THE
LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890
Application of Booker and Fanfan to Prior Criminal Convictions
Finally, Miller argues that when the district court considered his prior
convictions in computing his sentencing range under the Guidelines, it could,
under Blakely
v. Washington, --- U.S. ----, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004),
take into account the "timing" or "nature" of the relevant
offenses only if supported by admissions by Miller or by jury findings. By
"nature," Miller refers to whether the prior convictions were for
"violent" felonies; by "timing," he refers to whether the
offenses or convictions (Miller's wording is obscure) "happen[ed] prior to
the commission of the instant offense." We assume for purposes of this
argument only that Blakely will be held to cover Guidelines mandates as
well as statutory ones--an issue pending before the Court in United States v.
Booker,
No. 04-104, and United States v. Fanfan,
No. 04-105 (argued Oct. 4, 2004).
Blakely, of course, was an application of Apprendi
v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and quoted Apprendi 's
own statement of its holding: "Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt." Blakely,
--- U.S. at ----, 124 S.Ct. at 2536 (quoting Apprendi,
530 U.S. at 490 (emphasis added)). Apprendi in turn had noted the
Court's prior decision in Almendarez-Torres
v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998),
upholding use of a prior conviction that had not been charged in the indictment,
and "treat[ed] the case as a narrow exception to the general rule"
requiring charge in an indictment, submission to the jury, and proof beyond a
reasonable doubt. Apprendi,
530 U.S. at 490. Thus, Apprendi and Blakely leave no room for
us to alter the "narrow exception" for sentence enhancements based on
prior convictions (whether mandated by a statute or the Guidelines). Cf. Rodriguez
de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S.Ct. 1917,
104 L.Ed.2d 526 (1989) ("If a precedent of this Court has direct
application in a case, yet appears to rest on reasons rejected in some other
line of decisions, the Court of Appeals should follow the case which directly
controls, leaving to this Court the prerogative of overruling its own
decisions.").
*5
Miller's argument, of course, would preserve the form of the exception.
As he would have it, the sentencing court could, in applying a statute or Guidelines,
rely on a prior conviction--excepting only the parts that matter: the nature of
the offense and the timing. Indeed, Miller never explicitly challenges the
continued validity of Almendarez-Torres. Moreover, the claim that Apprendi
and Blakely justify a radical re-interpretation of Almendarez-Torres
is undermined by Apprendi 's own characterization of the case as having
"turned heavily upon the fact that the [sentence-increasing factor] was
'the prior commission of a serious crime." ' Apprendi,
530 U.S. at 488 (emphasis added) (quoting Almendarez-Torres,
523 U.S. at 230).
Apart from gutting the exception, Miller's position overlooks what a prior
conviction actually means. In the normal case under the Guidelines, the
only "nature" of a prior crime that would concern a sentencing court
would have been the nature constituted by the elements of the crime charged,
which would already, in the initial trial, have been charged and found by a jury
(or judge in the event of waiver) beyond a reasonable doubt. See Taylor
v. United States, 495 U.S. 575, 599-602, 110 S.Ct. 2143, 109 L.Ed.2d 607
(1990); see also United
States v. Gabriel, 365 F.3d 29, 32 (D.C.Cir.2004) (recounting
application of Taylor to Guidelines treatment of prior convictions
generally). Alternatively they would have been formally admitted by the
defendant by pleading guilty. Even Taylor 's own exception for a
"narrow range of cases" where the jury was "actually required to
find" additional facts, see Taylor,
495 U.S. at 602, would involve prior proceedings meeting Apprendi
's standards. To the extent that the lower courts have allowed the use of facts
that had not been established under Taylor's requirements, see discussion
in Gabriel,
365 F.3d at 32, the Court's concerns in Apprendi and Blakely
might require retrenchment; but Miller makes no claim that any such use occurred
here.
As for the timing of the prior offenses and convictions, it seems highly
improbable that the Court (assuming the continued validity of Almendarez-Torres
) would apply Blakely to require an entire retrial to pin down an offense
date, which is normally uncontroversial and unlikely to have been at issue in
the initial trial, or a conviction date, which is usually manifested in a formal
court record. At least in the absence of a claim that the dates of offense or
conviction used by the district court for sentencing erred by a relevant
margin--and Miller makes no such claim--we have no reason to regard the issue as
distinct from the Almendarez-Torres exception.
The judgment of conviction and sentence are
Affirmed.
U.S. v. Miller L 88942, *4 -5 (C.A.D.C.,2005)
THE
LAW OFFICE OF
WILLIAM MALLORY KENT
1932 Perry Place
Jacksonville, Florida 32207
904-355-1890