United States of America v. Lashon Browning

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-1991
U NITED S TATES OF A MERICA ,
Plaintiff-Appellee,
v.
L ASHON B ROWNING ,
Defendant-Appellant,
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 02 CR 1168-1—Wayne R. Andersen, Judge.
____________
A RGUED J ANUARY 9, 2006—D ECIDED F EBRUARY 6, 2006
____________
Before POSNER , E VANS , and S YKES , Circuit Judges.
P OSNER , Circuit Judge. The defendant was convicted by a
jury of being a felon in possession of a firearm and was
sentenced to 240 months in prison. He presents a number of
issues in this appeal, all but one of which are frivolous, such
as that comprehension of Miranda rights cannot be indicated
by a nod of the head. United States v. Smith, 218 F.3d 777,
780-81 (7th Cir. 2000). The substantial issue is whether the
Supreme Court’s recent decision in Shepard v. United States,
125 S. Ct. 1254 (2005), entitled the defendant to a jury trial
on whether a previous conviction used to enhance his
sentence, pursuant to the Armed Career Criminal Act, 18

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2 No. 05-1991
U.S.C. § 924(e), was a conviction of him or of another
person.
One of the three convictions that brought him within the
Act’s grasp was a conviction of “Marvin Prince,” but
fingerprint evidence persuaded the district judge that
“Marvin Prince” and “Lashon Browning” were one and
the same person. Confronted by the evidence, the defendant
said: “I am not disputing they ain’t got my conviction. What
I am really disputing is that as far as like wanting them to
be treated as related cases.” The government interprets this,
plausibly enough, as the defendant’s admitting that he had
the requisite three convictions and denying only that they
were committed on separate occasions, as the Act requires
(in fact they were committed months apart). If the govern-
ment’s interpretation is correct, the defendant waived any
right he might have had to a jury trial on whether he is
Marvin Prince. But if his statement was not a waiver, he still
faces an apparently insurmountable obstacle. The evidence
that he is Marvin Prince is overwhelming; and while there
is no summary judgment or directed verdict in a criminal
case, there is also no right to a jury trial to determine
whether a defendant should receive an enhanced sentence
as a recidivist. Almendarez-Torres v. United States, 523 U.S.
224 (1998); United States v. Williams, 410 F.3d 397, 401-02 (7th
Cir. 2005); United States v. McInnis, 429 F.3d 1, 5 (1st Cir.
2005).
Or so it seemed until Shepard. Shepard’s sentence, like
the defendant’s in this case, had been enhanced under the
Armed Career Criminal Act, by reason of four previous
state convictions for burglary. The enhancement was proper
only if at least three were burglaries of a building or other
enclosed space. None of the charging documents or jury
instructions or findings in a bench trial, and no admissions

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No. 05-1991 3
incident to a guilty plea (Shepard had pleaded guilty),
indicated whether that was the nature of Shepard’s burglar-
ies. The government wanted to look at police reports to clear
up the matter but the Supreme Court held that this was
improper, that only “conclusive records made or used in
adjudicating guilt” could be considered. Shepard v. United
States, supra, 125 S. Ct. at 1260. The Court wanted to avoid
“collateral trials.” Id. at l261. It was also troubled by the
Sixth Amendment implications of allowing the district
judge to conduct an evidentiary inquiry, saying: “any fact
other than a prior conviction sufficient to raise the limit of the
possible federal sentence must be found by a jury.” Id. at
1262 (emphasis added). The Court reasoned that although
Almendarez-Torres, the source of the exception that we have
italicized, had not been overruled, and although “the
disputed fact here [whether Shepard had burglarized a
building] can be described as a fact about a prior conviction,
it is too far removed from the conclusive significance of a
prior judicial record, and too much like the findings subject
to . . . Apprendi, to say that Almendarez-Torres clearly autho-
rizes a judge to resolve the dispute.” 125 S. Ct. at 1262.
(Apprendi v. New Jersey, 530 U.S. 466 (2000), had held the
Sixth Amendment applicable to any fact, other than a prior
conviction, that raises the defendant’s sentence above the
otherwise applicable statutory maximum.) And so, to avoid
the Sixth Amendment issue, the Court construed the Armed
Career Criminal Act to bar findings based on police reports.
The part of the opinion from which we’ve quoted did not
command a majority of the Court—but only because Justice
Thomas, as he explained in his concurrence, wanted to go
even further and overrule Almendarez-Torres. Id. at 1263-64.
That would have yielded the same outcome in Shepard but
on a ground having farther-reaching implications for future
cases.

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4 No. 05-1991
The defendant in our case wants us to generalize from
Shepard to any case in which the defendant declines to
acknowledge a prior conviction. Suppose, we asked the
defendant’s lawyer at argument, that the name on the
prior criminal judgment had not been “Marvin Prince”
but “Lashon Browning,” and that the defendant had denied
that he was the same “Lashon Browning” in the previous
case and put the government to its proof that he was. Would
the defendant then be entitled to a jury trial on the issue of
identity? The lawyer answered “yes.” But if this is correct,
the Court in Shepard overruled Almendarez-Torres, because a
defendant can always deny that he is the person named in
the previous convictions that the government wants used to
increase his sentence for his latest offense. The Court didn’t
say that it was applying the Sixth Amendment to recidivist
findings and thus overruling Almendarez-Torres, and we are
not authorized to disregard the Court’s decisions even when
it is apparent that they are doomed E.g., State Oil Co. v.
Khan, 522 U.S. 3, 20 (1997); Scheiber v. Dolby Laboratories, Inc.,
293 F.3d 1014, 1018-19 (7th Cir. 2002).
We can reconcile Almendarez-Torres with Shepard for
purposes of this case by noting that while a fact that is
an element of a crime—in other words, “any fact other
than a prior conviction,” Shepard v. United States, supra,
125 S. Ct. at 1262—must in the absence of a stipulation or
other waiver be proved beyond a reasonable doubt, to a jury
if the defendant wishes, the prior conviction of Lashon
Browning was not an element of the crime with which
he was charged, that of being a felon in possession of a gun.
The issue was whether the defendant had been convicted; in
Shepard the issue had been what the defendant had been
convicted of. United States v. Cantellano, 430 F.3d 1142, 1147
(11th Cir. 2005); United States v. Carrillo-Beltran, 424 F.3d 845,
848 (8th Cir. 2005); United States v. Thompson, 421 F.3d 278,

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No. 05-1991 5
284 n. 4 (4th Cir. 2005); United States v. Moore, 401 F.3d 1220,
1225 (10th Cir. 2005). There was no doubt that Shepard had
been convicted; it just was uncertain whether the convic-
tions had involved a certain kind of burglary, and the Court
didn’t think a “collateral trial” on that question was worth
conducting. The Court did not hold that Shepard was
entitled to a jury trial on the issue; the issue was not to be
tried at all. The use of a prior conviction to enhance a
defendant’s sentence presupposes that it is a prior convic-
tion of him, and if there is any doubt on that score the judge
has to resolve it. As he did here.
Almendarez-Torres is vulnerable to being overruled not
because of Shepard but because of United States v. Booker, 125
S. Ct. 738 (2005). Booker holds that there is a right to a jury
trial and to the reasonable-doubt standard in a sentencing
proceeding (that is, the Sixth Amendment is applicable) if
the judge’s findings dictate an increase in the maximum
penalty. Id. at 756. Findings made under the Armed Career
Criminal Act do that. So if logic rules, those findings too are
subject to the Sixth Amendment. But law is not always very
logical, and a good thing it isn’t. An immense practical
difference between the fact of a prior conviction and other
facts bearing on a sentence is that defendants normally are
loath to have their prior crimes paraded before a jury. In
states such as Wisconsin that entitle defendants to jury
consideration of sentencing enhancements based on prior
sentences, the entitlement is almost always waived. So
overruling Almendarez-Torres would have little practical
significance, though it would doubtless beget a torrent of
postconviction proceedings, just as Booker has done. Maybe,
then, Almendarez-Torres will survive. But that is neither here
nor there; the continued authority of Almendarez-Torres is
not for us to decide.
A FFIRMED .

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6 No. 05-1991
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-6-06

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