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Sentencing Law and Policy
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Notable affirmances in the 10th and 11th Circuits

By Douglas Berman

Unlike all the circuit court Booker fireworks on Tuesday (detailed here), Wednesday was relatively quite save for noteworthy affirmances of sentences in the Tenth and Eleventh Circuits.  The Eleventh Circuit’s ruling in US v. Dowling, No. 04-10464 (11th Cir, Mar. 23, 2005) (available here) applies the circuit’s strict plain error test again, though what makes the case interesting is the court’s discussion of when a Booker issue has been preserved.

The Tenth Circuit’s ruling in US v. Moore, 2005 WL 668813 (10th Cir. Mar. 23, 2005), is even more interesting because of its extended discussion of Shepard and the the Almendarez-Torres “prior conviction exception” (basics here).  In Moore the Tenth Circuit concludes “that Supreme Court precedent, including its recent holdings in United States v. Booker, 125 S.Ct. 738 (2005) and Shepard v. United States, 544 U.S. (2005), do not require the government to charge in an indictment or prove to a jury either the existence of prior convictions or their classification as ‘violent felonies.'”  The Moore court explains:

Because determining whether a given felony constitutes a “violent felony” is a question of law and not fact, the Sixth Amendment does not require that determination to be made by a jury…. 

Apprendi and Booker‘s exception for prior convictions subsumes inquiries into whether a given conviction constitutes a “violent felony.”  It is a question of law whether a felony meets the statutory definition of a “violent felony,” and such a question does not trigger the Sixth Amendment concerns addressed in Booker.  Frthermore, determining whether a prior conviction was for a “violent felony” involves an inquiry intimately related to whether a prior conviction exists, and therefore falls within the prior convictions exception to the Apprendi rule. The Court’s concerns with prejudice to defendants animating its Almendarez-Torres decision would be present with equal force if a jury were to consider whether three prior crimes constituted “violent felonies.” 

We therefore conclude that the government need not charge in an indictment and prove to a jury that a defendant’s prior conviction constitutes a “violent felony” under § 924(e).