In U.S. v. Greer, No. 05-11295 (Feb. 24, 2006), on rehearing, the Court reissued a new opinion again affirming the defendant’s conviction for illegal possession of a firearm as a convicted felon, and on a government cross-appeal of the sentence, agreeing again with the government that the district court erroneously failed to impose the sentence mandated under the Armed Career Criminal Act, 18 U.S.C. 924(e)(1).
The Court rejected Greer’s challenge to the sufficiency of the evidence, pointing out that there was evidence that Greer lived in the house in which ammunition was found. The Court also rejected Greer’s challenge to venue, finding that venue was correct. Since there was no merit to these arguments, the Court also rejected Greer’s claim that his trial lawyer was ineffective in failing to raise them.
Turning to the sentence, the sentencing court recognized that Greer, as a three-time convicted felon, qualified for the 15-year minimum sentence of § 924(e). The sentencing court also noted that, based on the indictments in those cases, the convictions met the "violent" definition of qualifying offenses. However, based on recent Supreme Court precedent, the sentencing court believed it could not impose a sentence based on facts not found by a jury.
The Court found that the sentencing court erred in so reasoning. The Court pointed out that under Almendarez-Torres v. U.S., 523 U.S. 224 (1998) – which has not been overruled – a prior conviction can be considered by a sentencing court notwithstanding its non-consideration by a jury. The Court noted its own recent precedent reaffirming the vitality of Almendarez-Torres, The Court noted that, implicit in Shepard v. U.S. is a recognition that charging documents could be considered to make a determination about prior qualifying convictions. Shepard’s limitation on the kinds of documents that could be considered did not help Greer, because the violent nature of his prior convictions was clear from the certified copy of the conviction document read along with the indictment and in light of the statutory elements of the offense. The Court recognized that it is "probably" is correct to predict the demise of Almendarez-Torres, but it was not its role to base decisions on probable Supreme Court decisions.
