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Criminal Procedure – right to jury

United States Court of Appeals For the Seventh Circuit


Criminal Procedure – right to jury

A defendant charged with being a felon in possession of a firearm, as an armed career criminal, is not entitled to a jury trial on whether he is an armed career criminal.

“[T]he district judge was empowered to determine whether Elliott committed the burglaries on occasions different from one another. The Supreme Court in Almendarez-Torres held that a defendant’s recidivism is not an element of the offense which must be found by a jury beyond a reasonable doubt, but rather is a sentencing factor that may be found by the sentencing judge, even when recidivism increases the statutory maximum penalty to which the defendant is exposed. 523 U.S. at 239, 243-46, 118 S. Ct. at 1228-29, 1230-32. Almendarez-Torres has remained good law even as the Court in later decisions has recognized a defendant’s right to a jury finding on other factors that expose the defendant to a longer sentence. See Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215 (1999); Apprendi v. New Jersey, supra, 530 U.S. 466, 120 S. Ct. 2348; Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004); United States v. Booker, 543 U.S. 220, 125 S. Ct. 738 (2005); United States v. O’Brien, 130 S. Ct. 2169 (2010). Indeed, each of these cases has expressly cited the fact of a prior conviction as an exception to the rule it stated. Jones, 526 U.S. at 243 n.6, 119 S. Ct. at 1224 n.6; Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63; Blakely, 542 U.S. at 301, 124 S. Ct. at 2536; Booker, 543 U.S. at 244, 125 S. Ct. at 756; O’Brien, 130 S. Ct. at 2174.”


11-2766 U.S. v. Elliott

Appeal from the United States District Court for the Northern District of Indiana, Simon, J., Rovner, J.

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