A long time ago (after Apprendi) we argued that, although Apprendi left a "prior conviction exception," that exception should be limited to the fact of the prior conviction, not other facts proved by extrinsic evidence about the prior conviction.
A common example of this is proof of the prior/nonperson nature of pre-1993 burglary convictions in Kansas. Before 1993, it didn't matter whether a burglary was of a residence or just some other building. After 1993, it makes a big difference in criminal history (burglary of a residence is a person felony, which is much worse for criminal history purposes). So how do we count pre-1993 convictions today? The statute says the judge looks back at the surrounding facts of the prior burglary-if it was of a residence classify it as a person felony. The problem, is that this finding requires determination of facts about the prior conviction, not just the fact of the prior conviction. Often times court services officers simply brought in charging documents specified burglary of a "home" or other extrinsic evidence But that was merely surplusage at the time--it was not a well-pleaded fact.
We raised this after Apprendi with no success in many cases and some have continued to raise it without success. But look at this language from Descamps discussing how the federal court would classify a prior California burglary conviction under the ACCA at page 14 of the majority opinion:
Similarly, consider
(though Aguila-Montes did not) the categorical approach’s Sixth
Amendment underpinnings. We have 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.” Apprendi v. New Jersey, 530 U. S. 466, 490
(2000). Under ACCA, the court’s finding of a predicate offense indisputably
increases the maximum penalty. Accordingly, that finding would(at the least) raise
serious Sixth Amendment concerns if it went beyond merely identifying a prior
conviction. Those concerns, we recognized in Shepard, counsel against
allowing a sentencing court to “make a disputed” determination “about what the
defendant and state judge must haveunderstood as the factual basis of the prior
plea,” or what the jury in a prior trial must have accepted as the theory of
the crime. 544 U. S., at 25 (plurality opinion); see id., at 28 (THOMAS, J., concurring in part and concurring in
judgment) (stating that such a finding would “giv[e] rise to constitutional
error, not doubt”). Hence our insistence on the categorical approach.
Yet again, the Ninth Circuit’s ruling
flouts our reasoning—here, by extending judicial factfinding beyond the recognition
of a prior conviction. Our modified categorical approach merely assists the
sentencing court in identifying the defendant’s crime of conviction, as we
have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes
the court to try to discern what a trial showed, or a plea proceeding revealed,
about the defendant’s underlying conduct. See Aguila-Montes, 655 F. 3d,
at 937. And there’s the constitutional rub. 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 legally extraneous circumstances. See, e.g., Richardson v.
United States, 526 U. S. 813, 817 (1999). Similarly, as Shepard indicated,
when a defendant pleads guilty to a crime, he waives his right to a jury
determination of only that offense’s elements; whatever he says, or fails to
say, about superfluous facts cannot license a later sentencing court to impose
extra punishment. See 544 U. S., at 24–26 (plurality opinion). So when the
District Court here enhanced Descamps’ sentence, based on his supposed acquiescence
to a prosecutorial statement (that he “broke and entered”) irrelevant to the
crime charged, the court did just what we have said it cannot: rely on its own
finding about a non-elemental fact to increase a defendant’s maximum sentence.
This seems right on point. If a judge has to look beyond the statute to figure out something about a prior conviction, Apprendi applies.
So I think you should be object to any pre-1993 burglary conviction being scored as a person felony. Because there is no constitutional mechanism to allow juries to make these findings, all pre-1993 prior burglary convictions should be scored as nonperson.
This is just one example. There are probably others. Classification of out of state convictions (including whether out of state DUI convictions are equivalent to Kansas DUI convictions)? Predicate offenses under many statutes? Whether a prior conviction involved sexual motivation? Basically, any time the judge is finding facts about a prior conviction, not just the fact of the prior conviction, you could (and should) argue that Apprendi applies.
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