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GOVERNMENT SUPPORTS SCOTUS REVIEW OF ARMED CAREER CRIMINAL ACT ISSUE

The Armed Career Criminal Act provides that if convicted felons who possess firearms in violation of 18 USC § 922(g)(1) have three prior convictions for serious drug offenses or crimes of violence (or a mix of the two), they are subject to a 15-year-to-life sentence, with 15 years being the mandatory minimum.  The ACCA statute, 18 USC § 924(e)(2), can only be applied if the defendant has committed the three predicate offenses on different occasions.

Up to now, circuits have been split on whether a judge or a jury had to find that the three occasions were different. Recently, a Supreme Court opinion, Wooden v. United States, established standards for deciding when offenses had been committed on “different occasions.” Now, a pending petition for certiorari asks the Supreme Court to determine whether the Sixth Amendment requires a jury to find (or a defendant to admit) that the occasions really were different.

Surprisingly, the government agrees with the defendant that SCOTUS should hear the case:

Petitioner renews his contention that the 6th Amendment requires a jury to find (or a defendant to admit) that predicate offenses were under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v United States,  the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

The Supreme Court considered the petition at its November 9th conference but relisted it for today’s conference. We could know Monday, but there is a decent chance that it will be relisted again.

Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, observed that Justice Clarence Thomas “has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights.” In the 1998 Almendarez-Torres v. United States decision, the Supremes held that a court need not have proof beyond a reasonable doubt of prior convictions. Berman suggests that Erlinger could provide the Supreme Court “an opportunity to reconsider that (historically suspect) exception altogether.”

Brief for Government, Erlinger v. United States, Case No 23-370 (October 17, 2023) 

Almendarez-Torres v. United States, 523 US 224 (1998)

Sentencing Law and Policy, US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act (November 7, 2023)

– Thomas L. Root