Second Circuit on scope of prior conviction exception

Thanks to Yuanchung Lee and this post over at the Second Circuit Blog, I see that the Second Circuit yesterday issued this amended opinion in US v. Weisser, No. 01-1588 (2d Cir. June 20, 2005), amended (July 5, 2005), which clarifies and expands upon its earlier discussion of the limits of the Almendarez-Torres prior conviction exception.  Yaanchung Lee’s post covers Weisser in full multi-color detail, explaining that the amended opinion “now explicitly states that certain facts relating to criminal history are indeed too far removed from ‘the conclusive significance of a prior judicial record to fall within that exception.'” 

The key discussion of the prior conviction exception appears in footnote 10 on page 27 of the slip opinion in Weisser. Here’s the full text of that footnote:

Specifically, the district court relied on (1) Weisser’s repeated parole violations after his release from prison on a child molestation conviction; (2) his repeated failure to register as a sex offender, as required by law; and (3) his ‘prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.’  Although certain facts of prior conviction are not subject to the Sixth Amendment’s protections under the exception established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), the scope of that exception is unclear, see Shepard v. United States, 125 S. Ct. 1254, 1262 (2005)United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). Whether or not Weisser’s previous parole violations fall within the Almendarez-Torres exception is open to debate, but we think that the other facts upon which the district court relied are ‘too far removed from the conclusive significance of a prior judicial record’ to fall within the exception.  Shepard, 125 S. Ct. at 1262cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relying on Shepard and concluding that district court relied on facts that fell outside of the Almendarez-Torres exception, thus violating the Sixth Amendment); United States v. Washington, 404 F.3d 834, 841-42 (4th Cir. 2005) (same).