Even though it isn’t obvious on its face, SCOTUS has just given defendants in Tennessee a new challenge in certain sentencing cases. Now, based on Erlinger v. United States’s reading of Apprendi v. New Jersey, defendants faced with a possible range enhancement should consider filing a pre-trial motion challenging the enhancement absent a unanimous jury finding that all predicate felonies were committed more than 24 hours apart from one another. If a pre-trial motion is not feasible, an objection at sentencing may be a viable alternative to preserve the issue for appeal.
In Erlinger, the defendant pled guilty to being a felon in possession of a firearm and was subjected to an enhanced sentencing range under the Armed Career Criminal Act (ACCA). To trigger the sentencing enhancement, the government had to prove that the predicate convictions were “committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The Court vacated the sentence because that determination was made by the trial judge instead of by a jury. The Court held that, under Apprendi and its progeny, the Fifth and Sixth Amendments require a unanimous jury to determine beyond a reasonable doubt that a defendant’s predicate convictions were committed on separate occasions before a court may apply the ACCA sentencing enhancement.
In other words, Erlinger calls into question the constitutionality of Tennessee’s statutory range enhancements. Tennessee law imposes enhanced sentencing ranges based on prior felony convictions. Tenn. Code Ann. §§ 40-35-106 to -108. To count as separate predicate felonies for purposes of triggering a higher range, the convictions typically must be committed more than 24 hours apart from one another (although there is an exception for aggravated burglary and any conviction involving bodily injury). See, e.g., id. § 40-35-106(4). Thus, under Erlinger, a jury should be required to determine that the predicate convictions were not committed during the same 24-hour period.
This may not be applicable in every case, because in some cases range cannot be non-laughably argued. But when the timing of prior qualifying crimes is even marginally arguable, Erlinger mandates that a jury, not a judge, must determine when they were committed.