*1 172(c), (d) §der which accounts for capital
losses and limits them to the amount of 56(d)(1).
capital § gain. None of the modi-
fiсations made in the second step, as di- 56(d)(2)(A),5 by
rected overrides the See
§ 172 §§ limitations. I.R.C. 58.
Further, legislative history by cited
Merlo is taken of context out and does not
support his argument. His
essentially one of policy, misdirected to
this court than to Congress. rather Ac-
cordingly, the tax court did not err when it
determined no ATNOL existed which
could be carried back.
III. CONCLUSION reasons,
For the foregoing we AFFIRM
the tax court’s judgment. America,
UNITED STATES
Plaintiff-Appellee, Stern, Bowen Julia James Lee Turner, Asst. Attys., Houston, TX, for U.S. Agustin PINEDA-ARRELLANO, Defendant-Appellant. Marjorie A. Meyers, Def., Fed. Pub. H. Sokolow, Houston, Michael TX,
No. 06-41156 for Defen- danb-Appellant. Conference Calendar.
United States Court Appeals,
Fifth Circuit.
July 2007. JONES,
Before
Chief Judge, and
DENNIS,
JOLLY and
Judges.
Circuit
(ii)
prefer-
reduced
the items of tax
knowledging that
repeatedly
courts have
re-
ence determined under
section
jected taxpayers’ attempts
paid
to offset AMT
year.
upon
option
exercise
of the
carrying back
preference
An item of tax
shall be taken
the losses realized
disposition
sale
(ii)
into account
under clause
to the
stock);
Lipaian,
Francine J.
Incentive
extent such item increased the amount of
Options
Stock
and the Alternative Minimum
operating
the net
year
loss for the taxable
Times,
Legis.
Tax: The Worst
Harv.
J. On
172(c).
under section
(acknowledging that under
56(d)(2)(A).
I.R.C.
system,
large
current AMT
capital
loss
Secondary
authority
supports
also
cannot
carried back to
years).
taxable
our con-
Legutki,
(ac-
clusion. See 1
supra § 6:70
*2
625
pur
for Sixth Amendment
of the offense
JONES,
Judge:
H.
Chief
EDITH
Almenda
Id. at 1600
(citing
n.
8
poses.”
(“Pineda”) ap-
Pineda-Arrellano
Agustín
).
Supreme
Court
rez-Torres
Because
sen-
conviction
guilty plea
his
peals
Almendarez-Torres
binding
treats
argues
reentry. Pineda
illegal
for
tence
fully
is
fore
Pineda’s
precedent,
felony pro-
aggravated
felony and
That James
debate.
closed from further
(b)(2)
1326(b)(1)
of 8 U.S.C.
visions
Armed Career Criminal
interpreted the
v.
light of
unconstitutional
are
feature from
distinguishing
Act
not a
466, 120 S.Ct.
Jersey, 530
U.S.
New
under which this
reentry statute
illegal
(2000),
the courts
147 L.Ed.2d
convicted, because both stat
appellant was
felony conviction
prior
a defendant’s
treat
punishment on
defendant’s
utes enhance a
sentencing
statutory ground
a
as a
felony convictions.
prior
account of certain
than as an element
rather
enhancement
Suрreme
acknowl-
which,
offense,
to the Sixth
pursuant
James
stip
eight
in footnote
edgment
Amendment,
presented
be
should
not detract
prior
offense does
ulated to
hundreds, if
is one of
Pineda’s case
jury.
reliance
of its simultaneous
from the force
thousands,
in which
in this circuit
courts
on Almendarez-Torres.
We lower
constitutional
raised this
have
counsel
empowered
are not
deconstruct
opportunity
take this
challenge. We
authority by
governing
clear
statements
serves as
longer
no
that this issue
state
also United
Court. See
Supreme
appeal.
basis for
legitimate
Grisel,
844, 845-46, 2007
States v.
488 F.3d
the familiar contention
Pineda mаkes
Cir.2007) (en banc)
(9th
1599009, *1
WL
that Almendarez-Torres
has never
(noting that Almendarez-Torres
applied re
but has been
been overruled
(1998),
incorrectly decid
was
L.Ed.2d
Court, most re
Supreme
peatedly
Supreme
and that
ed
Davis,
James);
States
cently in
light
it in
would overrule
Court
Cir.2007) (not
(5th
282, 287-88
487 F.3d
Apprendi.
We
subsequent decision
James,
that the
Court
after
ing,
arguments
rejected such
repeatedly
have
overruling AT
from
“explicitly refrained
Almendarez-Torres
re
the basis that
on
mendarez-Torres”).
it
until and unless
binding precedent
mains
Supreme
by the
officially overruled
our view
takes issue
The dissent
See,
v. Garza-
e.g., United States
Court.
on recon-
that James closed
boоk
Cir.2005).
(5th
268, 276
Lopez,
410 F.3d
Almendarez-Torres.
sideration
argu
concedes that
properly
Pineda
hardly sur-
Court’s decision is
Supreme
by Almendarez-Torres
ment
foreclosed
the dissent’s
Despite
however.
prising,
but he nevertheless
precedent,
circuit
fu-
denying
that we
claim
overstated
issue to
appellate
sole
it as his
raised
few
rights,
their
ture defendants
review.
it for
Court
preserve
than
merit for a defendant
have
issues
less
Almendarez-
overruling of
potential
entertained
patiently
This court has
are well
defense counsel
Torres—and
cases.
in countless
identical
were
If Almendarez-Torres
aware of this.
however,
Now,
majority of
felony
Apprendi,
overruled based
has reaffirmed Almendarez-Torres
as the basis
serve
U.S. -,
crimes that could
James v. United
be
have to
would
(2007),
enhancements
167 L.Ed.2d
a reasonable
jury beyond
to a
proven
prior con
have held that
stating that “we
such an issue
wants
doubt. No defendant
an element
treated
need
victions
jury!
carefully
before the
jurisprudence,
drafted Court
arguments seeking
evidentiary
restrictions on
admission of
reconsideration of
will
prior offenses
empha
(Fed.R.Evid.404(b))
skepticism,
viewed with
much
argu-
like
prejudice
size the inherent
in placing a ments challenging the constitutionality of
*3
defendant’s criminal
jury.
record before a
the federal income tax.1 It
pru-
would be
Stevens acknowledged
Justice
these reali
dent
appellants
for
and their counsel not to
when, pre-James,
ties
he stated that his damage their credibility
with this court
disagreement with Almendarez-Torres “is
asserting
arguments.
non-debatable
not
sufficient
revisiting
reason for
Based on the foregoing, Pineda’s convic-
issue”:
tion and
are
sentence
AFFIRMED.
denial
jury
The
of a
trial on the narrow
of fact concerning
issues
a defendant’s
DENNIS,
Judge,
Circuit
concurring in
history
conviction
... will seldom affirming the conviction and
only:
any significant
create
prejudice
risk of
I
only
concur
in the majority’s holding
to the
Accordingly,
accused.
there is no
that this court
by,
is bound
the Supreme
special justification for overruling Al
decision Almendarez-Torres v.
mendarez-Torres.
countless
judges in countless cases have relied on
(1998),
will allow or 226, Story, 230-31 439 F.3d Court, v. might United States have Supreme which 1. Even the Cir.2006). (5th knowledge my issued not to power, has Certainly, it peremptory order. a 3."First, appeal must timely notice challenging Al- respect appeals jurisdic- to confer District Court in filed mendarez-Torres. case.” over the Appeals upon Court of tion 3, S.Ct. 917 442 n. 82 U.S.C., U.S. at 28, Coppedge, 369 3742(a), establishes Title 2. Section 37(a)); States (citing Fed.R.Crim.P. from regard appeals right with a similar 282, 220, 4 Robinson, S.Ct. 80 361 U.S. v. United Koon judgment of sentence. designa- (1960). "Subsequently, 2045-48, 116 518 and appeal transcript, on record tions of the (1996); Charles see also 15B L.Ed.2d appropriate fo- filed in Miller, briefs must H. Coo- Edward Wright, Arthur R. A. n. at 442 3918.8, Coppedge, rum.” Procedure Practice & per, Federal 39(c)) (record Circuit, (citing Fed.R.Crim.P. S.Ct. 917 (2007). the Fifth p. &573 n. Appeals in be docketed appeal to sen- to review jurisdiction that our have held appeal). filing of notice of days of within statutes. from both tencing derives issues ing Appeals federal Court of to issue an for the Court an issue that exclusively is will, advisory filings in advance of that it prerogative. within its That instead of is[ future, view with disfavor a certain simply deciding as we past have argument by appeal kind of defendant by we are bound Almendarez-Torres as Accordingly, a federal criminal case. exception to principle Apprendi un has, my opinion, assumed a til inconsistency squarely addressed sweeping preemptive discretionary Court, and resolved power that neither the Constitution nor majority undertakеs to treat Almendarez Congress has vested this court. validity Torres’s as inarguable as if it had been declared stare decisis. Such an ap
This conclusion is confirmed the fact proach has, overambitious: as Justice Thom Congress under the in forma recently observed, as has law, it pauperis falls to the given fed- Supreme Court, eral narrowly authority only courts defined Court, only filed, dismiss a it after has been resolve the Rangel issue. See if the' court -Reyes U.S. -, determines that a statutorily specified grounds dismissal S.Ct.
exists, (dissent e.g., that the action or certiorari) (“The *5 from denial of particular, frivolous or malicious. In 28 duty to resolve par this matter is 1915(e)(2) § provides U.S.C. that a federal ticularly compelling, because we are the court shall any dismiss case at time if it so.”). only court authorized to do “(A) allegation determines that pov- of majority’s upon unspecified reliance untrue; (B) erty is or ap- action or and uncited federal income tax collection (ii) peal—(i) malicious; is frivolous or fails badly eases is misplaced. Even assuming to state a claim on may which relief the majority’s unnamed cases were (iii)seeks granted; or monetary relief correctly, how, decided it is difficult to see against a defendant who is immune from cases, as civil they cоuld authority for 1915(e)(2).4 § relief.” 28 U.S.C. the majority’s peremptory disallowance of Thus, 1915(e)(2), § under a federal court is federal criminal appeals right. At stake required authorized and to dismiss every serious criminal case case after making an individualized determination that one of the statutory are constitutional protections of surpass- grounds partic- dismissal exists in that ing importance: the proscription any ular Consequently, case. neither deprivation liberty pro- without due 1915(e)(2)—nor § authority— other law, 14, cess of Arndt. and the guarantee empowers a appeals federal court of to do that [i]n all criminal prosecutions, majority, effect, here, what does enjoy accused shall the right speedy to a is, that, proclaim future, to in the all trial, and public by an impartial jury, criminal defendants should not appeal or Arndt. 6. together, Taken these rights present argument particular on a issue of indisputably entitle a criminal defendant substantive law. to jury determination that [he]
Moreover, today dictum guilty every element of the crime with does Supreme what the express- Court has which he charged, beyond a reason- ly said may we not do—presume to decide able doubt. It noting 1915(g), § also worth judgment in a civil proceeding action or rule, known applies only three-strike to bearing therefore has no on the dismissal of prisoner bringing appealing a civil appeals. action or criminal
629 that we have discretion- notion 466, misguided 476- Jersey 530 U.S. v. New Supreme of the 435 to that 2348, ary power, 147 L.Ed.2d similar 77, 120 S.Ct. Gaudin, are, effect, 515 Court, deny v. what States (2000)(citing grant to 2310, 132 L.Ed.2d 506, 510, 115 S.Ct. cases in federal criminal appeals U.S. Louisiana, 508 (1995); Sullivan and rea- our own standards according to L.Ed.2d U.S. sons, provided Con- rather than those Winship, (1993); re Court. and the gress (1970)) upon is called to if this court omitted). (footnote quotations and internal under it is frivolous decide whether explain try even majority doesn’t in a particu- á defendant 1915 for U.S.C. collection civil tax anonymous how his con- lar federal criminal anyway it refers to which cases ar- solely on an sentence'based viction or apposite. to overrule gument III. intrinsically in conflict reasons, I respectfully foregoing cases, according For the must decide other withdraw majority should that the suggest estab- and standards rules governing If the dictum. misguided precedents. lished however, dictum, publish chooses does frivolousness principles, those Under counsel attorneys and defense government appel- the likelihood depend on legal or having any it as not take should appel- but on whether lant’s suсcess with- upon proceedings effect precedential in law rational basis has a lant’s context of in the stated Supreme Court fact. As the *6 (1) is not sub- this case reasons:5 several Coppedge, rules of 28 pauperis in ject to the forma make and rules our statutes Since did not Mr. Pineda § 1915 because U.S.C. a matter of criminal case in a appeal (2) here; nei- pauperis in proceed forma that that showing of right, the burden raised, men- even briefed or has party ther through pros- the abused has right been under frivolousness subject the of tioned should, at litigation of frivolous ecution case; and the in this § 1915 the making times, pаrty the on all address, consider, even mention of not did is not the frivolity. It suggestion of opinion. in its subject of frivolousness the that his to show petitioner the burden Pineda’s Indeed, of majority affirmed Mr. the merit, he is that in the sense appeal merits, on and sentence conviction ulti- bound, prevail likely, or even in this dismissing appeal than rather heard, as is mately. is to He above, the ma- Finally, discussed as case. case, he a criminal appellant on the based apparently jority’s dictum if possi- only the analysis, I address my part of misreading, I do majority’s Contrary to the 5. appeals as to dismiss misguided motions ble majority on disagree with the merеly may be § that frivolous under recon- on "closed the book” whether James Rather, dictum response to the filed sideration Almendarez-Torres. clear, Until the Almendarez- ultra vires statements. I dis- preceding sections make two by a Su- squarely addressed Torres-issue is at- majority's agree unauthorized with the there is a majority, I believe preme Court Supreme Court will predict what tempt to rational, appeal and basis to non-frivolous and even respect do in to Almendarez-Torres Unlike, holding in that case. challenge the majority’s ultra vires strongly more book presume to make majority, do right fully I appeals discouraging statements Supreme Court decisions. future this Congressional acts. authorized makes a rational on the law a go tie must appellant, “our statutes and rules make an facts. a criminal case a right, matter [and] 447-48, Coppedge, 369 at U.S. 82 S.Ct. burden of showing that that has been added). 917.(emphasis abused through prosecution of frivo- Further, Anders, 744, at should, litigation times, lous át all be on S.Ct. Court stated that party making suggestion of frivoli- an appeal on a matter of law' is frivolous ty.” Coppedge, 447-48, 369 U.S. at where legal points “[none] of the [are] S.Ct. 917. arguable Also, on their merits.” Williams, is, course, Neitzke It 490 U.S. not appropriate to decide (1989), here whether an to overrule Al- Supreme Court had occasion to mendarez-Torres can construe be declared frivolous meaning § “frivolous” under 28 under former U.S.C. because this case 1915(d). The Court began by present does not noting question and we Appeals have, “[t]he Courts of have quite not considered any briefs or oral correctly view, in our generally argumént adopted subject. on the But it should be as formulae for evaluating pointed out generally, however, frivolousness that frivo- 1915(d) under close variants of the lousness will not defi- turn on the appellant’s nition of legal frivolousness likelihood of which we ar- ultimate success or on the ticulаted in the against Sixth odds Amendment case of Court overrul- Neitzke, Anders v. ing challenged its precedent, but on wheth- California.” er it possible 1827. The Neitzke to make a argu- rational Court went on to reconsideration, state that “a ment for complaint, overruling or containing as it does both factual limitation. If allega- likelihood of ultimate suc- tions and legal conclusions, cess is frivolous individual litigant in the Su- where it arguable preme lacks an criterion, basis either in were the Courts of law or in fact.” Appeals Id. at could dismiss frivolous substan- The Court tial portions dockets, observed that the in of their in light of the forma pauperis statute smаll judges “accords ... chance granted certiorari will be *7 authority to a dismiss claim and result in a based on an in any given decision case. indisputably legal theory.” meritless Put in that light, Id. that the 328, at 109 S.Ct. 1827. Court should reconsider Almen- darez-Torres does not on its appear face If and when we are confronted with a to be irrational or indisputably merit- motion to dismiss an individual legal theory. less challenging Almendarez-Torres as frivo- lous under 1915(e)(B)(i), we In Apprendi v. Jersey, New 530 U.S. will be required to question 466, decide the by 2348, 120 S.Ct.
applying the principles by (2000), established the the three argued blocs Justices Thus, Court. the issue in such a for three conflicting rationales. Justicе probably will hinge on Stevens, whether the writing controlling plurality that challenge overrule opinion joined or by in Justices Ginsburg and argument is based on an “indisputably Souter, a held that than the fact “[o]ther of a legal meritless theory,” an argua- prior conviction, “laek[s] any fact that increases law,” ble ... basis and altogether the penalty for a beyond crime pre- a argument.” “rational In deciding such a scribed statutory maximum must be sub- case we required are to bear in mind that mitted to a jury, proved beyond Thus, divided the Justices 490, 120 S.Ct. Id. doubt.” reasonable ra- conflicting but three according to their let stand so, expressly he doing 2348. In interpre- prоper as to the .viewpoints in Almendarez-Tor- tional decision the Court’s requirements [it] that arguable it is tation of Constitutional res, though “[e]ven decided,” it beyond and that was a reason- incorrectly jury proof trial and of a was underlying main or rational logical with The discon- inconsistent able doubt. holding of its decision.6 Almendarez- principle nect between underlying principles and the basic Torres Thomas, and Justice himself Justice were cases subsequent but Sealia, opinion joined and cannot opinions in the Justices’ clear that his view explain separately wrote Thom- as Justice As late be denied. rule broader requirеs “the Constitution that Almendarez- view repeated his 498, 120 Id. at adopts.” the Court than by this Court’s “has eroded Torres been by espoused broader rule 2348. 5.Ct. jurispru- Amendment subsequent Sixth is the same Sealia Thomas and Justices now dence, majority of the Court Stevens’s underlying Justice principle was Almendarez-Torres allowing recognizes Al that exception without holding v. United Shepard tradi “[T]his to stand. decided.” wrongly mendarez-Torres in a ‘crime’ understanding—that tional (2005). a basis law every fact that L.Ed.2d
cludes
increasing punishment—con
imposing
argued
Indeed,
justice has
no
ever
20th-century, at least
into the
tinued well
intrinsically
decisions
based
the two
....
century
To
middle
until the
they
сan
rationales or that
compatible
sharp
decision,
being
from
far
day’s
way.
any principled
logically
reconciled
nothing
marks
more
past,
break with
indicated,
recently
Stevens
Justice
ante—the
quo
status
a return
than
certiorari,
con
that he
denying
context
original
reflected
quo
status
being in
two decisions
to see the
tinued
Amend
and Sixth
meaning of the Fifth
uphold
might vote
he
but that
conflict
517, 120
Id. at
ments.”
on the doctrine
based
Almendarez-Torres
by the dis
expressed
view
A third
was
Rangel-Reyes
decisis.
of stare
and Jus
Rehnquist,
Chief Justice
senters:
U.S. -,
Breyer.
O’Connor, Kennedy, and
tices
Thomas,
(2006). Justice
L.Ed.2d
majority’s opinions
was that
Their view
forcefully thаt
argued
subject,
same
on the
prece
Court’s
inconsistent
were
overruled:
should
approval
“previous
given
dents and
this matter
duty to resolve
history
this
significant
.in
of—and
compelling,
particularly
sentencing
of—discretionary
country
*8
to
so.
do
court authorized
only
the
are
how the
to understand
it
difficult
judges,
Khan, 522 U.S.
Oil
See State
Co.
Amendments
Sixth,
Fifth,
and Fourteenth
(1997)
139 L.Ed.2d
S.Ct.
...
the Court’s
require
possibly
could
to
alone
(“[I]t
prerogative
this
Court’s
544,
protect his to further review. After plainly does not consideration, careful rejеcted gov- squarely address or resolve the conflict ernment’s that the claim was between Almendarez-Torres Ap- and the main from the dissented these five Justices James foot- law. The line prendí no reason thus had and holding in James entirety, states: note, in its it). to peripheral matters to take issue that contends James that extent To the Ap Justices, up made who five These conviction prior his fact of simple who only ones are the prendi majority, his by jury, to be found required was Almendarez- strongly admitted about whether James care is baseless. position Ap in his in exception an prior conviction as Torres of his continues fact James, case, we have in who in plea, and Justices prendi. guilty The other not be need convictions prior held successors or dissenters were either offense of the element as an treated little may care Apprendi, in dissenters Almenda- purposes. Amendment Sixth exception the Almendarez-Torres whether v. rez-Torres United likely survives, they are since Apprendi to 224, 118 S.Ct. without Apprendi with or against to be (1998). sum, concur any Justice’s exception. 1600, n. 8. at from James’ central in or dissent rence Florida of involving whether holding phrase last reads the majority here The signifies in of violence a crime of footnote fеnse was the second to a hold- opinion it as or her as incorrectly treats his nothing about and isolation Instead, it is dictum. sur case.7 should Almendarez-Torres in the ing whether the Flori- holding was that central James’s perish. vive or “violent felo- was a attempted burglary da to contend here also seems majority The Almendarez- Whether ny” ACCA. under vis d vis ACCA situation that James’ as continued be overruled Torres should a defendant that of parallel completely was principle to the exception an at issue reentry statute a vis illegal vis in reference James. issue not at simply This is in Almendarez-Torres. was un- 8 to Almendarez-Torres footnotе the ACCA provision so. Under position was James’s necessary because James, con- the defendant’s having ad- issue due to his anyway “baseless” and offense of the as an element charged viction prior conviction mitted his indictment, so that plea. in the guilty his be included of his indictment must element makes the indictment plea guilty of Al the survival on Almendarez-Torres argument based issue not at was mendarez-Torres irrelevant, as it did baseless, moot and James, Scalia and Justices opponents, illegal reen- Under Mr. case. James’s Justices Ste Thomas, its proponents, prior convic- statute, defendant’s try Souter, no reason had vens, Ginsburg and offense, not not an tion element insignificant, with the disagree agree or indictment, not neees- (four necessary to the of footnote dictum peripheral Almendarez-Torres”). majori- overruling two recent Cir- relies also 7. The standing for clear holdings as ty States these support: as United takes cuit decisions 845-46, WL will Grisel, Court acknowledgment that the 488 F.3d banc) (not- Cir.2007) (en (9th at *1 I cannot never revisit Almendarez-Torres. never been rather, ing stand, un- for the cases agree. These repeatedly applied been but has overruled that, such time principle until remarkable ); Court, recently in James most issue, does reconsider Suprеme Court Davis, F.3d 287- States v. follow Almendarez-Torres we are bound James, Cir.2007) (5th (noting, after good law. "explicitly refrained from *10 sarily included in the indictment.8 Conse-
quently, James, MEADOWS, unlike David the illegal reentry Plaintiff-Appellant, usually, defendant if always, can make a rational and argument relevant that but HARTFORD LIFE INSURANCE COM- for Almendarez-Torres he has been un- PANY; Hartford Life Private Place- constitutionally deprived of right put ment, LLC; Newport Group, Inc., the government proof to its jury before a Defendants-Appellees. thereby possibly avoid substantial No. 06-20743. enhancement of his sentence.9 United States Court of Appeals, reasons, For these I concur in the ma- Fifth Circuit. jority’s holding that Mr. Pineda’s conviс- tion and affirmed, July but I re- 2007. spectfully disagree with its statements and
dictum pertaining to the legitimacy ap- of
peals right of filed in this court federal
criminal defendants urging the reconsider-
ation and overruling of Almendarez-Tor-
res.
majority's
8. The
right
that the
to a
part,
which
belongs
it is a
to the
jury
alleged
on
prior
trial
conviction in-
Court not this court.
prejudicial
vites
evidence into the main trial
negligible
therefore is a
dispensable
reliance
Justice Stevens’
simply
a repetition
of an
of
statement
his individual
respecting
reasons
made
treating
recidivism differently as
petitions
denial of
certiorari
Ran
upon
It,
relied
Almendarez-Toires.
gel-Reyes
-,
course,
basis;
has a rational
but so does Jus-
is mis
tice
counter-argument
Thomas’
that "this
placed.
Justice Stevens’ statement for him
concern, of which earlier
were
courts
well
self
alone
"the doctrine of stare decisis
aware, does not make the traditional under-
provides a sufficient basis for the denial of
standing of what an
any
element is
appli-
less
certiorari
these
obviously
cases”
does cable
to the fact Ap-
conviction.”
constitute
resolution of the conflict between
prendi,