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United States v. Talley

United States District Court, M.D. Alabama, Northern Division

February 9, 2018

UNITED STATES OF AMERICA,
v.
JAMES CALVIN TALLEY, JR., Defendant.

          MEMORANDUM OPINION AND ORDER

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE

         In his Trial Brief, defendant James Calvin Talley, Jr., asks the court for a jury to determine the fact of his prior convictions for sentencing purposes in the event he is convicted. He states:

If convicted he seeks bifurcation of the proceedings based on his Sixth Amendment Right to a jury finding regarding his prior convictions for enhancement purposes beyond a reasonable doubt and the anticipated demise of Almendarez-Torres v. U.S., 523 U.S. 224, 118 S.Ct. 1219 (1998) . . . .
Talley argues that despite the United States Supreme Court's ruling in Apprendi that prior convictions for enhancement purposes are excluded from those covered by Apprendi, he believes that an 851 enhancement[1] not charged in the indictment or presented to the jury for a beyond a reasonable doubt finding should be barred pursuant to the Apprendi holding. He believes it is necessary to preserve this argument for later potentially favorable decisions on this topic.

(Doc. 172 at 2-3 [footnote added].)

         Binding precedent from the Eleventh Circuit has recognized that this Circuit will continue to follow Almendarez-Torres until such decision is overruled by the Supreme Court. The court held:

As this discussion indicates, Alleyne [v. United States, 570 U.S. 99 (2013), ] did not address the specific question at issue in this case, which is whether a sentence can be increased because of prior convictions without a jury finding the fact of those convictions. That question continues to be governed by Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 1222, 140 L.Ed.2d 350 (1998), where the Court determined that the fact of a prior conviction is not an “element” that must be found by a jury. Indeed, the Alleyne Court specifically recognized that, under Almendarez-Torres, prior convictions are excepted from the general rule that a jury must find any fact that will increase the penalty for an offense. Alleyne, [570 U.S. at 111] n.1. The Alleyne Court declined to “revisit [Almendarez-Torres] for purposes of our decision today” because “the parties d[id] not contest that decision's vitality.” Id.; see also Descamps v. United States, [570] U.S. [254, 269], 133 S.Ct. 2276, 2288, 186 L.Ed.2d 438 (2013) (observing that an increase in the maximum statutory sentence based on judicial factfinding that “went beyond merely identifying a prior conviction” would “raise serious Sixth Amendment concerns”).
We recognize that there is some tension between Almendarez-Torres on the one hand and Alleyne and Apprendi on the other. However, we are not free to do what the Supreme Court declined to do in Alleyne, which is overrule Almendarez-Torres. As we have said before, we are “bound to follow Almendarez-Torres unless and until the Supreme Court itself overrules that decision.” United States v. Thomas, 242 F.3d 1028, 1035 (11th Cir. 2001).

United States v. Harris, 741 F.3d 1245, 1249-50 (11th Cir. 2014). It is a “fundamental rule that courts of this circuit are bound by the precedent of this circuit.” In re Hubbard, 803 F.3d 1298, 1309 (11th Cir. 2015)(citing Generali v. D'Amico, 766 F.2d 485, 489 (11th Cir. 1985)). Therefore, this court must follow Harris, and continue to apply Almendarez-Torres until expressly overruled by the Supreme Court.

         Consistent with the binding precedent of this Circuit, the court DENIES Talley's request for a jury trial to determine the fact of his prior convictions for sentencing purposes in the event of his conviction.

---------

Notes:

[1]Section 851 provides a mechanism for determining the fact of prior convictions that a defendant denies:

(b) Affirmation or denial of previous conviction

If the United States attorney files an information under this section, the court shall after conviction but before pronouncement of sentence inquire of the person with respect to whom the information was filed whether he affirms or denies that he has been previously convicted as alleged in the information, and shall inform him that any challenge to a prior conviction which is not ...

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