In U.S. v. Ordaz, 2005 WL 418533 (3d Cir. Feb. 23, 2005), the Third Circuit put an end to Blakely/Booker challenges regarding prior convictions. Ordaz was convicted after trial of various drug and conspiracy offenses. Relying on Apprendi and Blakely, he challenged the district court's drug weight determination (and other enhancements) and further argued that the fact of his purported prior convictions needed to be found by a jury before the district court could use them to enhance his sentence.
In its opinion, the Third Circuit briefly discusses Booker and concludes that the "net result" of Booker "was to delete the mandatory nature of the Guidelines and transform them to advisory guidelines for the information and use of the district courts in whom discretion has now been reinstated." Ordaz, 2005 WL 418533 at *3. Applying Booker to Ordaz's case, the Court concluded that Ordaz's challenges to drug weight, leader/organizer, use of a firearm, and obstruction of justice were "best determined by the District Court in the first instance and we therefore vacate the sentence and remand for resentencing in accordance with Booker." Id.
The Court then rejected Ordaz's argument that the fact of his prior convictions should have been submitted to the jury. The Court stated that it did not "gainsay that there is a tension between the spirit of Blakely and Booker that all facts that increase the sentence should be found by a jury and the Court's decision in Almendarez-Torres, which upholds sentences based on facts found by judges rather than juries." Id. at *5. Nevertheless, the Court concluded that Almendarez-Torres remained binding. Accordingly, it held that the district court's determination regarding the facts of Ordaz's prior convictions did not violate the Sixth Amendment, despite the fact that the sentences were based, in part, on facts found by a judge, rather than a jury.