![]() The occasions inquiry is far afield from the Almendarez-Torres v. This practice violates the core of Apprendi, and none of the circuits’ arguments to the contrary are availing. ![]() Judges are turning convictions for offenses that carry a maximum ten-year sentence into convictions that carry a sentence of fifteen years to life. 7 But this is precisely what is happening today. 6 This deference would seriously erode the right to have every fact essential to the conviction be proven to a jury beyond a reasonable doubt. ![]() The courts could no longer defer to the states’ decisions about what was a sentencing factor, to be decided by a judge by a preponderance of the evidence, and what was an element, to be decided by a jury beyond a reasonable doubt. All of these courts are wrong.Īpprendi marked a shift in Sixth Amendment jurisprudence. ![]() In fact, every federal court of appeals to consider this question - which is every circuit but one - has held that judges may make the occasions determination by a preponderance of the evidence. So far, no federal court of appeals has found this to be prohibitively problematic. 5 Currently, judges across the country are deciding whether a defendant’s predicate offenses occurred on separate occasions by a preponderance of the evidence at sentencing. New Jersey, 4 the Supreme Court held that any fact that increases the maximum sentence for an offense must be charged in the indictment and proven to a jury beyond a reasonable doubt. The Armed Career Criminal Act 1 (ACCA) mandates an enhanced sentence when a felon in possession of a firearm was previously convicted of at least three predicate offenses committed on “occasions different from one another.” 2 This statute transforms a maximum ten-year sentence into a mandatory minimum sentence of fifteen years and a maximum sentence of life.
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