Public Defense

At issue in Shepard was whether a state burglary conviction triggered the Armed Career Criminal Act (?ACCA?), a federal recidivist statute. The ACCA, like most federal recidivist statutes, uses federal definitions for its triggering offenses. Therefore, in order to qualify for the ACCA, the defendant?s prior conduct must have satisfied the federal definition of burglary; a state?s decision to label an offense a ?burglary? does not necessarily suffice. Similar circumstances arise with state drug statues, which vary widely and often do not correspond with federal enhancements. In Shepard, the Court placed strict limits on the types of evidence a federal sentencing court may consider in determining whether a defendant?s prior conviction involved conduct triggering an enhancement. Because of the Sixth Amendment jury trial right, a sentencing judge may not assume the role of a jury and conduct an open factual inquiry about a defendant?s prior conduct. Rather, an enhancement applies only when a defendant admitted in a prior plea ? or a jury found ? the facts supporting the enhancement.

The Shepard analysis allocates the burden of proof in a way that, in many cases, makes it difficult for prosecutors to prove that a defendant?s prior conduct fits the federal enhancement. This can be an impossible task if records from the prior conviction are unavailable or when the records do not contain factual admissions by the defendant. In practice, rigorous application of Shepard allows judges to avoid applying mandatory sentencing enhancements in many cases and, thus, gives them greater discretion to craft sentences. As a result, Shepard, like Booker, allows judges to think critically about whether enhancements based on prior drug convictions actually serve any sentencing purpose. Judges may still decide to increase a sentence based on a defendant?s record ? and indeed remain free to impose a substantial increase ? but judges are no longer required to do so.