is based. That approach would be

consistent with Blakely’s core holding that, “[wJhen a defendant pleads

guilty, the State is free to seek judicial sentence enhancements so Jong as the

defendant either stipulates to the relevant facts or consents to judicial fact-

finding.” 124 S. Ct. at 2541 (emphasis added).

9

decisis is of course far weaker in constitutional cases than in

statutory cases, see Payne, 501 U.S. at 828, and this case arises

in a particular area of constitutional law in which there is

especially strong reason to reconsider an incorrect precedent.

See Harris v. United States, 536 U.S. 545, 572 (2002)

(Thomas, J., dissenting) (“[C]onsiderations of stare decisis are

at their nadir in cases involving procedural rules implicating

fundamental constitutional protections afforded criminal

defendants.’’).

For stare decisis purposes, Almendarez-Torres is perhaps

most analogous to Sinclair v. United States, 279 U.S. 263

(1929). Sinclair held that a particular determination on which

the defendants’ punishment was conditioned — the “pertinency”

element of a criminal contempt statute — need not be found by

the jury, but could instead be submitted to and decided by the

judge. Jd. at 298. In United States v. Gaudin, 515 U.S. 506

(1995), this Court faced a very similar question: whether the

Fifth and Sixth Amendments require that the “materiality”

element of 18 U.S.C. § 1001 be found by the jury beyond a

reasonable doubt. Concluding that the Constitution did so

require, the Court overruled Sinclair. See id. at 519-522. The

Court identified three considerations that compelled its decision

to do so.

First, the force of stare decisis was reduced because the

question whether a particular fact is properly decided by a judge

or a jury involves a “procedural rule * * * which does not serve

as a guide to lawful behavior.” 515 U.S. at 521; see also Hohn

v. United States, 524 U.S. 236, 251-252 (1998). Second, the

Court’s conclusion that the jury must decide the elements of the

offense “rests upon an interpretation of the Constitution.” 515

U.S. at 521. Finally, “stare decisis cannot possibly be control-

ling when, in addition to those factors, the decision in question

has been proved manifestly erroneous, and its underpinnings

eroded, by subsequent decisions of this Court.” Jbid.; see also

Agostini v. Felton, 521 U.S. 203, 235-236 (1997).

10

B. The case for overruling Almendarez-Torres is, if any-

thing, stronger than was the case for dispatching with Sinclair.

In holding that the Sixth Amendment does not require the fact

of prior convictions — even those that increase the range of pun-

ishment to which the defendant is subject — to be alleged in the

indictment, Almendarez-Torres articulated a procedural rule

grounded in the Constitution. This is so even if that rule is

understood to apply beyond the context of indictments, to al'ow

recidivism findings to be made by judges rather than juries. See

Gaudin, 515 U.S. at 521; see also Schriro v. Summerlin, 124

S. Ct. 2519, 2523 (2004) (“Rules that allocate decisionmaking

authority in this fashion are prototypical procedural rules, a

conclusion we have reached in numerous other contexts.”).

Moreover, and more important, A/mendarez-Torres is per-

haps the paradigm of a decision that not only was wrong when

it was decided, but also has been significantly undermined by

later cases. Indeed, Sixth Amendment law has been upended

since Almendarez-Torres pronounced it “absolutely clear” that

it was wrong to suggest that “Congress cannot permit judges to

increase a sentence in light of recidivism, or any other factor,

not set forth in an indictment and proved to a jury beyond a

reasonable doubt.” 523 U.S. at 240 (emphasis added). That

dramatic transformation began almost immediately after

Almendarez-Torres was decided.

1. In Jones v. United States, 526 U.S. 227 (1999), the

Court examined the same body of law as Almendarez-Torres,

yet reached a very different conclusion. Whereas the Court in

Almendarez-Torres discerned no general rule that facts increas-

ing the maximum penalty to which the defendant is exposed

raise Sixth Amendment concerns, the Court in Jones suggested

just such a principle. 526 U.S. at 243 n.6. Whereas the Court

in Almendarez-Torres discerned no constitutional norm strong

enough to convert a recidivism finding that increased the

maximum penalty into an element of 8 U.S.C. § 1326, the Court

in Jones determined that serious Sixth Amendment concerns

compelled it to read a provision increasing the sentence for

1]

carjacking under 18 U.S.C. § 2119 as an element of the offense.

526 U.S. at 239-252. Jones canvassed history, at which A/men-

darez-Torres had barely glanced, and ascertained that the

Framers put the protection of the jury from the encroachment of

judicial factfinding at the heart of the jury-trial right. See id. at

244-248. And, although Jones distinguished Almendarez-

Torres, it did so with some equivocation, narrowly describing

it as a case primarily about the “possible constitutional

distinctiveness” of recidivism. Jd. at 248-249 & n.10.

2. Amore serious blow came the next Term in Apprendi.

Apprendi confirmed the general Sixth Amendment rule at which

Jones had hinted: that facts increasing the quantum of punish-

ment that a defendant faces must be found by jury beyond a

reasonable doubt. See 530 U.S. at 490. Although Apprendi did

not overrule Almendarez-Torres, the Court made no secret that

it was retreating from the broader constitutional foundations of

that decision, describing it as “at best an exceptional departure

from the historic practice that we have described.” 530 U.S. at

487. The Court explained that “it is arguable that A/mendarez-

Torres was incorrectly decided and that a logical application of

our reasoning today should apply if the recidivist issue were

contested.” Jd. at 489-490.

Apprendi thus recognized that A/mendarez-Torres’s recidi-

vism holding fit uncomfortably with the Court’s clarified under-

standing of the Sixth Amendment. Indeed, along with its cita-

tion to Justice Scalia’s dissent in Almendarez-Torres, Apprendi

offered a criticism of its own: “the Court’s extensive discussion

of the term ‘sentencing factor’ virtually ignored the pedigree of

the pleading requirement at issue” — a requirement that every

allegation legally essential to the punishment be charged and

proven to the jury. 530 U.S. at 490 n.15. This point is elaborat-

ed in Justice Thomas’s separate opinion, which makes clear that

the common law pleading requirement invoked by the Court did

not distinguish between the fact of a prior conviction and any

other fact that “was by law a basis for imposing or increasing

punishment.” /d. at 512 (Thomas, J., concurring). The Court

12

in Apprendi thus went out of its way to highlight the analytic

mistakes that informed the result in A/mendarez-Torres and to

suggest that those flaws render Al/mendarez-Torres an outlier.

Nevertheless, it was not.necessary for Apprendi actually to

overrule A/mendarez-Torres to find the New Jersey hate crime

statute unconstitutional, as that statute raised the maximum

penalty based on a judicial finding that the defendant had com-

mitted a crime for a particular purpose, not on a recidivism

finding. See 530 U.S. at 491-492. Because the Court had no

need to revisit the narrow holding of Almendarez-Torres, the

exception that Apprendi makes for recidivism findings is

perhaps best understood as an interim prudential measure. See

id. at 490 (“Apprendi does not contest the decision’s validity

and we need not revisit it for purposes of our decision today to

treat the case as a narrow exception to the general rule we

recalled at the outset.”) (emphasis added). The A/mendarez-

Torres holding has never been tested in a case (like this one) in

which the lawfulness of the defendant’s sentence actually de-

pends on the validity of the exception. Thus, even if preserving

Almendarez-Torres was prudent in the context of Apprendi, the

former’s mistakes should not be perpetuated when they would

actually make a difference to the outcome.

3. In fundamental ways, Apprendi and its progeny have

eroded the arguments and assumptions on which the holding of

Almendarez-Torres rests. The first concerns the way in which

Almendarez-Torres distinguished and applied McMillan v.

Pennsylvania, 477 U.S. 79 (1987). The petitioner in Almen-

darez-Torres argued that-McMillan created an important dis-

tinction between judicial factfinding that leads to the

application of a mandatory minimum sentence (which McMil-

lan upheld) and judicial factfinding that alters the maximum

penalty for the crime (which McMillan had suggested would

present a different problem). Instead of adopting such a bright-

line rule, Almendarez-Torres fashioned a new five-factor test,

which aims at determining whether a feature is a mere

“sentencing factor” (which need not be part of the indictment)

13

or instead is an actual “element” of the crime (which must be

charged). See 523 U.S. at 242-246. This methodology is, how-

ever, irreconcilable with the Court’s more recent Sixth Amend-

ment cases.

As currently understood, the relevant Sixth Amendment in-

quiry does not involve analyzing a number of different subjec-

tive factors to determine whether a law goes too far in transfer-

ring factfinding responsibility from jury to judge. Instead,

“(w]hat matters is the way by which a fact entered into the sen-

tence,” Apprendi, 530 U.S. at 521 (Thomas, J., concurring) —

that is, whether the challenged finding had the effect of increas-

ing the sentence beyond the maximum authorized by the jury

verdict or guilty plea. See Blakely, 124 S. Ct. at 2537 (“When

a judge inflicts punishment that the jury’s verdict alone does not

allow, the jury has not found all the facts which the law makes

essential to the punishment, and the judge exceeds his proper

authority.”) (internal quotation omitted). Any finding that has

that effect, however it is labeled, must be made by a jury using

a reasonable-doubt standard. In so holding, Blakely rejected

alternatives to what it called a “bright-line rule” as either too

malleable or too subjective. See id. at 2539-2540.

Given that its basic methodology has been superseded, it is

not surprising that A/mendarez-Torres’s conclusions about the

relevance of the distinction between a finding that requires a

minimum penalty and one that allows a greater penalty have .

now also been rejected. A/mendarez-Torres announced that the

difference between these two was not a “determinative” one,

523 U.S. at 245, and had no effect on the “constitutional out-

come,” id. at 243. Indeed, insofar as it thought the distinction

relevant, the Court in Almendarez-Torres suggested that the use

of permissive maxima is actually fairer to criminal defendants

and therefore might be /ess constitutionally problematic. /d. at

244-245. These statements have simply not survived their

encounter with subsequent cases.

_ Similarly, in Jones, the Court noted the “substantiality” of

the claim that judicial factfinding may not “support the applica-

14

tion of a provision that increases the potential severity of the

penalty for a variant of a given crime.” 526 U.S. at 242-243.

Rather than cite to A/mendarez-Torres, the Court returned to the

suggestion made in McMillan that jury findings are required to

raise the otherwise-applicable maximum penalty. See 526 U.S.

at 242. Consistent with that distinction, the constitutional prin-

ciple identified in Jones is one that, at a minimum, draws a fun-

damental line around factual findings that “increase[] the maxi-

mum penalty for a crime.” Jd. at 243 n.6. Then, in Apprendi,

the Court expressly adopted the core Sixth Amendment rule that

a legislative scheme may not remove from the jury “determina-

tion of a fact that, if found, exposes the criminal defendant to a

penalty exceeding the maximum he would receive if punished

according to the facts reflected in the jury verdict alone.” 530

U.S. at 483. In so holding, the Court distinguished McMillan as

not involving a scheme that kept from the jury facts necessary

to subject the defendant to greater punishment. See id. at 486.

Thus, far from treating the two situations as constitutionally

equivalent, the Court (since Almendarez-Torres) has treated

increasing the allowable maximum and raising the required

minimum as lying on opposite sides of a basic constitutional

divide.

In Harris, the Court confirmed its view of that divide.

There, the Court held that — even in light of Apprendi — findings

that triggered mandatory minimums could still be made by a

judge. Rejecting the equivalence drawn in Al/mendarez-Torres,

the Court declared that “McMillan and Apprendi are consistent

because there is a fundamental distinction between the factual

findings that were at issue in those two cases.” 536 U.S. at 557.

According to Harris, mandatory minimums merely limit a

judge’s sentencing discretion within an authorized range of

punishments. “Judicial factfinding in the course of selecting a

sentence within the authorized range does not implicate the

indictment, jury-trial, and reasonable-doubt components of the

Fifth and Sixth Amendments.” /d. at 558. Those provisions are

concerned with something else. They protect against judicial

determination of “[flacts extending the sentence beyond the

15

statutory maximum,” which traditionally had been charged in

the indictment and submitted to the jury. /d. at 564.

Under Harris, whether a fact must be submitted to the jury

turns not on the “risk of unfairness to a particular defendant,”

Almendarez-Torres, 523 U.S. at 245, but on whether the fact

“extend[s] the defendant’s sentence beyond the maximum auth-

orized by the jury’s verdict.” Harris, 536 U.S. at 557; see also

id. at 566 (“[A] factual finding’s practical effect cannot by itself

control the constitutional analysis.”). As Harris explained,

The factual finding in Apprendi extended the power of the

judge, allowing him or her to impose a punishment

exceeding what was authorized by the jury. The finding in

McMillan restrained the judge’s power, limiting his or her

choices within the authorized range. It is quite consistent to

maintain that the former type of fact must be submitted to

the jury while the latter need not be.

536 U.S. at 567; see also Blakely, 124 S. Ct. at 2538. In reject-

ing the petitioner’s use of McMillan, Almendarez-Torres

misunderstood that constitutional distinction.*

4. The recent vintage of Almendarez-Torres is no reason

to preserve it. The Court has not hesitated to overturn newly

issued decisions as soon as it became clear that they represented

a break either with their predecessors or with their successors.

See Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995)

(overruling Metro Broadcasting, Inc. v. FCC, 497 U.S. 547

(1990)); United States v. Dixon, 509 U.S. 688 (1993) (overrul-

* This is not the only aspect of Almendarez-Torres’s reasoning that has been

repudiated. For example, when the Court in that case refused to adopt “a rule

that any significant increase in a statutory maximum sentence would trigger

a constitutional ‘elements’ requirement,” it relied, in part, on the fact that

such a rule would be “anomalous in light of existing case law that permits a

judge, rather than a jury, to determine the existence of factors that can make

a defendant eligible for the death penalty.” 523 U.S. at 247. That case law

was Walton v. Arizona, 497 U.S. 639 (1990), which has now been overruled

in light of Apprendi. Ring, 536 U.S. at 589.

16

ing Grady v. Corbin, 495 U.S. 508 (1990)); Payne, 501 U.S.

808 (overruling Booth v. Maryland, 482 U.S. 496 (1987), and

South Carolina v. Gathers, 490 U.S. 805 (1989)). Nearly from

the moment it was decided, the scope of Almendarez-Torres has

been narrowed and its reasoning impugned. Indeed, it can

rightly be said that, even in the short time that A/mendarez-

Torres has been on the books, “related principles of law have so

far developed as to have left the old rule no more than a

remnant of abandoned doctrine.” Planned Parenthood v.

Casey, 505 U.S. 833, 855 (1992).

Indeed, few areas of law could be more unsettled than

sentencing law in the aftermath of Apprendi and Blakely. Since

those decisions, sentencing at both the federal and state levels

has been in constant flux. See United States v. Penaranda, 375

F.3d 238 (2d Cir. 2004) (describing the effects of Blakely);

Andrew M. Levine, The Confounding Boundaries of Apprendi-

Land: Statutory Minimums and the Constitution, 29 AM. J.

CRIM. L. 377, 379-380 (2002) (“Apprendi * * * unleashed a

series of far-reaching concerns and questions in the minds of

judges, attorneys, defendants, and legislators alike.”).

Decisions better established than Almendarez-Torres already

have begun to yield to the logic of Apprendi. See Ring, 536

U.S. at 608-609. In this dynamic area, therefore, it is clear that

“precedents are not sacrosanct,” ibid., and that a basic

justification for stare decisis — ensuring that legal rules remain

consistent and predictable — rings particularly hollow.

C. All that is left of Almendarez-Torres are its intimations

that there is something constitutionally distinct about recidivism

findings. As Justice Scalia pointed out in his dissent, however,

“there is no rational basis for making recidivism an exception”

to the general rule that any fact altering the maximum penalty

for a crime must be proved to a jury beyond a reasonable doubt.

523 U.S. at 258. That criticism has been echoed by

commentators. See Murphy, supra, 37 U.C. DAVIS L. REV. at

998; Kryon Huigens, Solving the Apprendi Puzzle, 90 GEO. L.J.

387, 408 (2002) (“[NJone of these reasons for excepting

17

criminal history from the Apprendi rule withstands scrutiny.”).

Indeed, not only does the fundamental logic of Apprendi and

Blakely suggest no basis for a recidivism exception,° but the

justifications that have been offered in support of such an

exception do not withstand scrutiny.

1. The most common defense of the recidivist exception

focuses on the “certainty that procedural safeguards attached to

any ‘fact’ of prior conviction.” Apprendi, 530 U.S. at 488; see

also Jones, 526 U.S. at 249 (“{A] prior conviction must itself

have been established through procedures satisfying the fair ”

notice, reasonable doubt, and jury trial guarantees.”). This

argument, however, misperceives the nature of the finding that

must be made to apply a recidivism enhancement. Under

ACCA, as under similar federal statutes, the finding that allows

the increased sentence to be imposed is not that the defendani

actually engaged in particular conduct with respect to the prior

crimes, but rather that the defendant “has three previous

convictions” for offenses of the sort identified by the statute.

18 U.S.C. § 924(e)(1); see Taylor, 495 U.S. at 602 (ACCA

“generally requires the trial court to look only to the fact of

conviction and the statutory definition of the prior offense’’).°

$s

Apprendi’s liberty-based defense of its core holding brooks no obvious

exception for recidivism findings: “If a defendant faces punishment beyond

that provided by statute when an offense is committed under certain circum-

stances but not others, it is obvious that both the loss of liberty and the stigma

attaching to the offense are heightened; it necessarily follows that the de-

fendant should not — at the moment the State is put to proof of those circum-

stances — be deprived of the protections that have, until that point, unques-

tionably attached.” 530 U.S. at 484; see also Mu., hy, supra, 37 U.C. DAVIS

L. REV. at 996 (“[T]he concerns about liberty and stigma offered to justify the

Apprendi holding apply whether the contested fact involves conduct related

to the underlying offense or involves whether the defendant sustained a prior

conviction.”).

. In addition to the immigration statute construed in Almendarez-Torres

itself, 8 U.S.C. § 1326, the Violent Crime Control and Law Enforcement Act

(the so-called federal “three strikes” law) imposes a mandatory life sentence

on a defendant convicted of a “serious violent felony” if that person has been

18

An enhancement under Section 924(e) requires the

govrnment to prove that the defendant was previously convicted

of a qualifying offense, not that he was actually guilty of that

offense. Although the latter may have already been tested

through constitutionally adequate procedures, the former has

not. It is thus a non sequitur to tell a defendant who contests the

fact of a prior conviction that his guilt has already been

determined in a way that satisfies the Sixth Amendment. The

existence of a qualifying conviction is simply not an issue that

has been adjudicated ever before.

And, as Apprendi and Blakely recognize, the Constitution

does not allow defendants to be deprived of jury findings and

the reasonable-doubt standard at the very moment that they seek

to put the government to its proof on a new factual issue that, if

found, will elevate their expected sentences beyond the range

of punishment that they could have lawfully faced without such

a finding. In this sense, challenges to the accuracy, authenticity,

or sufficiency of the evidence put forward by the government

to prove prior convictions necessary to increase the defendant’s

punishment are functionally indistinguishable from factual

challenges of the sort to which the jury-trial right obviously

attaches. They have the same consequences for the criminal

defendant and should be attended by the same procedural

guarantees.

2. The Almendarez-Torres éxception has been alternatively

defended based on a pragmatict calculation that — because

recidivism determinations are generally straightforward and

uncontested — applying Apprendi to them would likely make no

difference in the run of cases. See Almendarez-Torres, 523

U.S. at 235. There are at least two basic flaws in this argument.

convicted of two previous serious violent felonies or one serious violent

felony and one “serious drug offense.” 18 U.S.C. § 3559(c)(1)(A); see also

21 U.S.C. § 841(b)(1)(A)-(D) (imposing significantly enhanced sentences on

a person who distributes illegal drugs “after a prior conviction for a felony

drug offense has become final’’).

19

First, the underlying assumption is not necessarily valid.

There are a number of circumstances in which defendants can

mount plausible challenges to the government’s contention that

they were previously convicted of a crime qualifying for an

increased sentence, whether under ACCA or under some other

provision. Justice Scalia’s dissent in Almendarez-Torres gives

the apt example of unlawful entry cases, where the use of false

identification documents and assumed names is rampant. See

523 U.S. at 268. In those circumstances, the mere fact that a

defendant subject to a recidivist enhancement has the same

name or identifying information as someone previously convict-

ed of a qualifying offense by no means proves that the defen-

dant was actually the person convicted. Similarly, if the predi-

cate convictions occurred in a foreign country, in which record-

keeping can be erratic and translations (especially of legal ter-

minology) unreliable, the risk of error is real. Cf. United States

v. Small, 333 F.3d 425, 427 n.2 (3d Cir. 2003) (foreign convic-

tion can be used a predicate under Section 924(e)), cert. grant-

ed, 124 S. Ct. 1712 (2004).

Moreover, even if there is no dispute that the defendant was

convicted of a prior offense, there can be significant dispute

about what the offense of conviction actually was. Under

ACCA, after all, whether a particular conviction is in fact a

qualifying conviction often becomes the vital question — as it is

in this case.’ And, although the categorical approach adopted

in Taylor appropriately works to limit the extent to which

making determinations under Section 924(e) involves “an

elaborate factfinding process regarding the defendant’s prior

offense,” 495 U.S. at 601, there remain situations (of which the

present case provides an example) in which the government and

the defendant disagree about the proof of the underlying convic-

tions. The more that making recidivism findings requires the

” Lower courts have construed the A/mendarez-Torres exception as extending

“beyond the question whether a prior conviction exists and to the question of

whether it is a qualifying conviction under the statute.” United States v.

Matthews, 312 F.3d 652, 663 (Sth Cir. 2002).

20

kind of archaeological inquiry into primary sources that the

First Circuit endorsed in this case, the more those determina-

tions will be both contested and prone to error. In such circum-

stances, the burden of proof and the identity of the factfinder

make a difference, both practically and constitutionally. See

Addington v. Texas, 441 U.S. 418, 423 (1979) (the standard of

proof “serves to allocate the risk of error between the litigant

and to indicate the relative importance attached to the ultimate

decision”); see also Apprendi, 530 U.S. at 483-484. The

government should not be able to go beyond the statutory

elements of the prior conviction to see what the “case files

showed,” Shepard IV, 348 F.3d at 312, while simultaneously

insisting that such factfinding can proceed unconstrained by the

constitutional procedures that Apprendi requires for every other

contested factual determination that raises the maximum

penalty for a crime.

Second, that a particular finding may often be easy to make

(or may be undisputed) provides no reason to dispense with the

protections that the Sixth Amendment, as construed in Apprendi

and Blakely, requires before a defendant can be exposed to in-

creased punishment as a result of that finding. The ease with

which such findings may be made means only that the

government may have little difficulty proving to the jury that

the defendant was convicted of the offenses that trigger a

recidivist enhancement. But it makes no sense to deprive those

alleged recidivists to whom a jury-trial right and a different

burden of proof could make a difference of those historic

safeguards merely because many, or even most, other

defendants would not similarly benefit. Constitutional protec-

tions do not disappear merely because, in many cases, they will

not be outcome-determinative.®

® Moreover, insofar as practical consequences matter, if it is true that over-

ruling A/mendarez-Torres is unlikely to cause significant disruption (because

most defendants will either waive their rights or stipulate to the fact of their

prior convictions), that surely provides greater reason for the Court to take

that step. If the Court in Blakely was willing to allow the tremendous

21

| 3. The defenders of Almendarez-Torres have also invoked

fairness, specifically the notion that “the introduction of

evidence of a defendant’s prior crimes risks significant —

prejudice.” 523 U.S. at 235. Although such concerns do exist,

see Old Chief v. United States, 519 U.S. 172, 185 (1995), they

are not dispositive of the constitutional issue. Just as arguments

about fairness did not persuade the Court in Harris that the

Apprendi rule should apply when the trial jury has found (or the

defendant admitted) “all the facts necessary to impose the

maximum,’ 536 U.S. at 566, such concerns have not prevented

and should not prevent the Court from applying Apprendi when

those facts have nor been found by the jury or conceded by the

defendant. See Blakely, 124 S. Ct. at 2541-2542 (rejecting fair-

ness concerms in applying Apprendi to determinate sentencing

schemes that rely on judicial factfinding); Apprendi, 530 U.S.

at 521 (Thomas, J., concurring) (fairness concerns do not make

“the traditional understanding of what an element is any less

applicable to the fact of a prior conviction”).

Moreover, whatever problems jury-made_ recidivism

findings pose can be alleviated through the use of bifurcated

proceedings and, perhaps, appropriate limiting instructions or

stipulations. As is the practice in some States that already

protect the right to a jury trial on the recidivism issue, in a

bifurcated proceeding, the jury (after finding other elements

met) aetermines whether the defendant previously has been

convicted of offenses qualifying for the enhancement. See, e.g.,

Ind. Code Ann. § 35-50-2-8(f); N.C. Gen. Stat. § 14-7.5; cf.

Apprendi, 530 U.S. at 521 n.10 (Thomas, J., concurring); Old

Chief, 519 U.S. at 190 (holding that it is an abuse of discretion

for a court in a Section 922(g) case to refuse to admit

defendant’s stipulation of his felon-status).

Dz. In short, none of the purported justifications for a

recidivism exception provide a reasoned basis for that

upheaval caused by taking the logic of Apprendi seriously, it cannot seriously

be argued that A/mendarez-Torres must be preserved on account of the far

more modest effects of requiring recidivism to be proven to a jury.

22

“exceptional departure” from the general rule requiring jury

findings for facts used to elevate a sentence beyond the

otherwise-available maximum. Apprendi, 530 U.S. at 487.

Indeed, the Court’s admonition in Blakely fits just as well to

this case: “The Framers would not have thought it too much to

demand that, before depriving a man of three more years of his

liberty, the State should suffer the modest inconvenience of

submitting its accusation to the unanimous suffrage of twelve

of his equals and neighbors rather than a lone employee of the

State.” 124 S. Ct. at 2543 (citation omitted). That bedrock

principle, which animates the Court’s understanding of the

Sixth Amendment, applies equally to the accusation that a

defendant has been convicted of previous crimes. A/mendarez-

Torres says otherwise and, for that reason, has no rightful place

in the constitutional pantheon. Almendarez-Torres “was not

correct when it was decided, and is not correct today. It ought

not remain binding precedent.” Lawrence v. Texas, 123 S. Ct.

2472, 2483 (2003).

II. In The Alternative, This Court Should Reverse The First

Circuit’s Overbroad Reading Of Taylor, And Clarify

That The Government Bears The Burden Of Proving

Prior Convictions Through Reliable Evidence That

Reflects Adversarial Testing

In Taylor, this Court observed that “the practical difficulties

and potential unfairness of a factual approach are daunting.”

495 U.S. at 601. Nonetheless undaunted, the court below

ordered the sentencing judge to inquire into police reports

relating to petitioner’s prior arrests to determine the elements

' of subsequent convictions. Its fundamental error was looking

beyond matters that had been tested by the adversarial process

to determine the basis for the convictions.

A. Taylor defined the degree to which a sentencing court

could look beyond “the fact of conviction and the statutory

definition of the prior offense” when inquiring whether a

conviction for violating a non-generic burglary statute satisfied

the definition of a violent felony under ACCA. See 495 U.S. at

eS ee, 2

23

599-602. As Judge Gertner concluded below: “‘Not very far, is

the answer.” What Judge Gertner labeled “the exception to the

categorical approach” — but what is actually a procedure this

Court endorsed for applying the categorical approach to broadly

written statutes — “‘is a limited one.” Shepard J, 125 F. Supp. 2d

at 569.

Applying the categorical approach to defining the phrase

“violent felony” under ACCA, a court must consider “the

elements of the statute of conviction” and not “the facts of [the]

defendant’s conduct.” Taylor, 495 U.S. at 601. Also, if the

statute covers both non-violent and violent felonies, “the indict-

ment or information and jury instructions” may be considered

if they demonstrate that “the jury necessarily had to find” the

elements of a violent felony under ACCA. /d. at 602. Thus,

under Jaylor, the only matters that may be considered to inform

the question whether the crime of conviction encompassed the

elements of a violent felony under ACCA are matters tested by

the adversarial process, with its attendant procedural protections

for defendants, in the underlying proceedings.

1. The court of appeals’ opinion below does violence to

these principles. Paying lip service to the directive that the

elements of the underlying offense, not the conduct for which

petitioner was arrested, determine whether the conviction can

be used to determine the applicability of the sentencing

enhancement (Shepard IV, 348 F.3d at 311), the court

nonetheless repeatedly engaged in just such an impermissible

inquiry. “There is surely an air of make-believe about this case.

No one, and this includes Shepard and the district court, has

seriously disputed that Shepard in fact broke in to half a dozen

or more buildings * * *.” Jbid. (emphasis in original). The

court then held that it was “nearly impossible * * * that the

police reports were mistaken as to venue for four or more of the

six crimes.” Jd. at 314. It noted that petitioner did not “offer

any evidence” that the police reports were incorrect. Because

of these facts, the court held that it was “clearly erroneous’ to

24

find that Shepard did not plead guilty to at least three burglaries

of buildings.” Jbid.

The court of appeals violated another of this Court’s direc-

tives by looking beyond the few documents that might show

what was necessarily found to convict petitioner of the

underlying crimes. It stated: “The Court did not explicitly rule

out attention to other court-related documents * * *.” 348 F.3d

at 312 But 7aylor in fact did just that. The Court explicitly

refused to permit inquiry into “the government’s proof at trial,”

or, on a guilty plea, into a record of underlying facts that

perhaps the government might be able to prove, but were not

necessarily the basis for the plea. /d. at 601-602.’ Consistent

with that approach, in United States v. Palmer, 68 F.3d 52 (2d

Cir. 1995), the court refused to allow reliance on a PSR, which

it viewed as simply a surrogate for the factfinding process that

Taylor had prohibited. Jd. at 59. Accord United States v.

Franklin, 235 F.3d 1165, 1172 (9th Cir. 2000).

2. Logic dictates that the Taylor rule also apply in the con-

text of prior convictions obtained (as in this case) through guilty

pleas. As the court of appeals noted, “all twelve circuits that

have addressed the issue have agreed that the Taylor analysis

applies after a guilty plea.” 348 F.3d at 312 n.4. But Taylor

also recognized the particular concerns posed by guilty pleas:

“{I]fa guilty plea to a lesser, nonburglary offense was the result

of a plea bargain, it would seem unfair to impose a sentence

enhancement as if the defendant had pleaded guilty to

burglary.” 495 U.S. at 602.'"° When courts apply Taylor to

* The rule announced by the court of appeals also eviscerates this Court’s pre-

scription that looking beyond the statutory definition of the prior offense is

appropriate only “in a narrow range of cases.” Taylor, 495 U.S. at 602.

Under the court of appeals’ conception of the inquiry required, the sentencing

court should indulge this inquiry in every case in which the government can

produce some evidence pertaining to the underlying proceedings.

'° “Plea bargains affect guilty pleas that may or may not be on all fours with

the charging documents; they are the product of strategic ‘bargains’ after all,

a

backs SN OE NO TRATES OE ie

25

prove convictions obtained by plea bargain, it is essential that

they respect the same concerns of administration and fairness

that Taylor mandates relating to convictions after jury verdicts.

This the Court can do by limiting the information permissibly

used to prove the elements of the underlying conviction to mat-

ters subjected to adversarial testing in the plea proceeding.

Fundamentally, along with the charging document and the judg-

ment of conviction, such information is composed of the factual

basis required under Fed. R. Crim. P. 11 in every plea proceed-

ing — in other words, the defendant’s admissions. See also

Woldiger v. Ashcroft, 77 Fed. Appx. 586, 590 (3d Cir. 2003)

(“other courts of appeals have considered charging documents,

jury instructions, plea agreements, and plea hearing transcripts

to determine if a defendant's prior conviction qualifies as a

‘violent felony’ under the ACCA”) (citing cases).

At least two circuits have applied Taylor successfully in the

context of underlying convictions secured by guilty pleas, using

a cabined approach that respects the foundational principles of

Taylor. In United States v. Howze, 343 F.3d 919 (7th Cir.

2003) (Easterbrook, J.), faced with a statute that criminalized

conduct broader than ACCA’s definition of a “violent felony,”

the court looked only to the charging document to determine

that the guilty plea was to theft from a person — which the court

held qualified categorically as a violent felony under ACCA.

Id. at 922. In United States v. Demint, 74 F.3d 876 (8th Cir.

1996), the court affirmed the sentencing judge’s look at “the

charging paper and the text of Demint’s guilty plea to determine

whether Demint’s plea was to a charge meeting the generic

definition of burglary.” Jd. at 877. Considering a different

prior conviction, the court examined a Florida “attempt” statute,

and its interpreting case law, to determine that attempted

burglary under Florida law categorically met the catch-all

definition of violent felony. Jd. at 877-878.

based on the sentence offered, the risks of trial, and the state of the evi-

dence.” Shepard I/I, 181 F. Supp. 2d at 24.

26

B. Important policy rationales underlie the 7aylor rule.

Concerns of administration arise when federal sentencing courts

are asked to “engage in an elaborate fact-finding process

regarding the defendant’s prior offenses,” and there are

important concerns of due process and fairness to the defendant.

Taylor, 495 U.S. at 60’ ©92. See Woldiger, 77 Fed. Appx. at

591 (noting support for ‘he Taylor rule including “the practical

difficulties and potential unfairness of making factual findings

on a contested evidentiary record, and potential due process

concerns”); Shepard I, 125 F. Supp. 2d at 563 (categorical

approach “saves judicial resources” and “is by far the fairest

approach’’). These principles demand that the decision below

be reversed.

1. The decision below increases the likelihood that federal

courts will become increasingly immersed in factfinding

inquiries into underlying proceedings. Taylor, 495 U.S. at 601.

The Court relied on a similar rationale in Custis when holding

that defendants may not collaterally attack their underlying

state-court convictions at a sentencing hearing on an ACCA

enhancement. “Two considerations motivated our constitutional

conclusion in Custis: ease of administration and the interest in

promoting the finality of judgments.” Daniels v. United States,

532 U.S. 374, 378 (2001).

As Judge Gertner noted in Shepard III (181 F. Supp. 2d at

25): ;

[T]he Supreme Court ha[s] been clear about limiting

collateral attacks on convictions during federal sentencing

proceedings. Custis v. United States, 511 U.S. 485 (1994)

* * *: Daniels v. United States, 532 U.S. 374 (2001) * * *.

If, on the one hand as in Taylor, a defendant is not allowed

to look below the surface of the plea to demonstrate that he

did not really threaten anyone, even though the crime to

which he pled was an ACCA predicate, then surely the

government cannot do the reverse. It cannot look elow

the surface of the plea to show that even though the plea

was to the general offense of breaking and entering and

A ath PMI

27

even though nothing else apparently was discussed, what

was really going on was a plea to a violent crime.

2. The approach followed by the court of appeals below

raises substantial due process concerns. A defendant has a due

process right to be sentenced on the basis of accurate

information. Townsend v. Burke, 334 U.S. 736, 740 (1948).'!

See also United States v. Tucker, 404 U.S. 443, 447-448 (1972)

(noting the likelihood that a defendant’s sentence might have

been different if the judge had known that prior convictions had

been unconstitutionally obtained). As one commentator has

noted, “[t]he accuracy of fact-finding is determined by the

burden of proof, the reliability of the underlying evidence, and

the opportunity for review of the decision.” Deborah Young,

Fact-Finding at Federal Sentencing: Why the Guidelines

Should Meet the Rules, 79 CORNELL L. REV. 299, 301 (1994).

The court of appeals’ approach shifts to petitioner the burden of

proof, and relies on police reports that lack any assurance of

reliability to enhance a defendant’s sentence dramatically.

Such burden-shifting violates this Court’s rule that facts

relevant to the imposition of a mandatory minimum sentence

must be proved by the government. See McMillan, 477 US. at

91; see also United States v. Cooper, 375 F.3d 1041, 1052 (10th

Cir. 2004) (“Whenever a prior conviction is relevant to

sentencing, the government must establish the fact of that

conviction by a preponderance of the evidence.”)."”

'' In Townsend, the sentence was overturned because the sentencing court

had failed to distinguish prior arrests from prior convictions. 334 U.S. at

740. The court of appeals’ apparent willingness to rely on the untested

records of petitioner’s arrests implicates this right in much the same manner

as in Townsend.

'2 There is a substantial issue about what the appropriate burden of proof

should be. Some recidivist statutes expressly place on the government the

burden of proof beyond a reasonable doubt. See, e.g., United States v.

Green, 175 F.3d 822, 833-834 (10th Cir. 1999) (interpreting 21 U.S.C.

§ 851). In United States v. Watts, 519 U.S. 148, 156 (1997), the Court stated,

“The [U.S. Sentencing] Guidelines state that it is ‘appropriate’ that facts

28

Parke v. Raley, 506 U.S. 20 (1992), is not to the contrary.

In that case, the Court permitted a State to adopt, as part of its

recidivist statute, a presumption that a previous, final, unchal-

lenged conviction was valid. The defendant therefore could be

required to produce evidence demonstrating the invalidity of the

conviction to avoid a consequent sentence enhancement. /d. at

31. This case is very different. Rather than challenging the

validity of the underlying conviction, petitioner argues that

there has been no showing of what he was convicted of in the

relevant respect. Applying Parke in this context would require

the Court to indulge the presumption, not that the conviction is

valid, but that the police report is valid.

The due process concern is heightened if consideration is

given to matters that have not been subjected to adversarial test-

ing under standardized procedures designed to ensure their reli-

ability. Such testing occurs in trial through the adversarial pro-

cess, resulting in the jury instructions and a verdict form. Such

testing occurs at a guilty plea through the requirements of a plea

colloquy, and through enforcing the “knowing and intelligent

“waiver” requirement. But there are precious few such pro-

tections available to ensure the reliability of facts at the

sentencing stage.’ If Taylor survives along with Almendarez-

relevant to sentencing be proved by a preponderance of the evidence”

(internal citation omitted). The Court also noted, but did not reach, the

question whether “relevant conduct that would dramatically increase the

sentence” — like the prior convictions in this case — “must be [proved by]

clear and convincing evidence.” /bid.

' The police reports relied on by the court of appeals — representing double

layers of hearsay — are a prime example of unreliable evidence. “Hearsay

evidence has raised the greatest concern with reliability of evidence at

sentencing.” Young, supra,79 CORNELL L. REV. at 342. Evidence rules

protect against the use of hearsay evidence at trial, and operate also to protect

the defendant’s rights under the Confrontation Clause as well as the Due

Process Clause. /bid. Without question, the police reports relied on by the

courts below would be inadmissible at trial. According to Judge Becker, “the

notion of ‘reliable hearsay’ is, theoretically at least, an oxymoron.” Edward

R. Becker & Aviva Orenstein, The Federal Rules of Evidence After Sixteen

Years — The Effect of “Plain Meaning” Jurisprudence, the Need for an

29

Torres, this Court should articulate the framework it identified

in Taylor. Under that framework, the government must bear the

burden of proving prior convictions through reliable evidence

that reflects adversarial testing — a categorical, limited approach

that advances the goals of fairness and ease of administration.

CONCLUSION

The judgment of the court of appeals should be reversed.

Respectfully submitted.

PAMELA HARRIS GREGORY L. POE*

Co-Chair, Amicus Committee ROY T. ENGLERT, JR.

National Association of MAX HUFFMAN

Criminal Defense Lawyers BRIAN M. WILLEN

1625 Eye Street, N. W. Robbins, Russell, Englert,

10th Floor Orseck & Untereiner LLP

Washington, D.C. 20006 1801 K Street, N.W.

(202) 383-5386 Suite 41]

Washington, D.C. 20006

(202) 775-4500

* Counsel of Record

AUGUST 2004

Advisory Committee on the Rules of Evidence, and Suggestions for Selective

Revision of the Rules, 60 GEO. WASH. L. REV. 857, 889 (1992). “Given the

centrality of the district court's findings under the new res. reliance upon

inadmissible evidence at the sentencing stage presents a scrious problem.”

Id. at 890. See also Young, supra, 79 CORNELL L. REV. at 343-351

(discussing other problems of unreliable evidence being used in sentencing

proceedings).