Prior Convictions - - Questions of Fact and Questions of Law

United States v. Freddy Rosas, Case No. 04-2929 (03/24/2005): The defendant was sentenced as a career offender. In doing so, the district court relied on a prior Wisconsin conviction for fleeing a police officer. The Court held that fleeing was a "crime of violence," since it "otherwise involves conduct that presents a serious potential risk of physical injury to another." The defendant acknowledged the vitality of Almendarez-Torres, but argued that he had a right to a jury trial on the nature of the offense, even though he had a no jury trial right as to the existence of the conviction. The Court held that the issue is one of law, not fact; hence, no right to jury trial.

It is true that a prior decision by the Court has declared that any and all violations of the Wisconsin flight statute are crimes of violence, but this ruling is not easily squared with Shepard v. United States, 544 U.S. ___ (2005), which was decided after Rosas was argued, but is not discussed by the Rosas Court. One can violate the Wisconsin statute by engaging in extremely risky conduct, but one can also violate it with conduct that poses minimal risks to anyone. If the government in Shepard had to prove that the defendant was convicted of the sort of burglary that triggered enhanced penalties, the government in Rosas should have been required to prove that the defendant was convicted of the sort of flight that posed a serious risk. Moreover, the Court has seized on a false dichotomy. The nature of the offense is a mixed question of law and fact, which, under Booker, should call into play the right to jury trial.

The Court upheld the calculation of the guidelines, but it said nothing about how this case should be resolved now that the guidelines are merely advisory.