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Lesser Includeds and Almendarez-Torres

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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."

1 Comment

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.

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