Whether the Double Jeopardy Clause applies to habitual offender sentencing proceedings in light of the Court's evolving Sixth Amendment jurisprudence regarding criminal sentencing enhancements

No question identified. : convicted applicant of the substantive offenses, a further finding that he had committed the prior offenses would expose him to a substantial additional penalty as a habitual offender. App., infra, A5-A6, A9. The jury did return a conviction on the substantive offenses. Applying then-existing Colorado procedure, the trial court discharged the jury and set a hearing so that the judge could himself make the factfinding necessary to resolve the habitual counts. Id. at 5. Before the trial court could hold that hearing, however, this Court decided Erlinger v. United States, 602 U.S. 821 (2024). The Court there held that the U.S. Constitution’s Sixth Amendment requires that a jury make the determination whether a defendant had committed prior crimes triggering enhanced punishment under the Armed Career Criminal Act, a federal statute that in relevant part is substantially identical to Colorado’s habitual criminal sentencing scheme. The trial court in this case therefore held that, under Erlinger, the determination of applicant’s habitual offender status would have to be made by a jury. But, the court continued, because jeopardy already had attached, empaneling a second jury in the same case to make the habitual offender determination would violate applicant’s double jeopardy rights. The trial court therefore ordered the habitual offender counts dismissed. App. infra, at A7. The State challenged this ruling in an original proceeding before the Colorado Supreme Court, which reversed. That Court relied on Monge v. California, 524 U.S. 721 (1998), which had held that the Double Jeopardy Clause is inapplicable to noncapital sentencing proceedings because “the [sentencing] determinations at issue do not place a defendant in jeopardy for an ‘offense.” Id. at 728. See App., infra, A17A18. The court below noted applicant’s argument that Monge could not be reconciled with this Court’s more recent decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), Erlinger, and other rulings holding that any facts that “increase the prescribed range of penalties to which a criminal defendant is exposed’ are elements of the crime.” Alleyne v. United States, 570 U.S. 99, 111 (2018) (quoting Apprendi, 530 U.S. at 490). See App., infra, A19-A20. But the Colorado court rejected that view, observing that “the Erlinger court did not overrule Monge” and therefore that Erlinger “does not disrupt the well-settled precedent that double jeopardy protections do not apply in habitual criminal sentencing proceedings.” Jd. at A20, A22. Accordingly, the court below found dispositive Monge’s holding that sentencing “proceedings do not place a defendant in jeopardy for an offense.” Jd. at A20 (quoting Monge, 524 U.S. at 728) (internal quotation marks omitted). 2. The petition for a writ of certiorari will argue that review is warranted because the holding of Monge cannot be reconciled with the Court’s more recent decisions. In Monge, decided by a vote of five-to-four, the Court rejected “an absolute rule that an enhancement constitutes an element of the offense any time that it increases the maximum sentence.” 524 U.S. at 729. But just two years later, in Apprendi, the Court substantially repudiated that conclusion, holding that, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. This change in approach has been widely acknowledged; dissenting in Apprendi, Justice O’Connor recognized that the decision “will surely be remembered as a watershed change in constitutional law.” Id. at 524 (O’Connor, J., dissenting). In the succeeding years the Court repeatedly has applied and expanded Apprendi, most recently in Erlinger. The reasoning of Monge is inconsistent with the Apprendi line of decisions. As noted, Monge does not accept that a sentence “enhancement constitutes an element of the