Supreme Court seems inclined to limit, but not eliminate, Apprendi‘s prior-conviction exception

As previewed in this post, the Supreme Court this morning heard oral argument in Erlinger v. United States, No. 23-370, to consider whether the Sixth Amendment requires a jury to find (or a defendant to admit) that prior offenses were “committed on occasions different from one another” to trigger the severe mandatory minimum sentence of the Armed Career Criminal Act.  As revealed in some of the headlines of press pieces about the argument, it seems a majority of Justices are likely to find Apprendi rights apply here:

From Bloomberg Law, “High Court Suggests Robust Jury Right for Longer Sentences“

From Courthouse News Service, “Supreme Court leans toward jury review for career criminal sentences“

From Law360, “Sotomayor ‘Annoyed’ By Supreme Court’s Focus On History“

The full 90-minute oral argument in Erlinger is available at this link, and it makes for an interesting listen.  I especially liked, in light of my prior post, the very first question in the argument: Justice Thomas asked, after hearing the defense’s opening statement urging limits on the Almendarez-Torres prior-conviction exception to Apprendi, “wouldn’t it be more straightforward to overrule Almendarez-Torres?”.   In turn, Justice Alito followed up by asking “if we were to reexamine that, would it then be appropriate to reexamine the entire question that was opened up in Apprendi?”.

In the end, it seems neither Almendarez-Torres nor Apprendi are in any real jeopardy.  A majority of Justices were clearly inclined to adopt the view, argued by both the defense and the government, that  Apprendi‘s prior-conviction exception is confined to just the fact of a prior conviction so that any offense-related facts beyond the elements of the prior crime must be proven to a jury if those facts increase the applicable sentencing range.  Less clear is whether the Court might reach resolve this case unanimously.  Justice Alito has never been a big fan of Apprendi rights, and a few other Justices seemed interested in discussing some historical practices of judges finding facts related to recidivism.   Just how this case gets written up may prove interesting.