Panel Majority: Apprendi "No Longer . . . Legitimate Basis for Appeal" -- Concurrence: That's Dicta

United States v. Pineda-Arrellano, No. 06-41156 (5th Cir. July 17, 2007) (Jones, Jolly; Dennis, concurring)

As hundreds, if not thousands, of defendants have done before him, Pineda challenged his sentence for illegal reentry, arguing that 8 U.S.C. § 1326(b)'s treatment of a prior conviction as a sentencing factor, rather than an element of an aggravated offense, is unconstitutional in light of Appendi v. New Jersey. He acknolwedged that his argument is foreclosed by Almendarez-Torres v. United States, but raised the issue to preserve it for possible review in the Supreme Court, given the fact that a majority of the current members of the Court think Almendarez-Torres was wrongly decided. Typically the Fifth Circuit will simply affirm these sentences on the authority of Almendarez-Torres, pointing out that it's up to the Supreme Court to overrule its own precedent.

This one's a little different. Make that a LOT different. The court doesn't simply affirm Pineda's sentence; the panel majority "take[s the] opportunity to state that this issue no longer serves as a legitimate basis for appeal." (emphasis added). Although not actually using the word "frivolous," the majority likens it to arguments against the constitutionality of the federal income tax, and sternly warns that defense counsel who continue to raise this issue on behalf of their clients risk "damag[ing] their credibility with this court . . . ."

According to the panel majority, "a majority of the Supreme Court has reaffirmed Almendarez-Torres" in its recent decision in James v. United States, which involved various challenges to an Armed Career Criminal Act enhancement. The opinion quotes a portion of footnote 8 from James, in which the Court, citing Almendarez-Torres, said that "we have held that prior convictions need not be treated as an element of the offense for Sixth Amendment purposes." It then concludes that "[b]ecause the Supreme Court treats Almendarez-Torres as binding precedent, Pineda's argument is fully foreclosed from further debate." (emphasis added). The opinion goes on to say that it's not an issue that defense counsel really want to win anyway:

[F]ew issues have less merit for a defendant than the potential overruling of Almendarez-Torres — and defense counsel are well aware of this. If Almendarez-Torres were overruled based on Apprendi, prior felony crimes that could serve as the basis for sentence enhancements would have to be proven to a jury beyond a reasonable doubt. No defendant wants such an issue before the jury! The carefully drafted restrictions on evidentiary admission of prior offenses (FED. R. EVID. 404(b)) emphasize the inherent prejudice in placing a defendant’s criminal record before a jury.

The opinion concludes with its warning to defense counsel:

One might ask, then, why so many defendants in this circuit have pursued reconsideration of Almendarez-Torres. Probably because, like the mountain, it’s there, and it doesn’t fit with the logic of Apprendi. Defense counsel may also perceive some marginal tactical benefit in placing any roadblock in the way of expeditious conviction or punishment. No matter what the underlying rationale may have been for challenging Almendarez-Torres “to preserve the issue for further review,” it is time to admit that the Supreme Court has spoken. 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.

Judge Dennis writes a lengthy opinion concurring in the judgment, on the authority of Almendarez-Torres, but vehemently disagreeing with the rest of the majority opinion, attacking it on three main fronts. First, he characaterizes the majority's statement that Apprendi "no longer serves as a legitimate basis for appeal" as dictum, since the outcome is controlled by Almendarez-Torres.

Second, he charges that the majority is acting ultra vires, as there is no constitutional or statutory provision that allows "a federal Court of Appeals to issue an advisory in advance of filings that it will, in the future, view with disfavor a certain kind of appeal or argument by a defendant in a federal criminal case."

Third, Judge Dennis explains that the issue of whether Almendarez-Torres should be overruled in light of Apprendi is not frivolous at all. The question is not, as the majority seems to see it, whether the Supreme Court is likely to ever overrule Almendarez-Torres; instead, frivolousness depends "on whether the appellant's argument has a rational basis in law and fact." By that standard, the issue is not frivolous. After recounting the various positions taken by individual justices in Apprendi, Shepard, and Rangel-Reyes, Judge Dennis points out that "no justice has ever argued that [Almendarez-Torres and Apprendi] are based on intrinsically compatible rationales or that they can be reconciled logically in any principled way."

Consequently, it is not unreasonable or irrational to contend that since only the Supreme Court can resolve the Almendarez-Torres/Apprendi conflict in principle, there will continue to be a rational basis for arguing for or against the viability of Almendarez-Torres until that conflict has been squarely addressed and resolved by overruling Almendarez-Torres, declaring it stare decisis, or overruling Apprendi. Each view was rationally argued by the Justices in Apprendi and can still be so argued by litigants in criminal cases. We need go back only a month or so in the Supreme Court’s recently ended term to see that even long standing precedents can yield to rational but unlikely-to-succeed arguments, and that the incidence of these waxes with each change in the court’s composition, which in our world of mortals can occur at any time.

What's more, according to Judge Dennis, footnote 8 in the Supreme Court's decision in James was dictum, and not part of the holding as the panel majority believes, because the ongoing vitality of Almendarez-Torres wasn't even at issue in the case. Unlike the illegal reentry statute, the ACCA makes the prior conviction an element of the offense, and James admitted his prior conviction as part of his guilty plea. For that reason, the "five Justices[] who made up the Apprendi majority, [and who] are the only ones who care strongly about whether Almendarez-Torres continues as an exception in Apprendi[,]" had no reason to take issue with the dictum in footnote 8.

So how are defense counsel supposed to navigate the treacherous straits of Pineda-Orellana? Sadly, history isn't a very helpful guide in this instance. About the only thing you can say for sure is that this opinion is not likely to be the last word on the subject. En banc or panel rehearing seems likely, and I wouldn't rule out a writ of certiorari if this decision stands. (Who knows, this could be the vehicle that finally gets the Supreme Court to resolve this issue once and for all.)