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Fifth Circuit panel spars over state of “prior conviction” exception

By Douglas Berman

Anyone still interested in the “prior conviction” exception in the tangled web of Apprendi doctrine should be sure to check out a Fifth Circuit panel’s ruling today in US v. Pineda-Arrellano, No. 06-41156 (5th Cir. July 17, 2007) (available here). 

Writing for the majority, Judge Edith Jones asserts that “a majority of the Supreme Court has reaffirmed [the prior conviction exception of] Almendarez-Torres in James v. United States, 127 S. Ct. 1586 (2007),” and that “few issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this.”  Judge Jones further asserts for the Fifth Circuit that questioning the validity of Almendarez-Torres “no longer serves as a legitimate basis for appeal” and she concludes with these sentiments:

In the future, barring new developments in Supreme Court jurisprudence, arguments seeking reconsideration of Almendarez-Torres will be viewed with skepticism, much like arguments challenging the constitutionality of the federal income tax. It would be prudent for appellants and their counsel not to damage their credibility with this court by asserting non-debatable arguments.

Writing a lengthy separate concurrence, Judge James Dennis takes issue with the majority’s attempt to drive a stake through defense efforts to raise prior conviction Apprendi claims.  Here is how the dissent begins:

I concur only in the majority’s holding that this court is bound by the Supreme Court’s decision in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and that Mr. Pineda’s conviction and sentence are affirmed.  I emphatically do not join the majority’s various statements regarding the continued validity of Almendarez-Torres, including especially its assertion that “this issue no longer serves as a legitimate basis for appeal.”  The majority’s language amounts only to a dictum that exceeds the authority of this court and conflicts with decisions of the Supreme Court.