Eleventh Circuit Court of Appeals - Published Opinions

Tuesday, November 23, 2004

Not Much of a Friend

Many thought that the pending Supreme Court case of Shepard v. U.S. -- raising the permissible means by which a sentencing judge may determine if an Armed Career Criminal Act predicate offense exists -- was a vehicle for the Court to recede from its earlier decision in Almendarez-Torres. An amicus brief was even filed on the issue by NACDL. At oral argument, a justice tried to move the discussion in that direction, but counsel for Shepard short-circuited that possibility:

JUSTICE O'CONNOR: Do you join the amici in saying Almendarez-Torres has to be overruled?

MS. THOMPSON: No, I do not.


MS. THOMPSON: I do not join . . .

Transcript of OA at 13. That ended all mention of the continuing viability of Almendarez-Torres . . .