« Monday Orders | Main | News Scan »

Lesser Includeds and Almendarez-Torres

In Calloway v. Montgomery, No. 07-1148 (USCA7, Jan 14, 2008), Judge Evans has some fun with a murderer who ducked the rap by adopting the unlikely alias of Robert Ducks. It actually worked for 22 years. The opinion deals with two issues: (1) What is the "clearly established" Supreme Court precedent on lesser included offense instructions in noncapital cases? Answer: there isn't any. (2) Does it present an Apprendi problem for a judge to decide which local offense a prior offense from another jurisdiction corresponds to? Answer: no. "Almendarez-Torres still lives."

Posted by Kent Scheidegger on January 14, 2008 01:57 PM |

Comments

I've never understood the purists' objection to the ability to increase a sentence based on the fact of a prior conviction. If a defendant was afforded or waived his jury trial right with respect to the previous conviction, then it seems clear that his jury trial right was vindicated. In addition, I think it hard to say that the Sixth Amendment jury trial right overrides, sub silentio, the ability of a state to give res judicata effect to a criminal conviction for sentencing purposes.

Posted by: federalist [TypeKey Profile Page] | January 14, 2008 03:16 PM

Post a comment

If you return to this page after signing in, click here for instructions.

This is a place for informed discussion of issues related to criminal law and criminal justice policy. Persons who wish to engage in ad hominem attacks, name-calling, profanity, flame wars, and general rudeness are cordially invited to do so somewhere else. For this reason, and to prevent comment spam, commenters are required to register with TypeKey, and individual comments will have to be approved before they are published for your first few comments.