D. The Continuing Validity Of Almendarez-Torres Is Not Before This CourtRespondent's Brief at 43-46. Petitioner Shepard's Brief did cite to Jones, Apprendi and Blakely, for the proposition that the First Circuit's interpretation of Taylor v. United States, 495 U.S. 575 (1990) allows the Court to go beyond the mere prior conviction and into the realm of adjudicating by a preponderance of the evidence whether said prior conviction's underlying facts (as culled from police reports rather than merely the judgment) constituted a predicate offense for purposes of the Armed Career Act. Judge Selya's concurrence in the panel's judgment was only because prior panel decisions forced him to concurr, but he indicated he viewed these as wrongly decided and in violation of the Supreme Court's rule in Taylor.
Amicus the National Association of Criminal Defense Lawyers contends (Br. 6-22) that Almendarez-Torres , supra , was wrongly decided. NACDL further contends that the decision has been undercut by Apprendi, supra, and its progeny, and that this Court should overrule the decision. For several reasons, this Court should decline that invitation. First, under this Court’s Rule 14.1(a), only a question that is “set out in the petition” or “fairly included therein” will be considered by the Court. The petition presents only questions concerning the kinds of materials a sentencing court may consult to determine whether a prior burglary conviction was for a generic burglary, see Pet. i-ii, and specifically indicated that “[n]o constitutional provision is involved” in this case. Pet. 1. Nor is the question “fairly included.” Amicus does not contend otherwise, indicating that the validity of Almendarez-Torres is an additional issue to be decided “as well as the Taylor issue on which certiorari was granted.” NACDL Br. 2. See generally Yee v. Escondido, 503 U.S. 519, 535 (1992) (Court “disregard[s] [this rule] ‘only in the most exceptional cases,’ where reasons of urgency or of economy suggest the need to address the unpresented question in the case under consideration”) (quoting Stone v. Powell, 428 U.S. 465, 481, n.15 (1976)). Second, petitioner presented no comparable claim in the courts below. See 02-1216 Pet. C.A. Br. 1-46; 99-2167 Pet. C.A. Br. 1-19. See generally Pennsylvania Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 212-213 (1998) (“Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them.”) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 147 n.2 (1970)). Finally, this Court “do[es] not ordinarily address issues raised only by amici.” Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 97 n.4 (1991). There is no reason for the Court simultaneously to depart from all of those sound practices in this case.
In any event, the Court in Apprendi was correct in declining to disturb Almendarez-Torres. As the Court stressed in Almendarez-Torres, that case involves recidivism, which is “as typical a sentencing factor as one might imagine.” 523 U.S. at 230 (citing, among other statutes, 18 U.S.C. 924(e)). Principles of notice and fundamental fairness do not require that prior convictions be alleged in the indictment or found by a jury in order for the defendant to be sentenced to a longer term as a recidivist. A defendant cannot claim surprise concerning the fact of a prior conviction, because he previously underwent the criminal process that led to the judgment.
In addition, as the Court observed in Apprendi, “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt”—which Almendarez-Torres permits—and allowing a judge rather than a jury to find in the first instance facts that “relate to the commission of the offense itself.” 530 U.S. at 496 (internal quotation marks omitted). Indeed, “unlike virtually any other consideration used to enlarge the possible penalty for an offense, * * * a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Jones, 526 U.S. at 249; accord Apprendi, 530 U.S. at 488 (noting “certainty” in Almendarez-Torres that “procedural safeguards attached to any ‘fact’ of prior conviction”). Extension of Apprendi to the fact of prior convictions also would disserve future defendants’ interests by bringing their prior criminal misconduct to the attention of jurors. “As this Court has long recognized, the introduction of evidence of a defendant’s prior crimes risks significant prejudice.” Almendarez-Torres, 523 U.S. at 235; Old Chief v. United States, 519 U.S. 172, 185 (1997) (“there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant”); Spencer v. Texas, 385 U.S. 554, 560 (1967) (evidence of prior crimes “is generally recognized to have potentiality for prejudice”); cf. also id. at 563-564 (Due Process Clause does not require bifurcated proceeding when jury resolves recidivist sentencing issues). Finally, this Court has repeatedly denied review in cases that (unlike this case) fairly presented the question whether Almendarez-Torres should be overruled in light of Apprendi, most recently just two weeks before the writ of certiorari was granted in this case. [n. 16]
Under the circumstances, it would be extraordinary for this Court to address a question of such potential significance—which could affect tens of thousands of sentences—in a case in which the question was not raised in the petition for a writ of certiorari (or even in petitioner’s merits brief), and when the question has not been the subject of full briefing by the parties.
[n. 16] See, e.g., Pineda-Cortes v. United States, 124 S. Ct. 2813 (2004) (No. 03-9287); Garza-Garza v. United States, 124 S. Ct. 2096 (2004) (No. 03-8730); Garcia-Saldivar v. United States, 124 S. Ct. 2067 (2004) (No. 03-8536); Meza-Gonzalez v. United States, 124 S. Ct. 2017 (2004) (No. 03-8468); Sanchez-Medina v. United States, 124 S. Ct. 1655 (2004) (No. 03-7510); Lapsley v. United States, 124 S. Ct. 1409 (2004) (No. 03-7331); Jones v. United States, 124 S. Ct. 1145 (2004) (No. 03-6784); Hitt v. Kansas, 537 U.S. 1104 (2003) (No. 01-10864); Bradshaw v. United States, 537 U.S. 1049 (2002) (No. 02-5015); Hagen v. United States, 537 U.S. 828 (2002) (No. 01-9064); Gray v. United States, 536 U.S. 963 (2002) (No. 01-8724); Luzardo v. United States, 536 U.S. 962 (2002) (No. 01-6491); Lozano-Ortiz v. United States, 535 U.S. 1113 (2002) (No. 01-8092); Ford v. United States, 535 U.S. 1098 (2002) (No. 01-7399); Bulgin v. United States, 535 U.S. 1095 (2002) (No. 01-742); Reyes v. United States, 535 U.S. 932 (2002) (No. 01-6151).
I believe that petitioner Shepard will win this case, unless the Court is ready to set aside Taylor. As to the Almendarez-Torres issue raised by amicus NACDL, I am still wondering whether the Court will actually touch upon it. Certiorari was granted in Shepard on June 21, 2004, only 3 days before Blakely was decided. Oral argument in Shepard is set for Monday, November 8, 2004.