U.S. v. Pineda-Arrellano

• Decision Date: 17 July 2007
• Docket Number: No. 06-41156 Conference Calendar.,06-41156 Conference Calendar.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Agustin PINEDA-ARRELLANO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.3d 624

UNITED STATES of America, Plaintiff-Appellee, v. Agustin PINEDA-ARRELLANO, Defendant-Appellant.

No. 06-41156 Conference Calendar.

United States Court of Appeals, Fifth Circuit.

July 17, 2007.

Julia Bowen Stern, James Lee Turner, Asst. U.S. Attys., Houston, TX, for U.S.

Marjorie A. Meyers, Fed. Pub. Def., H. Michael Sokolow, Houston, TX, for 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.

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, 147 L.Ed.2d 435 (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, 140 L.Ed.2d 350 (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, 167 L.Ed.2d 532 (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 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 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, 488 F.3d 844, 845-46, 2007 WL 1599009, at *1 (9th Cir.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, 487 F.3d 282, 287-88 (5th Cir.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 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 justification for overruling Almendarez-Torres. Moreover, countless 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, 165 L.Ed.2d 910 (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 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.

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, 118 S.Ct. 1219, 140 L.Ed.2d 350 (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 625. 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 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 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, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962) (citing 28 U.S.C. §§ 1291, 1294; Fed. R.Crim.P. 37(a)); cf. Carroll v. United States, 354 U.S. 394, 400-01, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (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, 82 S.Ct. 917; 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.

The majority does not cite, and I have been unable to find, any statute authorizing a ...