PRESERVING APPELLATE ISSUES: Julie Vandegrift, Paralegal, FDSET
The Prior Conviction and Mandatory Minimum Exceptions
In a September 4, 2005, post at his sentencing blog (http://sentencing.typepad.com), Professor Douglas Berman called attention to the need in cases to preserve issues concerning the "prior conviction exception" and the "mandatory minimum exception" to the Apprendi-Blakely rule. These exceptions were set out in two Supreme Court cases, Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219 (1998) and Harris v. United States, 536 U.S. 545, 122 S. Ct. 2406 (2002). In light of the changing Court, the exceptions might no longer be as certain as they were.
In Almendarez-Torres, the defendant was an illegal alien charged under 8 U.S.C. § 1326. Mr. Almendarez-Torres had been found in the United States after having been deported. He pled guilty to the charge and admitted that he had been deported, that he later unlawfully returned to the United States, and that his earlier deportation had taken place subsequent to having been convicted of aggravated felonies. He argued at sentencing that because the Indictment did not mention his prior aggravated felonies, the convictions could not be used to increase his sentence, because an indictment must set forth all elements of a crime. The district court disagreed, holding that § 1326(b)(2) was a penalty provision and not a separate crime that must be proven. The court of appeals agreed. The Supreme Court also agreed, rejecting Mr. Almendarez-Torres’ constitutional claim that his recidivism must be treated as an element of his offense. Although the Supreme Court did develop the "prior conviction exception" in this case, the Court pointedly stated that it expressed no view on whether a higher standard of proof might apply to sentencing determinations that significantly affect the severity of sentence.
In Harris, the defendant was charged with use and carry of a firearm in relation to a drug trafficking crime. It was alleged that Mr. Harris was selling controlled substances while he had an unconcealed semiautomatic pistol at his side at his pawnshop. The charge carried a five-year mandatory minimum sentence, with a seven-year mandatory minimum sentence if the firearm was brandished. Mr. Harris objected to the seven-year mandatory minimum sentence on the ground that brandishing was not charged in the indictment nor was he convicted of brandishing. The district court overruled his objection and the court of appeals affirmed. The Supreme Court also affirmed and found that brandishing was not a separate crime but a sentencing factor to be found by the judge. Because the enhancement only altered the minimum sentence, not the prescribed statutory maximum as was the issue in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), allowing the judge to decide if a firearm had been brandished did not violate the 5th or 6th Amendments.
By Professor Berman’s count, with both Rehnquist and O’Connor off the bench, five of the remaining justices oppose Almendarez-Torres, and only two support it. As for Harris, four justices oppose it and at the most, three support it. New justices could sway decisions. The tip here is to be keenly aware that prosecutors may be seeking more admissions or jury findings on all necessary facts. By all counts, to advocate properly for the client, it is important to preserve these issues, because the retroactive applications of Apprendi and Blakely are questions that have not yet been taken up by the Supreme Court.