United States v. Pineda-Arrellano

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 17, 2007

Charles R. Fulbruge III
Clerk
No. 06-41156
Conference Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

AGUSTIN PINEDA-ARRELLANO,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Texas

Before JONES, Chief Judge, and JOLLY and DENNIS, Circuit Judges.

By EDITH H. JONES, Chief Judge:

Agustin Pineda-Arrellano (“Pineda”) appeals his guilty

plea conviction and sentence for illegal reentry. Pineda argues

that the felony and aggravated felony provisions of 8 U.S.C.

§ 1326(b)(1) and (b)(2) are unconstitutional in light of Apprendi

v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), because the

courts treat a defendant’s prior felony conviction as a statutory

ground for a sentencing enhancement rather than as an element of

the offense, which, pursuant to the Sixth Amendment, should be

presented to the jury. Pineda’s case is one of hundreds, if not

thousands, in this circuit in which counsel have raised this
constitutional challenge. We take this opportunity to state that

this issue no longer serves as a legitimate basis for appeal.

Pineda makes the familiar contention that Almendarez-

Torres v. United States, 523 U.S. 224, 235, 118 S. Ct. 1219 (1998),

was incorrectly decided and that a majority of the Supreme Court

would overrule it in light of the subsequent decision in Apprendi.

We have repeatedly rejected such arguments on the basis that

Almendarez-Torres remains binding precedent until and unless it is

officially overruled by the Supreme Court. See, e.g., United

States v. Garza-Lopez, 410 F.3d 268, 276 (5th Cir. 2005). Pineda

properly concedes that his argument is foreclosed by Almendarez-

Torres and circuit precedent, but he nevertheless raised it as his

sole appellate issue to preserve it for Supreme Court review.

This court has patiently entertained the identical

argument in countless cases. Now, however, a majority of the

Supreme Court has reaffirmed Almendarez-Torres in James v. United

States, __ U.S. __, 127 S. Ct. 1586 (2007), stating that “we have

held that prior convictions need not be treated as an element of

the offense for Sixth Amendment purposes.” Id. at __, 127 S. Ct.

at 1600 n.8 (citing Almendarez-Torres). Because the Supreme Court

treats Almendarez-Torres as binding precedent, Pineda’s argument is

fully foreclosed from further debate. That James interpreted the

Armed Career Criminal Act is not a distinguishing feature from the

illegal reentry statute under which this appellant was convicted,

because both statutes enhance a defendant’s punishment on account

2
of certain prior felony convictions. Moreover, the Supreme Court’s

acknowledgment in footnote eight that James stipulated to a prior

offense does not detract from the force of its simultaneous

reliance on Almendarez-Torres. We lower courts are not empowered

to deconstruct such clear statements of governing authority by the

Supreme Court. See also United States v. Grisel, __ F.3d __, 2007

WL 1599009, at *1 (9th Cir. June 5, 2007) (en banc) (noting that

Almendarez-Torres has never been overruled but has been applied

repeatedly by the Supreme Court, most recently in James); United

States v. Davis, __ F.3d __, 2007 WL 1438490, at *4 (5th Cir. May

17, 2007) (noting, after James, that the Apprendi Court “explicitly

refrained from overruling Almendarez-Torres”).

The dissent takes issue with our view that James has

closed the book on reconsideration of Almendarez-Torres. The

Supreme Court’s decision is hardly surprising, however. Despite

the dissent’s overstated claim that we are denying future

defendants their appeal rights, few issues have less merit for a

defendant than the potential overruling of Almendarez-Torres — and

defense counsel are well aware of this. If Almendarez-Torres were

overruled based on Apprendi, prior felony crimes that could serve

as the basis for sentence enhancements would have to be proven to

a jury beyond a reasonable doubt. No defendant wants such an issue

before the jury! The carefully drafted restrictions on evidentiary

admission of prior offenses (FED. R. EVID. 404(b)) emphasize the

inherent prejudice in placing a defendant’s criminal record before

3
a jury. Justice Stevens acknowledged these realities when, pre-

James, he stated that his disagreement with Almendarez-Torres “is

not a sufficient reason for revisiting the issue”:

The denial of a jury trial on the narrow issues of fact
concerning a defendant’s prior conviction history . . .
will seldom create any significant risk of prejudice to
the accused. Accordingly, there is no special justifica-
tion for overruling Almendarez-Torres. Moreover, count-
less judges in countless cases have relied on Almendarez-
Torres in making sentencing determinations. The doctrine
of stare decisis provides a sufficient basis for the
denial of certiorari in these cases.

Rangel-Reyes v. United States, -- U.S. --, 126 S. Ct. 2873, 2874

(2006)(statement of Justice Stevens respecting the denial of

petition for writ of certiorari).

One might ask, then, why so many defendants in this

circuit have pursued reconsideration of Almendarez-Torres.

Probably because, like the mountain, it’s there, and it doesn’t fit

with the logic of Apprendi. Defense counsel may also perceive some

marginal tactical benefit in placing any roadblock in the way of

expeditious conviction or punishment. No matter what the

underlying rationale may have been for challenging Almendarez-

Torres “to preserve the issue for further review,” it is time to

admit that the Supreme Court has spoken. In the future, barring

new developments in Supreme Court jurisprudence, arguments seeking

reconsideration of Almendarez-Torres will be viewed with

skepticism, much like arguments challenging the constitutionality

4
of the federal income tax.1 It would be prudent for appellants and

their counsel not to damage their credibility with this court by

asserting non-debatable arguments.

Based on the foregoing, Pineda’s conviction and sentence

are AFFIRMED.

1
Who doubts that if, instead of receiving hundreds of Almendarez-
Torres briefs each year, this court received a similar number of income tax
protestor appeals, we would hesitate to limit these meritless filings?

5
DENNIS, Circuit Judge, concurring in affirming the conviction and

sentence only.

I concur only in the majority’s holding that this court is

bound by the Supreme Court’s decision in Almendarez-Torres v.

United States, 523 U.S. 224 (1998), and that Mr. Pineda’s

conviction and sentence are affirmed. I emphatically do not join

the majority’s various statements regarding the continued validity

of Almendarez-Torres, including especially its assertion that “this

issue no longer serves as a legitimate basis for appeal.” See supra

at 3. The majority’s language amounts only to a dictum that

exceeds the authority of this court and conflicts with decisions of

the Supreme Court.

I.

The majority’s statement that challenges to Almendarez-Torres

“no longer serve[] as a legitimate basis for appeal” is plainly a

dictum, rather than a decision that establishes binding circuit

precedent forbidding the filing of such appeals and arguments. The

majority’s holding simply affirms Mr. Pineda’s conviction and

sentence based on Almendarez-Torres and thus adds no new precedent.

The majority’s statements regarding future appeals challenging

Almendarez-Torres are matters not resolved or determined in its

holding and therefore amount only to dictum. In other words, the

parties in the present case did not join issue on, and the majority

6
did not decide, whether Mr. Pineda could appeal or argue for

reconsideration of Almendarez-Torres. In fact, Mr. Pineda did

appeal and make an argument in brief on that issue. Furthermore,

the government did not object or contest his right to do so;

neither did the majority disallow his appeal or argument. Instead,

the majority opinion acknowledges that he made the argument in

order to preserve his right to ask for relief if the Supreme Court

overrules Almendarez-Torres. Thus, the majority’s dictum statement

referring to the legitimacy of future appeals that seek to overrule

Almendarez-Torres is an independent part of the majority opinion

that does not affect Mr. Pineda’s case in any way. Rather, the

majority, without being requested to do so, simply uses this case

as a convenient vehicle within which to express its opinion on a

matter not resolved or determined by its holding, that is, to

announce its dictum opinion as to the validity of future

Almendarez-Torres challenges.

II.

Moreover, the question of whether we will allow or consider

appeals seeking reconsideration of Almendarez-Torres in the future

is beyond this court’s power to determine, because neither the

Constitution nor the Congress has vested us with the plenary

discretion to choose in advance the kinds of arguments and appeals

7
that we will allow or consider.1 To the contrary, federal law has

made an appeal from a district court’s judgment of conviction in a

criminal case what is, in effect, a matter of right. Coppedge v.

United States, 369 U.S. 438, 441 (1962)(citing 28 U.S.C. §§ 1291,

1294; Fed. R. Crim. P. 37(a)); cf. Carroll v. United States, 354

U.S. 394, 400-401 (1957)).2 Thus, a defendant in a federal

criminal case has a right to have his conviction and sentence

reviewed by a Court of Appeals, and need not petition that court

for an exercise of its discretion to allow him to bring the case

before the court. Coppedge, 369 U.S. at 442; see also Atilus v.

United States, 406 F.2d 694, 697 (5th Cir. 1969) (“[E]very

convicted person has an absolute right to an appeal.”). The only

requirements a defendant must meet for perfecting his appeal are

those expressed as time limitations within which various procedural

steps must be completed.3 Id.

1
Even the Supreme Court, which might have that power, has not to my
knowledge issued such a peremptory order. Certainly, it has not with respect to
appeals challenging Almendarez-Torres.
2
Section 3742(a), Title 28, U.S.C., establishes a similar right with
regard to appeals from the judgment of sentence. Koon v. U.S., 116 S.Ct. 2035,
2045–2048 (1996); see also Charles A. Wright, et al., 15B Federal Practice &
Procedure § 3918.8, p. 573 & n.1 (2007). In the Fifth Circuit, we have held that
our jurisdiction to review sentencing issues derives from both statutes. United
States v. Story, 439 F.3d 226, 230-31 (5th Cir. 2006).
3
“First, a timely notice of appeal must be filed in the District
Court to confer jurisdiction upon the Court of Appeals over the case.” Coppedge,
369 U.S. at 442 n.3 (citing Fed. R. Crim. P. 37(a); United States v. Robinson,
361 U.S. 220 (1960). “Subsequently, designations of the transcript, a record on
appeal and briefs must be filed in the appropriate forum.” Coppedge, 369 U.S.
at 442 n.4 (citing Fed. R. Crim. P. 39(c)) (record on appeal to be docketed in
Court of Appeals within 40 days of filing of notice of appeal).

8
 The majority does not cite, and I have been unable to find,

any statute authorizing a federal Court of Appeals to issue an

advisory in advance of filings that it will, in the future, view

with disfavor a certain kind of appeal or argument by a defendant

in a federal criminal case. Accordingly, the majority has, in my

opinion, assumed a sweeping preemptive and discretionary power that

neither the Constitution nor the Congress has vested in this court.

This conclusion is confirmed by the fact that Congress has,

under the in forma pauperis law, 28 U.S.C. § 1915, given federal

courts narrowly defined authority to dismiss a case only after it

has been filed, and only if the court determines that a statutorily

specified grounds for dismissal exists, e.g., that the action or

appeal is frivolous or malicious. In particular, 28 U.S.C. §

1915(e)(2) provides that a federal court shall dismiss a case at

any time if it determines that “(A) the allegation of poverty is

untrue; or (B) the action or appeal – (i) is frivolous or

malicious; (ii) fails to state a claim on which relief may be

granted; or (iii)seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C. § 1915(e)(2).4 Thus, under §

1915(e)(2), a federal court is authorized and required to dismiss

the case only after making an individualized determination that one

of the statutory grounds for dismissal exists in that particular

4
It is also worth noting that § 1915(g), known as the three-strike
rule, applies only to a prisoner bringing a civil action or appealing a judgment
in a civil action or proceeding and therefore has no bearing on the dismissal of
criminal appeals.

9
case. Consequently, neither § 1915(e)(2) - nor any other authority

- empowers a federal court of appeals to do what the majority, in

effect, does here, that is, to proclaim that, in the future, all

criminal defendants should not appeal or present argument on a

particular issue of substantive law.

Moreover, the majority’s dictum today does what the Supreme

Court has expressly said we may not do - presume to decide for the

Court an issue that is exclusively within its prerogative. That

is, instead of simply deciding as we have in the past that we are

bound by Almendarez-Torres as an exception to the principle of

Apprendi until the inconsistency is squarely addressed and resolved

by the Supreme Court, the majority undertakes to treat Almendarez-

Torres’s validity as inarguable as if it had been declared stare

decisis. Such an approach is overambitious: as Justice Thomas has

recently observed, it falls to the Supreme Court, and only the

Supreme Court, to resolve the issue. See Rangel-Reyes v. United

States, 126 S.Ct. 2873, 2874 (2006) (dissent from denial of

certiorari) (“The Court's duty to resolve this matter is

particularly compelling, because we are the only court authorized

to do so.”).

The majority’s reliance upon unspecified and uncited federal

income tax collection cases is badly misplaced. Even assuming that

the majority’s unnamed cases were decided correctly, it is

difficult to see how, as civil cases, they could be authority for

10
the majority’s peremptory disallowance of federal criminal appeals

of right. At stake in every serious criminal case

are constitutional protections of surpassing importance:

the proscription of any deprivation of liberty without

due process of law, Amdt. 14, and the guarantee that [i]n

all criminal prosecutions, the accused shall enjoy the

right to a speedy and public trial, by an impartial jury,

Amdt. 6. Taken together, these rights indisputably

entitle a criminal defendant to a jury determination that

[he] is guilty of every element of the crime with which

he is charged, beyond a reasonable doubt.

Apprendi v. New Jersey 530 U.S. 466, 476-77 (2000)(citing United

States v. Gaudin, 515 U.S. 506, 510 (1995); Sullivan v. Louisiana,

508 U.S. 275, 278 (1993); In re Winship, 397 U.S. 358, 364 (1970))

(footnote and internal quotations omitted). The majority doesn’t

even try to explain how the anonymous civil tax collection cases to

which it refers are in anyway apposite.

III.

For the foregoing reasons, I respectfully suggest that the

majority should withdraw its misguided dictum. If the majority

chooses to publish the dictum, however, government attorneys and

defense counsel should not take it as having any legal or

precedential effect upon proceedings within the context of 28

11
U.S.C. § 1915 for several reasons5: (1) this case is not subject to

the in forma pauperis rules of 28 U.S.C. § 1915 because Mr. Pineda

did not proceed in forma pauperis here; (2) neither party has

raised, briefed or even mentioned the subject of frivolousness

under § 1915 in this case; and (3) the majority did not consider,

address, or even mention the subject of frivolousness in its

opinion. Indeed, the majority affirmed Mr. Pineda’s conviction and

sentence on the merits, rather than dismissing his appeal in this

case. Finally, as discussed above, the majority’s dictum is

apparently based on the misguided notion that we have discretionary

power, similar to that of the Supreme Court, to grant or deny what

are, in effect, appeals of right in federal criminal cases

according to our own standards and reasons, rather than those

provided by Congress and the Supreme Court.

Moreover, if this court is called upon to decide whether it is

frivolous under 28 U.S.C. § 1915 for a defendant in a particular

federal criminal case to appeal his conviction or sentence based

solely on an argument to overrule Almendarez-Torres as

5
Contrary to the majority’s misreading, I do not merely disagree with
the majority on whether James "closed the book" on reconsideration of Almendarez-
Torres. Rather, as the two preceding sections make clear, I disagree with the
majority's unauthorized attempt to predict what the Supreme Court will do in
respect to Almendarez-Torres and even more strongly with the majority's ultra
vires statements discouraging appeals of right fully authorized by Congressional
acts. In this part of my analysis, I address only the possible misguided motions
to dismiss appeals as frivolous under 28 U.S.C. § 1915 that may be filed in
response to the majority's dictum and ultra vires statements. Until the
Almendarez-Torres issue is squarely addressed by a Supreme Court majority, I
believe there is a rational, non-frivolous basis to appeal and challenge the
holding in that case. Unlike, the majority, I do not presume to make book on
future Supreme Court decisions.

12
intrinsically in conflict with Apprendi and other cases, we must

decide according to the governing rules and standards established

by the Supreme Court precedents. Under those principles,

frivolousness does not depend on the likelihood of the appellant’s

success but on whether the appellant’s argument has a rational

basis in law and fact. As the Supreme Court stated in Coppedge,

Since our statutes and rules make an appeal in a criminal

case a matter of right, the burden of showing that that

right has been abused through the prosecution of

frivolous litigation should, at all times, be on the

party making the suggestion of frivolity. It is not the

burden of the petitioner to show that his appeal has

merit, in the sense that he is bound, or even likely, to

prevail ultimately. He is to be heard, as is any

appellant in a criminal case, if he makes a rational

argument on the law or facts.

Coppedge, 369 U.S. at 447-448.(emphasis added).

Further, in Anders, 386 U.S. at 744, the Supreme Court stated

that an appeal on a matter of law is frivolous where “[none] of the

legal points [are] arguable on their merits.” Also, in Neitzke v.

Williams, 490 U.S. 319 (1989), the Supreme Court had occasion to

construe the meaning of “frivolous” under former § 1915(d). The

Court began by noting that “[t]he Courts of Appeals have, quite

correctly in our view, generally adopted as formulae for evaluating

13
frivolousness under § 1915(d) close variants of the definition of

legal frivolousness which we articulated in the Sixth Amendment

case of Anders v. California.” Neitzke, 490 U.S. at 325. The

Neitzke Court went on to state that “a complaint, containing as it

does both factual allegations and legal conclusions, is frivolous

where it lacks an arguable basis either in law or in fact.” Id. at

325. The Court observed that the in forma pauperis statute

“accords judges . . . the authority to dismiss a claim based on an

indisputably meritless legal theory.” Id. at 328.

If and when we are confronted with a motion to dismiss an

individual appeal challenging Almendarez-Torres as frivolous under

28 U.S.C. § 1915 (e)(B)(i), we will be required to decide the

question by applying the principles established by the Supreme

Court. Thus, the issue in such a case will probably hinge on

whether the argument to overrule that challenge or argument is

based on an “indisputably a meritless legal theory,” “lack[s] an

arguable basis...in law,” and is altogether not a “rational

argument.” In deciding such a case we are required to bear in mind

that a tie must go to the appellant, because “our statutes and

rules make an appeal in a criminal case a matter of right, [and]

the burden of showing that that right has been abused through the

prosecution of frivolous litigation should, at all times, be on the

party making the suggestion of frivolity.” Coppedge, 369 U.S. at

447-48.

14
 It is, of course, not appropriate to decide here whether an

argument to overrule Almendarez-Torres can be declared frivolous

under 28 U.S.C. § 1915, because this case does not present that

question and we have not considered any briefs or oral argument on

the subject. But it should be pointed out generally, however, that

frivolousness will not turn on the appellant’s likelihood of

ultimate success or on the odds against the Supreme Court

overruling its challenged precedent, but on whether it is possible

to make a rational argument for its reconsideration, overruling or

limitation. If likelihood of ultimate success by an individual

litigant in the Supreme Court were the criterion, Courts of Appeals

could dismiss as frivolous substantial portions of their dockets,

in light of the small chance that certiorari will be granted and

result in a decision in any given case. Put in that light, an

argument that the Supreme Court should reconsider Almendarez-Torres

does not on its face appear to be irrational or an indisputably

meritless legal theory.

In Apprendi v. New Jersey, 530 U.S. 466 (2000), the three

blocs of Justices argued for three conflicting rationales. Justice

Stevens, writing the controlling plurality opinion joined in by

Justices Ginsburg and Souter, held that “[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury, and proved beyond a reasonable doubt.” Id. at 490. In doing

15
so, he expressly let stand the Court’s decision in

Almendarez-Torres, “[e]ven though it is arguable that [it] was

incorrectly decided,” and that it was inconsistent with the main

underlying principle of its decision.6

Justice Thomas, for himself and Justice Scalia, joined the

opinion of the Court but wrote separately to explain his view that

“the Constitution requires a broader rule than the Court adopts.”

Id. at 498. The broader rule espoused by Justices Thomas and

Scalia is the same principle underlying Justice Stevens’s holding

without the exception allowing Almendarez-Torres to stand. “[T]his

traditional understanding-that a “crime” includes every fact that

is by law a basis for imposing or increasing punishment-continued

well into the 20th-century, at least until the middle of the

century....Today's decision, far from being a sharp break with the

past, marks nothing more than a return to the status quo ante-the

status quo that reflected the original meaning of the Fifth and

Sixth Amendments.” Id. at 517.

A third view was expressed by the dissenters: Chief Justice

Rehnquist, and Justices O’Connor, Kennedy, and Breyer. Their view

was that the majority’s opinions were inconsistent with the Court’s

6
Even though it is arguable that Almendarez-Torres was incorrectly
decided, and that a logical application of our reasoning today should apply if
the recidivist issue were contested, Apprendi does not contest the decision's
validity and we need not revisit it for purposes of our decision today to treat
the case as a narrow exception to the general rule we recalled at the outset.
Given its unique facts, it surely does not warrant rejection of the otherwise
uniform course of decision during the entire history of our jurisprudence. Id.
at 489-89 (footnote omitted).

16
precedents and that given its “previous approval of — and the

significant history in this country of — discretionary sentencing

by judges, it is difficult to understand how the Fifth, Sixth, and

Fourteenth Amendments could possibly require the Court’s . . .

rule.” Id. at 544.

Thus, the Justices in Apprendi divided according to their

three conflicting but rational viewpoints as to the proper

interpretation of the Constitutional requirements of a jury trial

and proof beyond a reasonable doubt. The logical or rational

disconnect between the holding in Almendarez-Torres and the basic

underlying principles of Apprendi and subsequent cases were clear

in the Justices’ opinions and cannot be denied. As late as 2005,

Justice Thomas repeated his view that Almendarez-Torres “has been

eroded by this Court's subsequent Sixth Amendment jurisprudence,

and a majority of the Court now recognizes that Almendarez-Torres

was wrongly decided.” Shepard v. United States, 544 U.S. 13, 27

(2005).

Indeed, no justice has ever argued that the two decisions are

based on intrinsically compatible rationales or that they can be

reconciled logically in any principled way. Justice Stevens

recently indicated, in the context of denying certiorari, that he

continued to see the two decisions as being in conflict but that he

might vote to uphold Almendarez-Torres based on the doctrine of

stare decisis. Rangel-Reyes v. United States, 126 S.Ct. 2873, 2874

17
(2006). Justice Thomas, on the same subject, argued forcefully

that Almendarez-Torres should be overruled:

The Court's duty to resolve this matter is particularly

compelling, because we are the only court authorized to

do so. See State Oil Co. v. Khan, 522 U.S. 3, 20, 118

S.Ct. 275, 139 L.Ed.2d 199 (1997) (“[I]t is this Court's

prerogative alone to overrule one of its precedents.”).

And until we do so, countless criminal defendants will be

denied the full protection afforded by the Fifth and

Sixth Amendments, notwithstanding the agreement of a

majority of the Court that this result is

unconstitutional.

Id.

Consequently, it is not unreasonable or irrational to contend

that since only the Supreme Court can resolve the Almendarez-

Torres/Apprendi conflict in principle, there will continue to be a

rational basis for arguing for or against the viability of

Almendarez-Torres until that conflict has been squarely addressed

and resolved by overruling Almendarez-Torres, declaring it stare

decisis, or overruling Apprendi. Each view was rationally argued by

the Justices in Apprendi and can still be so argued by litigants

in criminal cases. We need go back only a month or so in the

Supreme Court’s recently ended term to see that even long standing

precedents can yield to rational but unlikely-to-succeed arguments,

and that the incidence of these waxes with each change in the

18
court’s composition, which in our world of mortals can occur at any

time.

Our previous panels have held consistently that the argument

for reconsidering and correcting Almendarez-Torres is not frivolous

under 28 U.S.C. § 1915. In United States v. Cervantes-Garcia, 260

F.3d 621 (2001) (unpublished, per curiam), the government moved for

dismissal inasmuch as the Appellant had raised as his sole issue an

argument controlled by Almendarez-Torres. Indeed, the appellant

did not claim otherwise; he conceded that Almendarez-Torres was the

controlling authority and foreclosed his argument. Nonetheless, he

raised the argument to protect his right to further review. After

careful consideration, we rejected the government’s argument that

the claim was frivolous under 28 U.S.C. § 1915. We pointed out

that

a member of the Supreme Court that decided

Almendarez-Torres has indicated in a related case that

the decision in Almendarez-Torres was mistaken. See

Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348,

2367-80 (2000)(Thomas, J., concurring).

Almendarez-Torres was decided by a 5-4 vote with Justice

Thomas a part of the majority.

Cervantes-Garcia, 260 F.3d at 621. For those reasons we held that

“we reject the contention that Appellant's appeal is frivolous;” we

also rejected the government's motion to dismiss on those grounds.

Id. Instead, we simply concluded that “because it is unmistakably

19
clear that Almendarez-Torres controls the disposition of the case

and we are bound thereby, we summarily affirm the judgment of the

district court in lieu of dismissal of Appellant's appeal.” Id.

Since then, we have consistently held only that Almendarez-Torres

issues are foreclosed on appeal, frequently acknowledging, when we

do so, that the issue is being raised on appeal only to preserve

it. See United States v. Iniguez-Barba, 485 F.3d 790, 790 n.1 (5th

Cir. 2007) (“As [the defendant] properly concedes, this argument is

foreclosed . . . , and he raises the argument only to preserve

it.”); United States v. Ramos-Sanchez, 483 F.3d 400, 404 (5th Cir.

2007) (“[T]he Supreme Court rejected this argument in

Almendarez-Torres v. United States, which we are obligated to

follow.”).

Thus, considered in this perspective, the dictum in footnote

8 of the Supreme Court’s majority opinion in James v. United

States, ___ U.S. ____, 127 S.Ct. 1586 (2007) plainly does not

squarely address or resolve the conflict between Almendarez-Torres

and the Apprendi line of case law. The James footnote, in its

entirety, states:

To the extent that James contends that the simple fact of

his prior conviction was required to be found by a jury,

his position is baseless. James admitted the fact of his

prior conviction in his guilty plea, and in any case, we

have held that prior convictions need not be treated as

an element of the offense for Sixth Amendment purposes.

20
 Almendarez-Torres v. United States, 523 U.S. 224, 118

S.Ct. 1219, 140 L.Ed.2d 350 (1998).

127 S.Ct. at 1600, n. 8.

The majority here reads the last phrase of the second sentence

of footnote 8 in isolation and incorrectly treats it as a holding

in the case.7 Instead, it is dictum. James’s central holding was

that the Florida attempted burglary was a “violent felony” under

ACCA. Whether Almendarez-Torres should be overruled or continued

as an exception to the Apprendi principle was not at issue in

James. The reference in footnote 8 to Almendarez-Torres was

unnecessary because James’s position was “baseless” anyway due to

his having admitted his prior conviction charged as an element of

his indictment in his guilty plea.

Moreover, because the survival of Almendarez-Torres was not at

issue in James, its opponents, Justices Scalia and Thomas, and its

proponents, Justices Stevens, Ginsburg and Souter, had no reason to

agree or disagree with the insignificant, peripheral dictum of

footnote 8.(four of these five Justices dissented from the main

holding in James and thus had no reason to take issue with matters

7
The majority also relies on two recent Circuit decisions as support:
United States v. Grisel, __ F.3d __, 2007 WL 1599009, at *1 (9th Cir. June 5,
2007) (en banc) (noting that Almendarez-Torres has never been overruled but has
been applied repeatedly by the Supreme Court, most recently in James); and United
States v. Davis, __ F.3d __, 2007 WL 1438490, at *4 (5th Cir. May 17, 2007)
(noting, after James, that the Apprendi Court “explicitly refrained from
overruling Almendarez-Torres”). The majority takes these holdings as standing for
clear acknowledgment that the Supreme Court will never revisit Almendarez-Torres.
I cannot agree. These cases stand, rather, for the unremarkable principle that,
until such time as the Supreme Court does reconsider the issue, we are bound to
follow Almendarez-Torres as good law.

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peripheral to it). These five Justices, who made up the Apprendi

majority, are the only ones who care strongly about whether

Almendarez-Torres continues as an exception in Apprendi. The other

Justices in James, who were either dissenters or successors of

dissenters in Apprendi, may care little whether the Almendarez-

Torres exception to Apprendi survives, since they are likely to be

against Apprendi with or without the exception. In sum, any

Justice’s concurrence in or dissent from James’ central holding

involving whether the Florida offense was a crime of violence

signifies nothing about his or her opinion as to whether

Almendarez-Torres should survive or perish.

The majority here also seems to contend that James’ situation

vis à vis the ACCA is completely parallel to that of a defendant

vis à vis the illegal reentry statute at issue in Almendarez-

Torres. This is simply not so. Under the provision of the ACCA at

issue in James, the defendant’s prior conviction is an element of

the offense and must be included in the indictment, so that his

guilty plea to the indictment makes an argument based on

Almendarez-Torres baseless, moot and irrelevant, as it did in Mr.

James’s case. Under the illegal reentry statute, the defendant’s

prior conviction is not an element of the offense, not necessary to

the indictment, and not necessarily included in the indictment.8

8
The majority's argument that the right to a jury trial on an alleged
prior conviction invites prejudicial evidence into the main trial and therefore
is a negligible or dispensable right is simply a repetition of an argument made
for treating recidivism differently as relied upon in Almendarez-Torres. It, of
course, has a rational basis; but so does Justice Thomas' counter-argument that

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Consequently, unlike James, the illegal reentry defendant usually,

if not always, can make a rational and relevant argument that but

for Almendarez-Torres he has been unconstitutionally deprived of

his right to put the government to its proof before a jury and

thereby possibly avoid a substantial enhancement of his sentence.9

For these reasons, I concur in the majority's holding that Mr.

Pineda's conviction and sentence are affirmed, but I respectfully

disagree with its statements and dictum pertaining to the

legitimacy of appeals of right filed in this court by federal

criminal defendants urging the reconsideration and overruling of

Almendarez-Torres.

“this concern, of which earlier courts were well aware, does not make the
traditional understanding of what an element is any less applicable to the fact
of a prior conviction.” Apprendi, 530 U.S. at 521 (Thomas, J., concurring); see
also id. at n. 10. In any event, the resolution of this argument, like that of
the larger conflict between the Apprendi principle and Almendarez-Torres, of
which it is a part, belongs to the Supreme Court not this court.
9
The majority's reliance on Justice Stevens' statement of his
individual reasons respecting the denial of petitions for certiorari in
Rangel-Reyes v. United States, 126 S.Ct. 2873 (2006) is misplaced. Justice
Stevens' statement for himself alone that "the doctrine of stare decisis provides
a sufficient basis for the denial of certiorari in these cases" obviously does
not constitute a resolution of the conflict between the Apprendi principle and
Almendarez-Torres. Denials of certiorari by the Court do not make law; and, of
course, neither does the reason for such denial given by an individual Justice.

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