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Guidelines Analysis

Although the court rejected Schlifer’s argument concerning the Armed Career Criminal Act, attorneys should continue to make similar objections to preserve them for review.

While there is no reason to think that the Supreme Court will change the core holding that "the fact of a prior conviction" may be found by a judge, rather than a jury, "facts about a prior conviction" are another story.

The court wrote in the case at bar, "Schlifer cites no authority in support of his argument that, although ‘the fact of a prior conviction’ may be found by a judge by the preponderance of the evidence, the factors that bear on that determination must be proved beyond a reasonable doubt."

However, such authority can be found in Shepard v. U.S., 125 S.Ct. 1254, 1262-1263 (2005), which the court acknowledged calls Almendarez-Torres v. U.S., 523 U.S. 224 (1998), into question. The court wrote, "while the disputed fact here can be described as a fact about a prior conviction, it is too far removed from the conclusive significance of a prior judicial record, and too much like the findings subject to Jones and Apprendi to say that Almendarez-Torres clearly authorizes a judge to resolve the dispute (emphasis added)."

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The issue in Shepard was whether a judge can look to police reports to determine whether a generic state court burglary conviction counts as a "burglary" as that term is defined in the ACCA. The court held it could not, although the case produced no majority opinion. Nevertheless, the above quote provides sufficient persuasive authority to make and preserve a nonfrivolous argument.

In addition, an Eleventh Circuit decision issued the day before the opinion in the case at bar may provide support, as well, U.S. v. Orduno-Mireles, No. 04-12630, 2005 WL 768134 (11th Cir., Apr. 6, 2005). In footnote 3 of the opinion, the court denied the defendant’s Shepard-based argument, reciting the above-quoted passage from Shepard, and noting that the defendant did not contend that the district court resolved any factual disputes related to the prior convictions.

It can be argued that, it is implicit in the Eleventh Circuit’s holding that, if the defendant had actually pointed to some factual dispute about the prior conviction, rather than its existence, a Sixth Amendment problem would have been presented.

– David Ziemer

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David Ziemer can be reached by email.

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