New article provides interesting attack on prior drug conviction enhancements in federal sentencing

Sarah French Russell, a former Assistant Federal Public Defender for the District of Connecticut, has authored a new article titled "Rethinking Recidivist Enhancements: The Role of Prior Drug Convictions in Federal Sentencing." The article discusses why enhancements based on prior drug convictions are not really sound public policy (providing ammunition for convincing the court to disregard certain enhancements under the USSG), but it also provides details on how attorneys in the District of Connecticut have used Shepard v. United States to keep prior drug convictions from triggering certain "mandatory" sentencing enhancements (ACCA and 851 enhancements):

At issue in Shepard was whether a state burglary conviction triggered the Armed Career Criminal Act (“ACCA”), a federal recidivist statute. The ACCA, like most federal recidivist statutes, uses federal definitions for its triggering offenses. Therefore, in order to qualify for the ACCA, the defendant’s prior conduct must have satisfied the federal definition of burglary; a state’s decision to label an offense a “burglary” does not necessarily suffice. Similar circumstances arise with state drug statues, which vary widely and often do not correspond with federal enhancements. In Shepard, the Court placed strict limits on the types of evidence a federal sentencing court may consider in determining whether a defendant’s prior conviction involved conduct triggering an enhancement. Because of the Sixth Amendment jury trial right, a sentencing judge may not assume the role of a jury and conduct an open factual inquiry about a defendant’s prior conduct. Rather, an enhancement applies only when a defendant admitted in a prior plea — or a jury found — the facts supporting the enhancement.

The Shepard analysis allocates the burden of proof in a way that, in many cases, makes it difficult for prosecutors to prove that a defendant’s prior conduct fits the federal enhancement. This can be an impossible task if records from the prior conviction are unavailable or when the records do not contain factual admissions by the defendant. In practice, rigorous application of Shepard allows judges to avoid applying mandatory sentencing enhancements in many cases and, thus, gives them greater discretion to craft sentences. As a result, Shepard, like Booker, allows judges to think critically about whether enhancements based on prior drug convictions actually serve any sentencing purpose. Judges may still decide to increase a sentence based on a defendant’s record ⎯ and indeed remain free to impose a substantial increase ⎯ but judges are no longer required to do so.

In Part III of the article, Russell explains the method for attacking these enhancements that are based on prior drug convictions. First, you determine whether the state statute (for the prior conviction) is broader than the federal enhancement (does the state statute criminalize a broader set of substances or conduct than the substances or conduct that trigger the federal enhancement?). Then, "[u]nder Shepard, if a discrepancy exists, the government bears the burden of producing documents from the prior case and establishing that the defendant admitted or the jury found that the offense involved conduct triggering the enhancement. The government often does not meet this burden." Russell also cites caselaw from the Second Circuit where the court has held that certain enhancements did not apply.

We have often discussed the importance of challenging prior convictions in state court, but it is even more important in federal court - the prior conviction could mean a life sentence for the client. Thus, for anyone practicing in federal courts, this article is a must read. Thanks to Doug Berman for bringing this article to my attention.