Thursday, August 05, 2004

U.S. v. Shepard: Is the Court revisiting Almendarez-Torres?

I had earlier commented here about the Court taking a case -one from Washington State- to overrule Almendarez-Torres. It appears that the Court already has such a case, but it is from the First Circuit, as reflected in this post at Sentencing Law and Policy, which states, in part, as follows:
UPDATE: I have been meaning to highlight this important and insightful point that attorney Bill Fick has made in the comments that merits mention here:

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: US v. Shepard, 03-9168.

involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.
The Supreme Court Docket for the case is here and the Questions Presented for Review are as follows:
Decision Below: 348 F.3d 308 (1st Cir. 2003)


The Armed Career Criminal Act [18 U.S.C. §924(e)] imposes a mandatory minimum sentence of 15 years imprisonment for a person convicted of being a felon in possession of a firearm [18 U.S.C. § 922(g)] where that person has previously been convicted of three violent felonies or serious drug offenses or both. United States v. Taylor, 495 U.S. 575 (1990) held that Congress intended a sentencing court to employ a categorical approach to determine whether a defendant's prior convictions qualify as predicates for this sentence enhancement, looking only to the fact of conviction and the elements of the statute of conviction, or to the charging document and the jury instructions to determine whether all of the elements of generic burglary (an enumerated violent felony) were necessarily adjudicated in the state court. The questions presented are:

1. Whether, where the defendant has pleaded guilty to a nongeneric charge of burglary brought under a nongeneric statute, there is no contemporaneous record of the guilty plea proceedings and the judgment of conviction reflects a general finding of guilty, the sentencing court is still bound by Taylor's categorical method of application or may instead be required to conduct an inquiry - including an evidentiary hearing - into the facts underlying the conviction, to determine whether, in the guilty plea proceeding, both the defendant and the government believed that generic burglary was at issue?

2. If so, whether the sentencing court may be required to consider a version of these underlying facts found in any document in the court file such as an investigative police report or a complaint application and, if the facts alleged in the document are not challenged by the defendant, regard them as sufficiently reliable evidence that the defendant was convicted of a crime including all of the elements of generic burglary to support an Armed Career Criminal Act enhancement?
Certiorari granted 6/21/04. (Blakely decided on June 24, 2004)

The brief for petitioner Shepard is due on August 27, 2004.