Wednesday, July 06, 2005

Even Better Language Limiting the Reach of the Almendarez-Torres Exception

United States v. Weisser, Docket No. 01-1588 (2d Cir. 2005) (Decided June 20, 2005; Amended July 5, 2005): Two weeks ago, this Blog pointed out that in this opinion, the Court stated in significant dicta that certain facts concerning a defendant's criminal history do not fall within the Almendarez-Torres exception to the Apprendi-Blakely rule, thus limiting the scope of this often-critized decision. Yesterday, the Court issued an amended opinion in the same case and expanded upon this language. 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." Amended Op. at 27 fn. 10, quoting Shepard, 125 S. Ct. at 1262. Kudos to the Court for clarifying its position on an important issue!

As this Blog previously noted:

"Weisser also appealed various aspects of the sentence imposed, including the district court's three-Category horizontal departure from Category III to Category VI. In the course of evaluating the propriety of this departure, the Court offhandedly (and unnecessarily, given the Booker remedial ruling) states: "The district court's horizontal departure violated the Sixth Amendment because it was based on facts not found by the jury." Op. at 28 (emphasis added). This startling pronouncement -- after all, aren't facts underlying criminal history departures covered by the Almendarez-Torres exception to the Apprendi-Blakely rule? -- turns out to be somewhat less momentous than first appears. This is because the the factual bases for the horizontal departure in this case involved not the "fact" of a prior conviction or even the "nature" of a prior conviction, but three other kinds of facts concerning the defendant's criminal history. As a foonote explains, "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'" in departing to Category VI. Op. at 28, fn.10.

The 2nd and 3rd bases for the departure seem clearly outside the Almendarez-Torres exception. But the 1st basis seems quite close to the kind of facts that courts have routinely held to fall comfortably within that exception. To start, why should a defendant's "repeated parole violations" -- which of course are easily proved by court records -- be treated any differently than a defendant's "repeated convictions"? If the former cannot be relied upon to increase a statutory maximum unless admitted by the defendant or found by a jury (as this opinion states), neither should the latter. Even read more narrowly, moreover, the 1st basis is quite similar to the basis triggering the two criminal history points required under Section 4A1.1(d) of the Guidelines when the instant offense is committed while the defendant is on probation or parole for a prior offense. Finally, the 1st basis is also somewhat akin to a "fact" required for the application of the Armed Career Criminal Act -- the existence of three prior drug or violent felonies "committed on occasions different from one another". See 18 U.S.C. § 924(e). Of course, the Second Circuit previously held that such a fact falls squarely within the Almendarez-Torres exception. But if a court violates the Sixth Amendment when it increases a defendant's statutory maximum based on his repeated parole violations, why doesn't it also violate the Sixth Amendment when it does the same based on the fact that his 3 prior qualifying felonies were committed on different occasions?

In any event, if Shepard didn't hammer the point home clearly enough, Weisser should: Counsel should raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum. At worst, even if the Almendarez-Torres exception is not yet on its last legs, its scope is certainly an open question."

When this Blog noticed yesterday that an amended opinion had been issued in Weisser, our fear was that the Court recognized this great dicta and decided to get rid of it. Fortunately, the Court did not do so, and in fact did the very opposite -- it expanded upon and clarified its discussion concerning the limits of the Almendarez-Torres exception.

The critical addition is found in the same footnote previously discussed, footnote 10 on page 27 of the slip opinion. This footnote, with the new addition in red, now states:

"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, 543 U.S. ___, 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 1262; cf. United States v. Gutierrez-Ramirez, 405 F.3d 352, 359 (5th Cir. 2005) (relyin 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)."

The take-away from the amended portion is that there are indeed facts, ostensibly concerning a defendant's criminal history, that are "too far removed from the conclusive significance of a prior judicial record" to be covered by the Almendarez-Torres exception. Amended Op. at 27 n.10. Those facts include the facts listed in the 2nd and 3rd categories relied upon by the district court to horizontally depart: the defendant's "repeated failure to register as a sex offender" and his "'prior attempts to arrange sexual liaisons with other minors and his prior relationship with a teenage boy.'" Id. One would assume that other "criminal history" facts of a similar variety likewise would not be covered by the Almendarez-Torres exception, though which facts would so qualify is unclear. Indeed, the amended opinion does not even answer whether the first category of facts relied upon by the district court -- Weisser's prior repeated parole violations -- falls within or outside of the Almendarez-Torres exception, noting only that this question "is open to debate." Id.

At the very least, the amended opinion in Weisser should serve as a clarion call to all defense counsel: Raise Sixth Amendment challenges to the use of any criminal history related fact to increase the statutory maximum!

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Throughout the centuries history tells of men and women with the midas touch, who achieved greatness against what seemed insurmountable odds. To some their successes appeared to be the result of blind luck, to others the reward for hard work, but the truth about the successes of men such as Andrew Carnagie and Henry Ford is much more interesting.
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The key factor involved in the process of achieving any desire lies in the response of one's mind to the objective. If a complacent attitude is apparent then there will be a lack of enthusiasm leading to failure or only half-success.
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If success is to come your must realise what is expected to materialize. This statement may seem obvious at first but if careful thought is given its meaning takes on deeper significance.
Many people fail to gain satisfactory results from their endeavours because they did not know what they wanted to accomplish in the first place. Your objective must not be hazy or incomplete. Before you reach your goal you must be able to identify how your life will be different when you achieve it. You must know exactly what it is that you want to achieve. How will your life be better/different? How will you feel? What way will you look? What situations will you find yourself in? Will other people in your life be effected and if so how will they react? You need a clear definite picture in your mind of what the attainment of your goal will mean to you.
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Belief is the back-up system of desire. It keep the fires of enthusiasm burning and makes us continually strive to get nearer the goal attainment. Faith can truly move mountains; the mountains of fear, inferiority, worry and low self esteem - 'the success killers'!
Once a goal is firmly fixed in mind and our desire-force is hurtling us toward seemingly insurmountable obstacles, the firm belief that we can gain a favourable outcome can spur us on to victory. When the mind has been manipulated to reflect this state, wonderful physical results can ensue, producing symptoms of success in our lives in every area imaginable.
Although many can attest to the power of belief and to the wondrous accomplishments that were achieved through nothing else except faith, it still remains that many individuals find it hard to believe that a positive outcome will be forthcoming when they are faced with momentous opposition. Whether the opposition is mental or physical the fact that nothing seems to be going right and everything seems to be wrong is enough for even the strongest of us to 'throw in the towel'. But it is in these very situations that faith can conquer all. Faith in yourself, what you are doing and belief that that your objective will be reached.
There are some who bemoan "easier said than done". This is exactly the kind of mental attitude that sustains the problems that they are trying to eradicate. If your belief power is not apparent, take hope for it can be acquired.
Each morning and night recite your intentions from a written list of your goals. Voice your belief in your own abilities. Tell yourself that in due course you will be successful. As you go about your daily affairs reflect as often as possible on your goals and affirm that they are yours now. Fool your mind into believing it and you will see your world reflect it!
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Having decided upon your goal and being determined to build your faith you need to give your desire-force a 'vehicle' through which it may materialize. This 'vehicle' will take the form of a definite plan of action.
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