BLOG BULLETS:

• There’s a good argument that whether prior offenses were “committed on occasions different from one another” for purposes of the ACCA is a fact that’s subject to Apprendirequirements and so can’t be decided by a judge at sentencing.
• The courts of appeals have rejected this argument, but the controlling cases in some circuits, including the Ninth, may be limited to offenses committed on different dates and/or convictions based on plea rather than trial and/or may be subject to reconsideration in light of the reasoning inDescamps.
• The issue is also potentially more “cert-worthy” than many, so you should consider preserving it even if you can’t overcome or distinguish the existing precedent in your circuit.

NOW THE BLOG:

I left off last week saying there was another angle on the question of deciding when multiple prior convictions count as one under the ACCA. Applying the “committed on occasions different from one another” provision of the statute – or, as the cases have characterized it, the “separate criminal episodes” requirement – raises both Apprendi questions about who gets to decide this question and Descamps questions about how it gets decided.

What I find particularly interesting – but where the case law creates an uphill battle for us – is the Apprendi question. Remember that Apprendi establishes the general rule that any fact which increases a sentence must be charged in a charging document and found by a jury beyond a reasonable doubt. This doesn’t apply to ACCA predicate convictions only becauseApprendi preserved – at least for the time being – what it labeled an “exceptional departure” from this general rule,Apprendi v. New Jersey, 530 U.S. 466, 487 (2000), which was established in Almendarez-Torres v. United States, 523 U.S. 224 (1998), for “the fact of a prior conviction,” Apprendi, 530 U.S. at 490. But cf. Apprendi, 530 U.S. at 489 (acknowledging that “it is arguable that Almendarez-Torres in fact was incorrectly decided”); id. at 518-21 (Thomas, J., concurring) (arguing thatAlmendarez-Torres was incorrectly decided).

But is “committed on occasions different from one another” a “fact of a prior conviction” (emphasis added), or is it a factabout a prior conviction? Judge Wilkins, the first chairman of the Sentencing Commission, suggested precisely this distinction in a dissenting opinion in United States v. Thompson, 421 F.3d 278 (4th Cir. 2005). In response to the majority’s characterization of offense dates alleged in charging documents as part of the facts of the prior convictions that showed the offenses were “committed on occasions different from one another,” Judge Wilkins stated that “in my view it is a fact ‘about a prior conviction.’” Id. at 292 (Wilkins, J., dissenting) (quotingShepard v. United States, 544 U.S. 13, 25 (2005)) (emphasis added in Thompson).

Judge Wilkins then explained why the distinction “is not merely a matter of semantics.” Thompson, 421 F.3d at 292.

Although a defendant is entitled to a jury trial on the question of whether he committed a particular crime, in few, if any cases is a jury required to find that the offense occurred on a particular date. Thus, the protections that the Supreme Court identified as critical to the “fact of a prior conviction” are not customarily afforded a defendant with regard to the date that a crime was committed.

Id. at 292-93 (footnotes omitted).

Judge Wilkins’s reasoning reflects the rationale the Supreme Court has given for the Almendarez-Torres exception. That rationale, as expressed in Apprendi, is that “there is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof.” Id., 530 U.S. at 496, quoted in Thompson, 421 F.3d at 292 (Wilkins, J., dissenting). As expressed in the earlier case of Jones v. United States, 526 U.S. 227 (1999), “a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees.” Id. at 249, quoted in Thompson, 421 F.3d at 292 (Wilkins, J., dissenting).

This will rarely, if ever, be true of the facts on which a “committed on occasions different from one another” finding is based. To begin, Judge Wilkins is correct that even the dates of the offenses will generally not have been subject to the protections on which Apprendi and Jones based approval of the “fact of a prior conviction” exception. Most charging documents allege that the offense in question was committed not simply “on” a particular date, but “on or about” the date. And juries are usually instructed that this “on or about” allegation means they do not have to make a finding that the offense was committed on the particular date alleged in the charging document but only that the offense was committed on a date “reasonably near” that date. See, e.g., United States v. Casterline, 103 F.3d 76, 78 (9th Cir. 1996). See also United States v. Alviso, 152 F.3d 1195, 1197 (9th Cir. 1998) (no fatal variance where date established by proof was “reasonably near” date alleged in indictment).

It becomes even more problematic when two offenses are committed on the same date. Consider the following factual analysis in United States v. Morris, 293 F.3d 1010 (7th Cir. 2002), finding two “aggravated discharge” offenses committed on the same night to have been “committed on occasions different from one another.”

[T]he two offenses committed by Morris, although close in time and location, involved distinct criminal aggressions from which he had an opportunity to cease and withdraw. . . . Morris shot at victim Derek Kye from his automobile at the corner of 17th and Pine, and then drove away. Kye then ran to his aunt’s home and told his aunt and cousin what had happened. His cousin, Lebaron Pettis, left the home to seek help presumably because they did not have a phone at the house. Pettis ran to 1501 Martin Luther King Drive and was knocking on the door when Morris drove up and fired three shots at Pettis. Pettis escaped injury. Those shooting incidents were similar in nature, but involved different victims at different locations and times. Although they were close in time and proximity, they involved distinct criminal aggressions. Morris had left the scene of the first incident, and that was a complete criminal act at that time. He certainly had the opportunity at that time to drive away from the scene and cease his criminal actions. Instead, he chose to drive back and to initiate an additional criminal aggression, this time shooting at Pettis.

Id. at 1014. How likely is it that a jury was required to find all of these facts beyond a reasonable doubt? Or that the defendant was required to admit them in a plea?

Allowing findings of such facts to support an enhanced sentence is exactly what Apprendi and its progeny do not allow. As the Supreme Court explained in strictly limiting the “modified categorical approach” in Descamps v. United States, 133 S. Ct. 2276 (2013):

The Sixth Amendment contemplates that a jury – not a sentencing court – will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense – as distinct from amplifying but extraneous circumstances.

Id. at 2288. Descamps also pointed out that “facts” other than elements of the offense “may be downright wrong,” id. at 2289, and explained why that might be the case.

A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense – and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.

Id. This could easily be true of both allegations of specific offense dates that have nothing to do with guilt and any or all of the facts like those in the passage from the Morris case that’s quoted above. See also Kirkland v. United States, 687 F.3d 878, 887 (7th Cir. 2012) (example of actual after-the-fact dispute in ACCA case in which defendant claimed that victim of robbery count in prior indictment was same person as victim of burglary count).

Unfortunately, no court of appeals has yet accepted such an argument. One of the adverse court of appeals cases is theMorris opinion just quoted. Other courts of appeals have all taken a similar view, at least when the records reflect different dates for the prior offenses. The Ninth Circuit opinion is United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc), in which the court cited multiple decisions from other circuits, includingMorris, and reasoned as follows:

[W]e reject Defendant’s assertion that the dates of his prior convictions are not a part of the “fact” of his prior convictions. When, as here, the face of the document demonstrating Defendant’s prior conviction includes the date of the offense, the date is just as much a part of the plea as is the nature of the offense described on the face of the document. (Footnote omitted.) Thus, the dates of Defendant’s prior convictions were properly before the district court.

Id. at 847. See also id. at 847 n.1 (collecting cases from other circuits).

Note at least two qualifications in the Grisel opinion, however. First, note the qualifying phrase, “[w]hen . . . the face of the document demonstrating Defendant’s prior conviction includes the date of the offense.” What if the face or faces of the document or documents include identical dates for two of the offenses? Does Grisel apply to the sort of detailed facts recited inMorris – that are presumably not on “the face of the document”? Will the court really hold that those facts as well are “part of the plea”? After what the Supreme Court said in Descamps about the reasons a defendant might not bother contesting them even if they were, to use Descamps’s words, “downright wrong”? And speaking of Descamps, is it an intervening Supreme Court decision that makes Grisel no longer good law? (See the post titled “What Fury Hath Descamps Wrought?” in the August 2013 link at the right suggesting this possible impact of Descamps on other Ninth Circuit cases under the “clearly irreconcilable” test of Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc).)

Second, note the “part of the plea” phrase in Grisel. What if the conviction wasn’t the product of a plea, but the product of a verdict in a jury trial? And what if the jury was instructed, as juries usually are, that they only needed to find dates “reasonably near” the dates in the indictment, not the exact dates? Aren’t the “fact[s] of conviction” then just dates “reasonably near” the dates alleged in the indictment rather than the exact dates alleged?

Finally, the courts of appeals aren’t the last word. The last word is the Supreme Court, whose collection of ACCA and Apprendicases makes clear it’s more than willing to consider important ACCA and Apprendi issues. I’d submit this issue is a good one that we should be preserving and pursuing, especially in cases that have the distinguishing characteristics suggested in the preceding two paragraphs.

Plus, there’s one more angle. More on that in next week’s post.