# Amicus Curiae Brief — Shepard v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0015%3A10 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2005 - **Citation:** 544 U.S. 13 ## Text 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. 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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 - Pe EN en ch hab aeui eesenaand deennes 7, 10, 17 is PED 53 06 deb ies dindissenhwaweneuns 3, 6 Us NT Ss ag Ea at oe oe ee passim ee Seduce kd ihoneeesi oneness ceieeas 9 Sn a ID. eon eee) dea ete ate uas es 18 Be GAs BE TIUEED a ven eccccesecatoccunes 18 le Gon A. © GD 6 0c hn vintccpeuvaccetuse 21 ee SE Be GE Pe ON OD ds hon sncenuwoteensens 3 ee es O08, 21 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). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0015%3A10. Public record. Not legal advice.