The “prior conviction” exception to Blakely

As a result of the decision in Almendarez-Torres, 523 U.S. 224 (1998), a “prior conviction” exception has been built into the Sixth Amendment’s application in Apprendi and Blakely. That is, both Apprendi and Blakely state that its rule requiring certain facts to be proven to a jury beyond a reasonable doubt or admitted by the defendant only applies to facts “other than the fact of a prior conviction.”

The theoretical soundness of this exception has been widely questioned, and Justice Thomas’ own comments about Almendarez-Torres suggest that there are no longer five votes on the High Court in support of this exception. Nevertheless, the “prior conviction” exception remains good law (for now), and we are seeing courts in the wake of Blakely giving this exception a fairly broad reading.

For example, in US v. Quijada, NM 04cr0516 (D. N.M. July 28, 2004) (first discussed here), Judge James Browning concluded based on the Tenth Circuit’s decision in Cooper v. US, 2004 U.S. App. LEXIS 14865 (10th Cir. July 19, 2004), that a “judge, by a preponderance of the evidence, can and should decide facts related to a prior conviction, not just the fact of conviction.” Slip op. at 10 (emphasis added). Notably, the Cooper ruling does not directly address whether Blakely could be read to suggest that a jury and not a judge must make factual findings regarding the nature of a prior conviction. Stil, I think Judge Browning is right to view the Tenth Circuit’s decision in Cooper as binding precedent indicating that a range of auxillary facts relating to a conviction escapes the Apprendi/Blakely rule. Here’s the full decision in US v. Quijada:
Download us_v_quijada.pdf

Similarly, a few recent state cases have suggested the Almendarez-Torres “prior conviction” exception has broad reach (though without exploring in depth the precise scope of the exception). For example, in State v. Sour, 2004 Ohio App. LEXIS 3689 (July 30, 2004), not only did an Ohio intermediate appellate court suggest that Blakely does “not apply to the findings necessary to impose consecutive sentences,” it also suggested that even after Blakely “the trial court also was entitled to take note of the fact that [the defendant] previously had been placed on judicial release or probation and revoked.” Likewise, in People v. Ochoa, 2004 WL 1719242 (Cal. App. Aug. 2, 2004), a California intermediate appellate court held in an unpublished opinion that, due to the “prior conviction” exception, “the trial court could properly rely on the fact of appellant’s status as a probationer without a jury determination in imposing the aggravated term.”

UPDATE: I have been meaning to highlight this important and insightful point that attorney Bill Fick has made in the comments that merits mention here:

Apart from Booker and Fanfan, it’s worth noting that the Court earlier granted cert in a case that could turn out to be a vehicle for revisiting Almendarez-Torres in light of Blakely: US v. Shepard, 03-9168

Shepard involved a sentence under the Armed Career Criminal Act, which imposes a 15-year mandatory minimum for anyone convicted of being a felon in possession of a firearm who has three or more prior convictions for a “violent felony.” Shepard pleaded guilty to possession of a firearm and had been convicted multiple times for a generic crime of “breaking and entering” under state law. If the crimes involved breaking and entering a building, they would qualify as ACCA predicate offenses. If they involved breaking and entering a car or vessel, they would not. While police reports attached to the applications for state criminal complaints suggested that at least 5 convictions involved a building, those details were not reflected in the complaints themselves.

The district court did not impose the enhancement. United States v. Shepard, 125 F. Supp. 2d 562 (D. Mass. 2000). The court of appeals reversed and remanded, 231 F. 3d 56 (1st Cir. 2000), suggesting that the court could consider the police reports and any admissions the defendant made in either the state plea colloquy or federal sentencing. The district court again declined to impose the ACCA enhancement, 181 F. Supp. 2d 14, the First Circuit reversed again, 348 F.3d 308, and cert. was granted.

The “questions presented” (pre-Blakely) focus on how the sentencing judge should conduct fact-finding. Blakely obviously raises the question of whether it should, in fact, be a jury issue.