United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT July 17, 2007
Charles R. Fulbruge III Clerk No. 06-41156 Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
AGUSTIN PINEDA-ARRELLANO,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of Texas
Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
By EDITH H. JONES, Chief Judge:
Agustin Pineda-Arrellano (“Pineda”) appeals his guilty
plea conviction and sentence for illegal reentry. Pineda argues
that the felony and aggravated felony provisions of 8 U.S.C.
§ 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi
v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because the
courts treat a defendant’s prior felony conviction as a statutory
ground for a sentencing enhancement rather than as an element of
the offense, which, pursuant to the Sixth Amendment, should be
presented to the jury. Pineda’s case is one of hundreds, if not
thousands, in this circuit in which counsel have raised this constitutional challenge. We take this opportunity to state that
this issue no longer serves as a legitimate basis for appeal.
Pineda makes the familiar contention that Almendarez-
Torres v. United States, 523 U.S. 224, 235, 118 S. Ct. 1219 (1998),
was incorrectly decided and that a majority of the Supreme Court
would overrule it in light of the subsequent decision in Apprendi.
We have repeatedly rejected such arguments on the basis that
Almendarez-Torres remains binding precedent until and unless it is
officially overruled by the Supreme Court. See, e.g., United
States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Pineda
properly concedes that his argument is foreclosed by Almendarez-
Torres and circuit precedent, but he nevertheless raised it as his
sole appellate issue to preserve it for Supreme Court review.
This court has patiently entertained the identical
argument in countless cases. Now, however, a majority of the
Supreme Court has reaffirmed Almendarez-Torres in James v. United
States, __ U.S. __, 127 S. Ct. 1586 (2007), stating that “we have
held that prior convictions need not be treated as an element of
the offense for Sixth Amendment purposes.” Id. at __, 127 S. Ct.
at 1600 n.8 (citing Almendarez-Torres). Because the Supreme Court
treats Almendarez-Torres as binding precedent, Pineda’s argument is
fully foreclosed from further debate. That James interpreted the
Armed Career Criminal Act is not a distinguishing feature from the
illegal reentry statute under which this appellant was convicted,
because both statutes enhance a defendant’s punishment on account
2 of certain prior felony convictions. Moreover, the Supreme Court’s
acknowledgment in footnote eight that James stipulated to a prior
offense does not detract from the force of its simultaneous
reliance on Almendarez-Torres. We lower courts are not empowered
to deconstruct such clear statements of governing authority by the
Supreme Court. See also United States v. Grisel, __ F.3d __, 2007
WL 1599009, at *1 (9th Cir. June 5, 2007) (en banc) (noting that
Almendarez-Torres has never been overruled but has been applied
repeatedly by the Supreme Court, most recently in James); United
States v. Davis, __ F.3d __, 2007 WL 1438490, at *4 (5th Cir. May
17, 2007) (noting, after James, that the Apprendi Court “explicitly
refrained from overruling Almendarez-Torres”).
The dissent takes issue with our view that James has
closed the book on reconsideration of Almendarez-Torres. The
Supreme Court’s decision is hardly surprising, however. Despite
the dissent’s overstated claim that we are denying future
defendants their appeal rights, few 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
3 a jury. Justice Stevens acknowledged these realities when, pre-
James, he stated that his disagreement with Almendarez-Torres “is
not a sufficient reason for revisiting the issue”:
The denial of a jury trial on the narrow issues of fact concerning a defendant’s prior conviction history . . . will seldom create any significant risk of prejudice to the accused. Accordingly, there is no special justifica- tion for overruling Almendarez-Torres. Moreover, count- less judges in countless cases have relied on Almendarez- Torres in making sentencing determinations. The doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases.
Rangel-Reyes v. United States, -- U.S. --, 126 S. Ct. 2873, 2874
(2006)(statement of Justice Stevens respecting the denial of
petition for writ of certiorari).
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
4 of the federal income tax.1 It would be prudent for appellants and
their counsel not to damage their credibility with this court by
asserting non-debatable arguments.
Based on the foregoing, Pineda’s conviction and sentence
are AFFIRMED.
1 Who doubts that if, instead of receiving hundreds of Almendarez- Torres briefs each year, this court received a similar number of income tax protestor appeals, we would hesitate to limit these meritless filings?
5 DENNIS, Circuit Judge, concurring in affirming the conviction and
sentence only.
I concur only in the majority’s holding that this court is
bound by the Supreme Court’s decision in Almendarez-Torres v.
United States, 523 U.S. 224 (1998), and that Mr. Pineda’s
conviction and sentence are affirmed. I emphatically do not join
the majority’s various statements regarding the continued validity
of Almendarez-Torres, including especially its assertion that “this
issue no longer serves as a legitimate basis for appeal.” See supra
at 3. The majority’s language amounts only to a dictum that
exceeds the authority of this court and conflicts with decisions of
the Supreme Court.
I.
The majority’s statement that challenges to Almendarez-Torres
“no longer serve[] as a legitimate basis for appeal” is plainly a
dictum, rather than a decision that establishes binding circuit
precedent forbidding the filing of such appeals and arguments. The
majority’s holding simply affirms Mr. Pineda’s conviction and
sentence based on Almendarez-Torres and thus adds no new precedent.
The majority’s statements regarding future appeals challenging
Almendarez-Torres are matters not resolved or determined in its
holding and therefore amount only to dictum. In other words, the
parties in the present case did not join issue on, and the majority
6 did not decide, whether Mr. Pineda could appeal or argue for
reconsideration of Almendarez-Torres. In fact, Mr. Pineda did
appeal and make an argument in brief on that issue. Furthermore,
the government did not object or contest his right to do so;
neither did the majority disallow his appeal or argument. Instead,
the majority opinion acknowledges that he made the argument in
order to preserve his right to ask for relief if the Supreme Court
overrules Almendarez-Torres. Thus, the majority’s dictum statement
referring to the legitimacy of future appeals that seek to overrule
Almendarez-Torres is an independent part of the majority opinion
that does not affect Mr. Pineda’s case in any way. Rather, the
majority, without being requested to do so, simply uses this case
as a convenient vehicle within which to express its opinion on a
matter not resolved or determined by its holding, that is, to
announce its dictum opinion as to the validity of future
Almendarez-Torres challenges.
II.
Moreover, the question of whether we will allow or consider
appeals seeking reconsideration of Almendarez-Torres in the future
is beyond this court’s power to determine, because neither the
Constitution nor the Congress has vested us with the plenary
discretion to choose in advance the kinds of arguments and appeals
7 that we will allow or consider.1 To the contrary, federal law has
made an appeal from a district court’s judgment of conviction in a
criminal case what is, in effect, a matter of right. Coppedge v.
United States, 369 U.S. 438, 441 (1962)(citing 28 U.S.C. §§ 1291,
1294; Fed. R. Crim. P. 37(a)); cf. Carroll v. United States, 354
U.S. 394, 400-401 (1957)).2 Thus, a defendant in a federal
criminal case has a right to have his conviction and sentence
reviewed by a Court of Appeals, and need not petition that court
for an exercise of its discretion to allow him to bring the case
before the court. Coppedge, 369 U.S. at 442; see also Atilus v.
United States, 406 F.2d 694, 697 (5th Cir. 1969) (“[E]very
convicted person has an absolute right to an appeal.”). The only
requirements a defendant must meet for perfecting his appeal are
those expressed as time limitations within which various procedural
steps must be completed.3 Id.
1 Even the Supreme Court, which might have that power, has not to my knowledge issued such a peremptory order. Certainly, it has not with respect to appeals challenging Almendarez-Torres. 2 Section 3742(a), Title 28, U.S.C., establishes a similar right with regard to appeals from the judgment of sentence. Koon v. U.S., 116 S.Ct. 2035, 2045–2048 (1996); see also Charles A. Wright, et al., 15B Federal Practice & Procedure § 3918.8, p. 573 & n.1 (2007). In the Fifth Circuit, we have held that our jurisdiction to review sentencing issues derives from both statutes. United States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006). 3 “First, a timely notice of appeal must be filed in the District Court to confer jurisdiction upon the Court of Appeals over the case.” Coppedge, 369 U.S. at 442 n.3 (citing Fed. R. Crim. P. 37(a); United States v. Robinson, 361 U.S. 220 (1960). “Subsequently, designations of the transcript, a record on appeal and briefs must be filed in the appropriate forum.” Coppedge, 369 U.S. at 442 n.4 (citing Fed. R. Crim. P. 39(c)) (record on appeal to be docketed in Court of Appeals within 40 days of filing of notice of appeal).
8 The majority does not cite, and I have been unable to find,
any statute authorizing 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. Accordingly, the majority has, in my
opinion, assumed a sweeping preemptive and discretionary power that
neither the Constitution nor the Congress has vested in this court.
This conclusion is confirmed by the fact that Congress has,
under the in forma pauperis law, 28 U.S.C. § 1915, given federal
courts narrowly defined authority to dismiss a case only after it
has been filed, and only if the court determines that a statutorily
specified grounds for dismissal exists, e.g., that the action or
appeal is frivolous or malicious. In particular, 28 U.S.C. §
1915(e)(2) provides that a federal court shall dismiss a case at
any time if it determines that “(A) the allegation of poverty is
untrue; or (B) the action or appeal – (i) is frivolous or
malicious; (ii) fails to state a claim on which relief may be
granted; or (iii)seeks monetary relief against a defendant who is
immune from such relief.” 28 U.S.C. § 1915(e)(2).4 Thus, under §
1915(e)(2), a federal court is authorized and required to dismiss
the case only after making an individualized determination that one
of the statutory grounds for dismissal exists in that particular
4 It is also worth noting that § 1915(g), known as the three-strike rule, applies only to a prisoner bringing a civil action or appealing a judgment in a civil action or proceeding and therefore has no bearing on the dismissal of criminal appeals.
9 case. Consequently, neither § 1915(e)(2) - nor any other authority
- empowers a federal court of appeals to do what the majority, in
effect, does here, that is, to proclaim that, in the future, all
criminal defendants should not appeal or present argument on a
particular issue of substantive law.
Moreover, the majority’s dictum today does what the Supreme
Court has expressly said we may not do - presume to decide for the
Court an issue that is exclusively within its prerogative. That
is, instead of simply deciding as we have in the past that we are
bound by Almendarez-Torres as an exception to the principle of
Apprendi until the inconsistency is squarely addressed and resolved
by the Supreme Court, the majority undertakes to treat Almendarez-
Torres’s validity as inarguable as if it had been declared stare
decisis. Such an approach is overambitious: as Justice Thomas has
recently observed, it falls to the Supreme Court, and only the
Supreme Court, to resolve the issue. See Rangel-Reyes v. United
States, 126 S.Ct. 2873, 2874 (2006) (dissent from denial of
certiorari) (“The Court's duty to resolve this matter is
particularly compelling, because we are the only court authorized
to do so.”).
The majority’s reliance upon unspecified and uncited federal
income tax collection cases is badly misplaced. Even assuming that
the majority’s unnamed cases were decided correctly, it is
difficult to see how, as civil cases, they could be authority for
10 the majority’s peremptory disallowance of federal criminal appeals
of right. At stake in every serious criminal case
are constitutional protections of surpassing importance:
the proscription of any deprivation of liberty without
due process of law, Amdt. 14, and the guarantee that [i]n
all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury,
Amdt. 6. Taken together, these rights indisputably
entitle a criminal defendant to a jury determination that
[he] is guilty of every element of the crime with which
he is charged, beyond a reasonable doubt.
Apprendi v. New Jersey 530 U.S. 466, 476-77 (2000)(citing United
States v. Gaudin, 515 U.S. 506, 510 (1995); Sullivan v. Louisiana,
508 U.S. 275, 278 (1993); In re Winship, 397 U.S. 358, 364 (1970))
(footnote and internal quotations omitted). The majority doesn’t
even try to explain how the anonymous civil tax collection cases to
which it refers are in anyway apposite.
III.
For the foregoing reasons, I respectfully suggest that the
majority should withdraw its misguided dictum. If the majority
chooses to publish the dictum, however, government attorneys and
defense counsel should not take it as having any legal or
precedential effect upon proceedings within the context of 28
11 U.S.C. § 1915 for several reasons5: (1) this case is not subject to
the in forma pauperis rules of 28 U.S.C. § 1915 because Mr. Pineda
did not proceed in forma pauperis here; (2) neither party has
raised, briefed or even mentioned the subject of frivolousness
under § 1915 in this case; and (3) the majority did not consider,
address, or even mention the subject of frivolousness in its
opinion. Indeed, the majority affirmed Mr. Pineda’s conviction and
sentence on the merits, rather than dismissing his appeal in this
case. Finally, as discussed above, the majority’s dictum is
apparently based on the misguided notion that we have discretionary
power, similar to that of the Supreme Court, to grant or deny what
are, in effect, appeals of right in federal criminal cases
according to our own standards and reasons, rather than those
provided by Congress and the Supreme Court.
Moreover, if this court is called upon to decide whether it is
frivolous under 28 U.S.C. § 1915 for a defendant in a particular
federal criminal case to appeal his conviction or sentence based
solely on an argument to overrule Almendarez-Torres as
5 Contrary to the majority’s misreading, I do not merely disagree with the majority on whether James "closed the book" on reconsideration of Almendarez- Torres. Rather, as the two preceding sections make clear, I disagree with the majority's unauthorized attempt to predict what the Supreme Court will do in respect to Almendarez-Torres and even more strongly with the majority's ultra vires statements discouraging appeals of right fully authorized by Congressional acts. In this part of my analysis, I address only the possible misguided motions to dismiss appeals as frivolous under 28 U.S.C. § 1915 that may be filed in response to the majority's dictum and ultra vires statements. Until the Almendarez-Torres issue is squarely addressed by a Supreme Court majority, I believe there is a rational, non-frivolous basis to appeal and challenge the holding in that case. Unlike, the majority, I do not presume to make book on future Supreme Court decisions.
12 intrinsically in conflict with Apprendi and other cases, we must
decide according to the governing rules and standards established
by the Supreme Court precedents. Under those principles,
frivolousness does not depend on the likelihood of the appellant’s
success but on whether the appellant’s argument has a rational
basis in law and fact. As the Supreme Court stated in Coppedge,
Since our statutes and rules make an appeal in a criminal
case a matter of right, the burden of showing that that
right has been abused through the prosecution of
frivolous litigation should, at all times, be on the
party making the suggestion of frivolity. It is not the
burden of the petitioner to show that his appeal has
merit, in the sense that he is bound, or even likely, to
prevail ultimately. He is to be heard, as is any
appellant in a criminal case, if he makes a rational
argument on the law or facts.
Coppedge, 369 U.S. at 447-448.(emphasis added).
Further, in Anders, 386 U.S. at 744, the Supreme Court stated
that an appeal on a matter of law is frivolous where “[none] of the
legal points [are] arguable on their merits.” Also, in Neitzke v.
Williams, 490 U.S. 319 (1989), the Supreme Court had occasion to
construe the meaning of “frivolous” under former § 1915(d). The
Court began by noting that “[t]he Courts of Appeals have, quite
correctly in our view, generally adopted as formulae for evaluating
13 frivolousness under § 1915(d) close variants of the definition of
legal frivolousness which we articulated in the Sixth Amendment
case of Anders v. California.” Neitzke, 490 U.S. at 325. The
Neitzke Court went on to state that “a complaint, containing as it
does both factual allegations and legal conclusions, is frivolous
where it lacks an arguable basis either in law or in fact.” Id. at
325. The Court observed that the in forma pauperis statute
“accords judges . . . the authority to dismiss a claim based on an
indisputably meritless legal theory.” Id. at 328.
If and when we are confronted with a motion to dismiss an
individual appeal challenging Almendarez-Torres as frivolous under
28 U.S.C. § 1915 (e)(B)(i), we will be required to decide the
question by applying the principles established by the Supreme
Court. Thus, the issue in such a case will probably hinge on
whether the argument to overrule that challenge or argument is
based on an “indisputably a meritless legal theory,” “lack[s] an
arguable basis...in law,” and is altogether not a “rational
argument.” In deciding such a case we are required to bear in mind
that a tie must go to the appellant, because “our statutes and
rules make an appeal in a criminal case a matter of right, [and]
the burden of showing that that right has been abused through the
prosecution of frivolous litigation should, at all times, be on the
party making the suggestion of frivolity.” Coppedge, 369 U.S. at
447-48.
14 It is, of course, not appropriate to decide here whether an
argument to overrule Almendarez-Torres can be declared frivolous
under 28 U.S.C. § 1915, because this case does not present that
question and we have not considered any briefs or oral argument on
the subject. But it should be pointed out generally, however, that
frivolousness will not turn on the appellant’s likelihood of
ultimate success or on the odds against the Supreme Court
overruling its challenged precedent, but on whether it is possible
to make a rational argument for its reconsideration, overruling or
limitation. If likelihood of ultimate success by an individual
litigant in the Supreme Court were the criterion, Courts of Appeals
could dismiss as frivolous substantial portions of their dockets,
in light of the small chance that certiorari will be granted and
result in a decision in any given case. Put in that light, an
argument that the Supreme Court should reconsider Almendarez-Torres
does not on its face appear to be irrational or an indisputably
meritless legal theory.
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the three
blocs of Justices argued for three conflicting rationales. Justice
Stevens, writing the controlling plurality opinion joined in by
Justices Ginsburg and Souter, held that “[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Id. at 490. In doing
15 so, he expressly let stand the Court’s decision in
Almendarez-Torres, “[e]ven though it is arguable that [it] was
incorrectly decided,” and that it was inconsistent with the main
underlying principle of its decision.6
Justice Thomas, for himself and Justice Scalia, joined the
opinion of the Court but wrote separately to explain his view that
“the Constitution requires a broader rule than the Court adopts.”
Id. at 498. The broader rule espoused by Justices Thomas and
Scalia is the same principle underlying Justice Stevens’s holding
without the exception allowing Almendarez-Torres to stand. “[T]his
traditional understanding-that a “crime” includes every fact that
is by law a basis for imposing or increasing punishment-continued
well into the 20th-century, at least until the middle of the
century....Today's decision, far from being a sharp break with the
past, marks nothing more than a return to the status quo ante-the
status quo that reflected the original meaning of the Fifth and
Sixth Amendments.” Id. at 517.
A third view was expressed by the dissenters: Chief Justice
Rehnquist, and Justices O’Connor, Kennedy, and Breyer. Their view
was that the majority’s opinions were inconsistent with the Court’s
6 Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, Apprendi does not contest the decision's validity and we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence. Id. at 489-89 (footnote omitted).
16 precedents and that given its “previous approval of — and the
significant history in this country of — discretionary sentencing
by judges, it is difficult to understand how the Fifth, Sixth, and
Fourteenth Amendments could possibly require the Court’s . . .
rule.” Id. at 544.
Thus, the Justices in Apprendi divided according to their
three conflicting but rational viewpoints as to the proper
interpretation of the Constitutional requirements of a jury trial
and proof beyond a reasonable doubt. The logical or rational
disconnect between the holding in Almendarez-Torres and the basic
underlying principles of Apprendi and subsequent cases were clear
in the Justices’ opinions and cannot be denied. As late as 2005,
Justice Thomas repeated his view that Almendarez-Torres “has been
eroded by this Court's subsequent Sixth Amendment jurisprudence,
and a majority of the Court now recognizes that Almendarez-Torres
was wrongly decided.” Shepard v. United States, 544 U.S. 13, 27
(2005).
Indeed, no justice has ever argued that the two decisions are
based on intrinsically compatible rationales or that they can be
reconciled logically in any principled way. Justice Stevens
recently indicated, in the context of denying certiorari, that he
continued to see the two decisions as being in conflict but that he
might vote to uphold Almendarez-Torres based on the doctrine of
stare decisis. Rangel-Reyes v. United States, 126 S.Ct. 2873, 2874
17 (2006). Justice Thomas, on the same subject, argued forcefully
that Almendarez-Torres should be overruled:
The Court's duty to resolve this matter is particularly
compelling, because we are the only court authorized to
do so. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118
S.Ct. 275, 139 L.Ed.2d 199 (1997) (“[I]t is this Court's
prerogative alone to overrule one of its precedents.”).
And until we do so, countless criminal defendants will be
denied the full protection afforded by the Fifth and
Sixth Amendments, notwithstanding the agreement of a
majority of the Court that this result is
unconstitutional.
Id.
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
18 court’s composition, which in our world of mortals can occur at any
time.
Our previous panels have held consistently that the argument
for reconsidering and correcting Almendarez-Torres is not frivolous
under 28 U.S.C. § 1915. In United States v. Cervantes-Garcia, 260
F.3d 621 (2001) (unpublished, per curiam), the government moved for
dismissal inasmuch as the Appellant had raised as his sole issue an
argument controlled by Almendarez-Torres. Indeed, the appellant
did not claim otherwise; he conceded that Almendarez-Torres was the
controlling authority and foreclosed his argument. Nonetheless, he
raised the argument to protect his right to further review. After
careful consideration, we rejected the government’s argument that
the claim was frivolous under 28 U.S.C. § 1915. We pointed out
that
a member of the Supreme Court that decided
Almendarez-Torres has indicated in a related case that
the decision in Almendarez-Torres was mistaken. See
Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,
2367-80 (2000)(Thomas, J., concurring).
Almendarez-Torres was decided by a 5-4 vote with Justice
Thomas a part of the majority.
Cervantes-Garcia, 260 F.3d at 621. For those reasons we held that
“we reject the contention that Appellant's appeal is frivolous;” we
also rejected the government's motion to dismiss on those grounds.
Id. Instead, we simply concluded that “because it is unmistakably
19 clear that Almendarez-Torres controls the disposition of the case
and we are bound thereby, we summarily affirm the judgment of the
district court in lieu of dismissal of Appellant's appeal.” Id.
Since then, we have consistently held only that Almendarez-Torres
issues are foreclosed on appeal, frequently acknowledging, when we
do so, that the issue is being raised on appeal only to preserve
it. See United States v. Iniguez-Barba, 485 F.3d 790, 790 n.1 (5th
Cir. 2007) (“As [the defendant] properly concedes, this argument is
foreclosed . . . , and he raises the argument only to preserve
it.”); United States v. Ramos-Sanchez, 483 F.3d 400, 404 (5th Cir.
2007) (“[T]he Supreme Court rejected this argument in
Almendarez-Torres v. United States, which we are obligated to
follow.”).
Thus, considered in this perspective, the dictum in footnote
8 of the Supreme Court’s majority opinion in James v. United
States, ___ U.S. ____, 127 S.Ct. 1586 (2007) plainly does not
squarely address or resolve the conflict between Almendarez-Torres
and the Apprendi line of case law. The James footnote, in its
entirety, states:
To the extent that James contends that the simple fact of
his prior conviction was required to be found by a jury,
his position is baseless. James admitted the fact of his
prior conviction in his guilty plea, and in any case, we
have held that prior convictions need not be treated as
an element of the offense for Sixth Amendment purposes.
20 Almendarez-Torres v. United States, 523 U.S. 224, 118
S.Ct. 1219, 140 L.Ed.2d 350 (1998).
127 S.Ct. at 1600, n. 8.
The majority here reads the last phrase of the second sentence
of footnote 8 in isolation and incorrectly treats it as a holding
in the case.7 Instead, it is dictum. James’s central holding was
that the Florida attempted burglary was a “violent felony” under
ACCA. Whether Almendarez-Torres should be overruled or continued
as an exception to the Apprendi principle was not at issue in
James. The reference in footnote 8 to Almendarez-Torres was
unnecessary because James’s position was “baseless” anyway due to
his having admitted his prior conviction charged as an element of
his indictment in his guilty plea.
Moreover, because the survival of Almendarez-Torres was not at
issue in James, its opponents, Justices Scalia and Thomas, and its
proponents, Justices Stevens, Ginsburg and Souter, had no reason to
agree or disagree with the insignificant, peripheral dictum of
footnote 8.(four of these five Justices dissented from the main
holding in James and thus had no reason to take issue with matters
7 The majority also relies on two recent Circuit decisions as support: United States v. Grisel, __ F.3d __, 2007 WL 1599009, at *1 (9th Cir. June 5, 2007) (en banc) (noting that Almendarez-Torres has never been overruled but has been applied repeatedly by the Supreme Court, most recently in James); and United States v. Davis, __ F.3d __, 2007 WL 1438490, at *4 (5th Cir. May 17, 2007) (noting, after James, that the Apprendi Court “explicitly refrained from overruling Almendarez-Torres”). The majority takes these holdings as standing for clear acknowledgment that the Supreme Court will never revisit Almendarez-Torres. I cannot agree. These cases stand, rather, for the unremarkable principle that, until such time as the Supreme Court does reconsider the issue, we are bound to follow Almendarez-Torres as good law.
21 peripheral to it). These five Justices, who made up the Apprendi
majority, are the only ones who care strongly about whether
Almendarez-Torres continues as an exception in Apprendi. The other
Justices in James, who were either dissenters or successors of
dissenters in Apprendi, may care little whether the Almendarez-
Torres exception to Apprendi survives, since they are likely to be
against Apprendi with or without the exception. In sum, any
Justice’s concurrence in or dissent from James’ central holding
involving whether the Florida offense was a crime of violence
signifies nothing about his or her opinion as to whether
Almendarez-Torres should survive or perish.
The majority here also seems to contend that James’ situation
vis à vis the ACCA is completely parallel to that of a defendant
vis à vis the illegal reentry statute at issue in Almendarez-
Torres. This is simply not so. Under the provision of the ACCA at
issue in James, the defendant’s prior conviction is an element of
the offense and must be included in the indictment, so that his
guilty plea to the indictment makes an argument based on
Almendarez-Torres baseless, moot and irrelevant, as it did in Mr.
James’s case. Under the illegal reentry statute, the defendant’s
prior conviction is not an element of the offense, not necessary to
the indictment, and not necessarily included in the indictment.8
8 The majority's argument that the right to a jury trial on an alleged prior conviction invites prejudicial evidence into the main trial and therefore is a negligible or dispensable right is simply a repetition of an argument made for treating recidivism differently as relied upon in Almendarez-Torres. It, of course, has a rational basis; but so does Justice Thomas' counter-argument that
22 Consequently, unlike James, the illegal reentry defendant usually,
if not always, can make a rational and relevant argument that but
for Almendarez-Torres he has been unconstitutionally deprived of
his right to put the government to its proof before a jury and
thereby possibly avoid a substantial enhancement of his sentence.9
For these reasons, I concur in the majority's holding that Mr.
Pineda's conviction and sentence are affirmed, but I respectfully
disagree with its statements and dictum pertaining to the
legitimacy of appeals of right filed in this court by federal
criminal defendants urging the reconsideration and overruling of
Almendarez-Torres.
“this concern, of which earlier courts were well aware, does not make the traditional understanding of what an element is any less applicable to the fact of a prior conviction.” Apprendi, 530 U.S. at 521 (Thomas, J., concurring); see also id. at n. 10. In any event, the resolution of this argument, like that of the larger conflict between the Apprendi principle and Almendarez-Torres, of which it is a part, belongs to the Supreme Court not this court. 9 The majority's reliance on Justice Stevens' statement of his individual reasons respecting the denial of petitions for certiorari in Rangel-Reyes v. United States, 126 S.Ct. 2873 (2006) is misplaced. Justice Stevens' statement for himself alone that "the doctrine of stare decisis provides a sufficient basis for the denial of certiorari in these cases" obviously does not constitute a resolution of the conflict between the Apprendi principle and Almendarez-Torres. Denials of certiorari by the Court do not make law; and, of course, neither does the reason for such denial given by an individual Justice.
23