Thursday, May 05, 2005

Shepard and Almendarez-Torres Reconciled

United States v. Tek Ngo, Case No. 04-2662 (05/05/2005): Mr. Ngo was declared a career offender on the basis of two armed robbery convictions. He maintained that the two convictions should be counted as only one. The district judge made a finding that the two convictions were not related. The Court held that only a jury could make that finding. Almendarez-Torres allows a judge to find the fact of conviction. But if there is a question beyond the fact of conviction, such as the relatedness of one conviction to another, then Shepard gives the defendant a right to jury trial, unless a court record establishes the facts in dispute or the defendant admits the facts in dispute. In Mr. Ngo’s case, the question arose in the context of a guideline calculation, but the Seventh Circuit pointedly noted that its reading of Shepard would equally apply to non-guidelines situations.