Criminal history and Shepard‘s impact

In my coverage of the Supreme Court’s opaque sentencing work in its Shepard ruling in March (basics summarized here, commentary here and here and here), I particularly stressed what the decision might portend for the Almendarez-Torres prior conviction exception.  However, a ruling today from the Sixth Circuit serve as a reminder that Shepard’s rules for the consideration of a defendant’s criminal history are consequential no matter what happens to the Almendarez-Torres prior conviction exception.

In US v. Hargrove, No. 04-3338 (6th Cir. July 19, 2005) (available here), the Sixth Circuit applies Shepard and related precedents to conclude that it was improper for the district court to find a particular prior felony was violent within the meaning of the Armed Career Criminal Act (a finding which served to trigger a minimum sentence of fifteen years in prison after the defendant’s jury conviction of being a felon in possession of a firearm ).  In addition to the intricate sentencing discussion at the end of the opinion, Hargrove is also interesting reading because of its consideration (and rejection) of the defendant’s claim that he was entitled to a jury instruction on the defense of necessity during his trial for being a felon in possession of a firearm.