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In a pair of decisions handed down Wednesday and Thursday, the 3rd U.S. Circuit Court of Appeals has now weighed in with its answer to two important legal questions that stemmed from the U.S. Supreme Court’s decision in Apprendi v. New Jersey holding that juries must decide all facts that lead to sentence enhancements. When Apprendi was first decided, many commentators predicted it would spur a huge onslaught of litigation. But in practice, although there was a slew of Apprendi-related appeals filed, the courts often found there was no true Apprendi issue raised since the high court’s decision was limited to sentencing enhancements that extend the prison term beyond the statutory maximum. As a result, it has taken several years for some courts to reach some of the most basic Apprendi questions. Now the 3rd Circuit has tackled two of those questions in appeals brought by defendants whose sentences were enhanced beyond the statutory maximum. In Wednesday’s decision in United States v. Jenkins, the 3rd Circuit held that Apprendi should not be applied retroactively, joining all eight of the other federal appellate courts that have addressed that question. But the question presented in United States v. Jones, decided Thursday, was one that has split the federal circuits — whether a prior non-jury juvenile adjudication can count as a prior conviction that leads to an enhanced sentence under the Armed Career Criminal Act. In Jones, the 3rd Circuit rejected the view of the 9th Circuit and opted instead to follow the 8th Circuit in holding that non-jury juvenile cases qualify for the Apprendi exception and therefore need not be submitted to the jury. (Interestingly, one of the three judges on the unanimous 3rd Circuit panel was Senior Judge Arthur L. Alarcon, a visiting judge from the 9th Circuit.) The 9th Circuit held in United States v. Tighe that while Apprendi recognized a so-called “prior conviction exception,” it must be limited to prior convictions that were obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. The Tighe court found that non-jury juvenile adjudications cannot satisfy the Apprendi exception because of the constitutional differences between adult and juvenile convictions, such as the lack of a right to jury trials in most juvenile cases. But in United States v. Smalley, the 8th Circuit flatly rejected Tighe in holding that a prior non-jury juvenile adjudication qualifies as an exception under Apprendi. The defendant in Smalley had pleaded guilty to a charge of being a felon in possession of a firearm and at sentencing was branded an armed career criminal and hit with a 15-year prison term. On appeal, Smalley argued that, under Apprendi, his juvenile conviction should not have been used to meet the test for an armed career criminal. The 8th Circuit disagreed, holding that prior juvenile adjudications can “rightly” be characterized as “prior convictions” for Apprendi purposes. In so doing, the Smalley court said it refused to read Apprendi as creating a bright-line rule that proof beyond a reasonable doubt, fair notice, and a right to a jury trial are all necessary procedural safeguards that must be present before qualifying for the Apprendi exemption. Instead, the unanimous three-judge panel in Smalley found that the question was whether, considering the reality of actual juvenile adjudications, such determinations are “sufficiently reliable.” Since juvenile defendants receive a level of due process that has been held to satisfy constitutional standards — including the right to notice, right to counsel, right to confront and cross-examine witnesses, and the privilege against self-incrimination — the 8th Circuit found that trial judges can rely on them in enhancing sentences. The 8th Circuit also noted that juvenile convictions are also subject to a requirement of proof beyond a reasonable doubt. As a result, the Smalley court concluded that the absence of the right to a jury trial does not automatically disqualify juvenile adjudications for purposes of the Apprendi exception. Now, in Jones, the 3rd Circuit has held that the Smalley court got it right. Lester Jones’ lawyer, Assistant Federal Defender Karen Sirianni Gerlach, urged the 3rd Circuit to adopt the Tighe court’s reasoning, arguing that the 9th Circuit grounded its decision on the “clear mandate of Supreme Court case law.” But 3rd Circuit Judge Dolores K. Sloviter disagreed, saying “this is a grave overstatement, if not a misstatement, of the law.” Sloviter, who was joined by Judge Alarcon and 3rd Circuit Judge Richard L. Nygaard, found that “the Supreme Court cases relied on by the Tighe court never addressed the precise issue presented before us.” The Supreme Court, Sloviter said, has never held that prior non-jury juvenile adjudications cannot count as prior convictions for purposes of Apprendi‘s exception. To the contrary, Sloviter found, in McKeiver v. Pennsylvania, a 1971 decision, the justices held that due process does not require providing juveniles with the right to a jury trial. Citing McKeiver, prosecutors in Jones’ case argued that when a juvenile is adjudicated guilty beyond a reasonable doubt in a bench trial that affords all the due process protections that are required, the adjudication should be counted as a conviction for purposes of subsequent sentencing under the Armed Career Criminal Act. “We agree,” Sloviter wrote. “Like the Smalley court, we find nothing in Apprendi … that requires us to hold that prior non-jury juvenile adjudications that afforded all required due process safeguards cannot be used to enhance a sentence under the ACCA.” If Jones was “afforded all the procedural safeguards that he is constitutionally due,” Sloviter said, the trial judge “properly enhanced his sentence” under ACCA. “A prior non-jury juvenile adjudication that was afforded all constitutionally-required procedural safeguards can properly be characterized as a prior conviction for Apprendi purposes,” Sloviter wrote. RETROACTIVITY REJECTED The question of whether Apprendi should be applied retroactively has already been decided by eight circuits, all of which found that it should not since it involves a rule of criminal procedure. Until now, the 3rd Circuit had not squarely addressed the question. William Jenkins raised Apprendi in a habeas petition as a challenge to a conviction in which the jury did not specify the quantity of drugs with which he was charged. The sentence imposed on Jenkins was for an offense involving between 60 and 90 kilograms of marijuana, based on a calculation by a probation officer. But Apprendi was not decided until after Jenkins’ conviction had been affirmed and become final. In a new appeal, Jenkins argued that his sentence should be vacated because the factual issue of the quantity of drugs should have been decided by the jury and proved beyond a reasonable doubt. His appeal forced the 3rd Circuit to tackle a question it had thus far only partially answered. In 2001, in In re Turner, the 3rd Circuit held that Apprendi is not retroactive to a second or “successive” habeas petition because the Antiterrorism and Effective Death Penalty Act of 1996 requires for such petitions that “a new rule of constitutional law [must have been] made retroactive to cases on collateral review by the Supreme Court.” Since Jenkins was filing his first habeas petition, his appeal forced the 3rd Circuit to decide “whether Apprendi is retroactive to initial motions for post-conviction relief which are not subject to that requirement.” Visiting Senior U.S. District Judge William W. Schwarzer of the Northern District of California found that all eight courts of appeals that have addressed the question have held that it is not. The courts that have rejected a retroactive application of Apprendi are: the 4th, 5th, 6th, 7th, 8th, 9th, 10th and 11th circuits. Jenkins’ lawyer, Joseph A. O’Brien of Oliver, Price and Rhodes in Clarks Summit, Pa., argued that the retroactivity analysis of Apprendi should be approached on the premise that its principle lies on a “continuum midway between the procedural and substantive standards,” requiring a determination that a non-retroactive application of Apprendi would “clearly result in an egregious injustice.” Schwarzer disagreed. In an opinion joined by 3rd Circuit Judges Samuel A. Alito Jr. and Theodore A. McKee, Schwarzer found that, in Apprendi, the Supreme Court “defined the issue to be procedural.” Schwarzer quoted the 7th Circuit’s decision in United States v. Curtis, which held that “ Apprendi is about nothing but procedure — who decides a given question (judge versus jury) and under what standard (preponderance versus reasonable doubt). Apprendi does not alter which facts have what legal significance, let alone suggest that conspiring to distribute marijuana is no longer a federal crime unless the jury finds that some particular quantity has been sold.” Finding the Curtis court’s logic persuasive, Schwarzer wrote, “We join our sister circuits and hold Apprendi to be a rule of criminal procedure.”

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