Supreme Court's "Blakely" rule does not apply to fact of prior conviction

SENTENCING/APPEAL United States v. Sanchez-Cruz, No. 04-2008, ___ F.3d ___ (10th Cir. Dec. 21, 2004)(New Mexico). Alien’s appeal of sentence for illegal reentry to United States in violation of 8 U.S.C. § 1326(a). HELD: (1) Where judge incorrectly advised defendant at plea colloquy that he faced maximum sentence of twenty-four months, but defendant never argued at sentencing that if he had been correctly advised he faced 41-51 month sentence he would not have pled guilty, defendant failed to meet burden under "plain error" test of showing to reasonable probability that, but for judge’s erroneous advice, he would not have pled guilty and instead would have gone to trial. (2) New rules concerning criminal prosecutions such as that announced by Supreme Court in Blakely v. Washington, 124 S.Ct. 2531 (2004), apply to cases pending on direct appeal. However, as with any criminal appeal, Blakely issue must be properly raised. Blakely claim is not properly raised on appeal when argued for first time in reply brief or in supplemental authorities letter under Rule 28(j) of the Federal Rules of Appellate Procedure. When new rule of law such as Blakely is decided after appellant has filed opening brief, appellant may seek permission to file supplemental brief addressing applicability of new rule to his appeal. Thus, in instance such as this, where defendant did not raise Blakely challenge to sentence in district court, and where defendant further failed to raise issue until reply brief on appeal, alleged Blakely error, if any, is reviewed only for plain error. (3) Even assuming Blakely applies to federal sentencing guidelines (i.e., U.S.S.G. § 2L1.2(b)), application of sentence enhancement for illegal reentry after conviction for aggravated felony is constitutional. Rule stated in Blakely (i.e., facts necessary to increase sentence must be admitted or proved to jury) does not apply to sentence increases based on prior conviction. Blakely, does not overrule prior conviction exception to prohibition against sentence enhancements based on judicial fact-finding articulated by Supreme Court in Almendarez-Torres v. United States, 523 U.S. 224 (1998), and reaffirmed by Apprendi v. New Jersey, 530 U.S. 466, 489 (2000). Read the opinion here.