Tag Archives: ACCA

SCOTUS Goes For Defendant on ACCA Case – Update for June 27, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

“SEPARATE OCCASIONS” ACCA FINDING MUST BE BY JURY

In an unusual 6-3 lineup (with a vigorous dissent by Justice Ketanji Brown Jackson, who is widely assumed to be defendant-friendly), the Supreme Court ruled last week that the 5th and 6th Amendments require that imposing an Armed Career Criminal Act sentence on a convicted felon in possession of a firearm requires a jury, not a judge.

scotus161130The ACCA (18 USC 924(e)) imposes a mandatory 15-year prison term on a defendant convicted of being a felon in possession of a gun or ammo who has previously committed three violent felonies or serious drug offenses on separate occasions. Up to now, judges have made decisions on whether occasions were “separate” by a preponderance of the evidence. However, the Supremes hold that as an element of the offense, whether the felonies occurred on separate occasions, must be found by a jury and that the standard should be “beyond a reasonable doubt.”

circuitsplit220516Up to now, circuits have been split on whether a judge or a jury had to find that the three occasions were different. A Supreme Court opinion two years ago, Wooden v. United States, established standards for deciding when offenses had been committed on “different occasions.” Now, how those standards are to be decided has broken in favor of defendants as well.

A surprising twist in the case was that the government agreed with the defendant that the element should be found by a jury beyond a reasonable doubt:

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.

jury151228The decision is yet another chink in the armor of Almendarez-Torres v. United States, which permits a judge instead of a jury to find certain facts related to a defendant’s past offenses. That decision is at odds with Apprendi v New Jersey, which held that the elements of any statute that increased the statutory sentencing range had to be decided by a jury beyond a reasonable doubt.

The Erlinger majority described Almendarez-Torres as “an outlier” and “at best an exceptional departure” from historic practice. 

Erlinger v. United States, Case No 23-370, 2024 U.S. LEXIS 2715 (June 21, 2024)

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

Apprendi v. New Jersey, 530 U.S. 466 (2000)

– Thomas L. Root

SCOTUS Says ‘My Bad’ Remains Bad Forever under ACCA – Update for May 24, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

BABY DID A BAD, BAD THING…

The Supreme Court yesterday took on the role of a scold, holding in essence that if the thing was bad when you did it, the fact that it isn’t bad now doesn’t much matter.

gun160718The two defendants involved, Brown and Jackson, were convicted of being a felon in possession of a gun. Because each had three prior convictions in state court for what 18 USC § 924(e) calls a “serious drug offense,” the mandatory minimum sentence for each was 15 years under the Armed Career Criminal Act.

For a state crime to qualify as a “serious drug offense,” it must carry a maximum sentence of at least 10 years’ imprisonment and involve “a controlled substance… as defined in section 102 of the Controlled Substances Act. The CSA includes a schedule of controlled substances ( 21 USC §§ 811-12) which must be updated each year by the Attorney General.

So say you’re convicted three times in Seattle of trafficking frappacinone–a controlled substance that gives frappucinos their delicious froth–to local coffee shops. Frappacinone happens to be listed as a controlled substance by a caffeine-hating Attorney General. Then, 10 years later, a new AG who survives on Starbucks deschedules frappacinone, so that any 8-year-old with a parent’s credit card can get a frap buzz.

Unfortunately, you get caught carrying a gun (merely for protection from all the coffee shop owners you overcharged during your frappacinone-dealing days). Your three prior frap-trafficking drug convictions make you eligible for an ACCA sentence.

frappucino240524You argue to your sentencing judge that you might have been a drug dealer when you got convicted in Seattle of pushing frappucinone, but if you were doing it today, you’d just be a latter-day Howard Schultz. In other words, you argue that whether your three prior state-law convictions constitute a “serious drug offense” should depend on whether the drug you were pushing is on the federal schedules when you got caught with the gun, not when you got caught trafficking the coffee dope.

Yesterday, the Supreme Court ruled 6-3 that the state-law conviction was a “serious drug offense” if it qualified when a defendant commits the drug offense, not if it still qualified much later when a defendant commits the felon-in-possession offense.

“Precedent and statutory context support the Government’s interpretation,” the Court ruled. The “ACCA gauges what a defendant’s ‘history of criminal activity’ says about his or her ‘culpability and dangerousness.’ In previous cases, the Court has held that ACCA requires sentencing courts to examine the law as it was when the defendant violated it. This “backward-looking” approach supports the Government’s interpretation. And the plain language of the statute points to the same conclusion. Section 924(e)(2)(A)(i), which immediately precedes the provision at issue, defines a ‘serious drug offense’ to include, among other things, ‘offense[s] under the Controlled Substances Act.’ A later change in a federal drug schedule does not change the fact that an offense ‘under the CSA’ is a ‘serious drug offense.’”

In essence, if it was a bad, bad thing when baby did it, it remains a bad, bad thing forever.

babybad240524
The Court’s 6-3 split is not the “liberal justice-conservative justice” split pundits have come to expect. The dissent, written by Justice Ketanji Brown Jackson (who is not related to either defendant Brown or Jackson) was joined by Justice Elana Kagan and reputedly conservative Justice Neil Gorsuch. Justice Sonia Sotomayor, generally seen as a liberal justice, was with the majority. Justice Jackson’s dissent argued that where a statute like the ACCA cross-references another statute (the drug schedules of 21 USC § 812), we have always simply applied the version of the other provision in effect at the time the cross-referenced provision was needed, even if Congress amended that provision at some point in the past.”

Brown v. United States, Case Nos. 22-6389, 22-6640, 2024 U.S. LEXIS 2261 (May 23, 2024)

Courthouse News, Conviction timing is key to solving defunct drug charge sentencing row, Supreme Court says (May 23, 2024)

– Thomas L. Root

‘History Is Bunk’ Where Judicial Factfinding Is Concerned, Erlinger Argument Suggests – Update for March 28, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT ERLINGER ARGUMENT MAY LIMIT JUDICIAL FACT-FINDING IN ARMED CAREER CRIMINAL ACT CASES

scotus161130The Supreme Court justices appears to be siding with the defendant and the government on the issue of whether a jury instead of a judge has to find that a defendant is eligible for the Armed Career Criminal Act (18 USC 924(e)) mandatory 15-life sentence.

Under 18 USC 922(g)(1), a person previously convicted of a felony may not possess a gun or ammo. Violators face a sentence of 0 to 15 years. But if the defendant has three prior drug or violent crime convictions, the ACCA raises the minimum sentence to 15 years.

There are catches, including the requirement that the prior offenses have been committed on different occasions. Two years ago, in Wooden v. United States, the justices adopted a standard for determining when crimes are committed during a single occasion. In Wednesday’s argument, the issue was whether the 6th Amendment right to a jury trial in criminal cases means the jury rather than a judge must find the facts that qualify a defendant for an ACCA sentence.

That question is important because the Supreme Court has previously said that any fact that increases a penalty, other than the fact of a prior conviction, must be decided by the trier of fact, typically a jury, and proved beyond a reasonable doubt. Back in 2000, the Court held in Apprendi v. New Jersey that any facts that increased the statutory sentence must be decided by a jury. But there is an exception: in Almendarez-Torres v. United States, the Court held that the fact of a prior conviction may be found by a judge.

Justice Clarence Thomas has waged a lonely battle against Almendarez-Torres since Apprendi, and unsurprisingly asked as his first question after the defense’s opening statement – which urged limits on the Almendarez-Torres prior-conviction exception to Apprendi – “Wouldn’t it be more straightforward to overrule Almendarez-Torres?”

Some background: A judge sentenced Paul Erlinger to the ACCA 15-year minimum sentence based on the convictions for four burglaries committed when the defendant was 18 years old. Paul claimed the four burglaries were not committed on different occasions and thus could be used to sentence him under the law.

Paul argued the judge violated the 6th Amendment by engaging in judicial fact-finding but lost at the trial court and 7th Circuit.

Wednesday’s argument focused both on history and practicality.

The Supreme Court has moved broadly toward testing constitutional questions against historical analogues and traditions when reviewing present-day laws or practices. In the Court’s June 2022 New York State Rifle & Pistol Assn v. Bruen holding, the majority established a new test instructing courts to consider whether a similar law to the challenged one – such as banning felons from possessing guns – was on the books when the 2nd Amendment was enacted in 1791 or when the 14th Amendment was enacted in 1868.

Since then, arguments over the history and tradition behind different constitutional rights have been mainstays in briefs filed with the court.

historybunk240329“When we start talking about history, I get very annoyed, because in every history, there are exceptions,” Justice Sotomayor said during Wednesday’s session. “The question then becomes how many exceptions defeat the general rule.”

In Paul Erlinger’s case, she argued, it did not matter whether four or eight states allowed judges to make enhanced sentencing decisions around the year 1791 because either number did not “defeat the general rule” that defendants are entitled to jury trials.

Justice Brett Kavanaugh, on the other hand, found history relevant. “The text itself of the Constitution does not tell us the answer, just the bare words, correct?” he asked the court-appointed amicus arguing in favor of the ACCA. “So then we usually look to history. We might not like it, but unless we’re just making it up, I don’t know where else we’re going to look.”

The other issue, how a rule requiring juries to make habitual defender determinations would work in practice, was more problematic.

Justice Samuel Alito said the inquiry would be difficult for a jury because it centers on a “multidimensional and nuanced” look at a defendant’s past convictions. But the Dept of Justice attorney, while agreeing that that letting a jury decide would add some burden for prosecutors, “We believe it will be manageable.”

Erlinger’s lawyer noted that most criminal cases result in plea deals, meaning that this will be an issue in only a “handful of cases a year.”

Court-appointed counsel defending the ACCA warned that putting recidivism issues in front of a jury would alert it to the defendant’s past, and “would gravely prejudice defendants.” But Justice Sotomayor said that the criminal defense bar has already sided with Erlinger, suggesting that defense attorneys don’t think it will harm defendants to put the prior convictions in front of the jury.

The inverse of an Anders brief, where the lawyer wants to be found innocent by arguing that his client is guilty.

Chief Justice Roberts suggested the answer to any problem of jury prejudice would be to present the issue about prior crimes only after a jury has convicted a defendant of the current one in a bifurcated trial.

Wednesday’s argument suggested that the question of who must decide the issue of the existence of a prior conviction – the Almendarez-Torres issue – will not be disturbed by the Erlinger decision. Justice Ketanji Brown Jackson said that the “carve out” holds that judges can decide “the fact of a prior conviction. But Erlinger and the government say the rule should be read more narrowly to allow a judge to consider only facts “inherent” to the past convictions rather than conduct related to the offenses, like whether they were part of the same “occurrence.”

“Just move the fact-finding from the judge over to the jury, I don’t think it’s very much to ask,” Erlinger’s lawyer argued.

Justice Jackson wondered if upholding Erlinger’s position meant repeated litigation of crimes for which the defendant has already been convicted. Erlinger’s lawyer replied that that’s already happening: “It’s just whether or not the judge or the jury is going to make the finding.”

Erlinger v. United States, Case No. 23-370 (oral argument March 27, 2024)

Apprendi v. New Jersey, 530 U.S. 466 (2000)

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

Bloomberg Law, High Court Suggests Robust Jury Right for Longer Sentences (March 27, 2024)

Courthouse News Service, Supreme Court leans toward jury review for career criminal sentences (March 27, 2024)

Law360.com, Sotomayor ‘Annoyed’ By Supreme Court’s Focus On History (March 27, 2024)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Act “safety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

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

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

SCOTUS Argument Suggests a Narrowing of the ACCA – Update for December 5, 2023

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ORAL ARGUMENTS SUGGEST SCOTUS WILL SIDE WITH ACCA DEFENDANTS

The Supreme Court appears to be leaning toward Armed Career Criminal Act defendants who argue that a “serious drug felony” predicate for the 15-year mandatory minimum has to be determined by today’s standards rather than a backward-facing analysis.

drugdealer160922The ACCA directs that someone violating 18 USC § 922(g) by being a felon in possession of a gun or ammo who has three prior convictions for crimes of violence or a serious drug offense, is subject to a sentence starting at 15 years and going up to life in prison. Brown v. United States and Jackson v. United States, cases that were combined for argument because of the common question they raise, focus on “serious drug offense.” The Court heard arguments on the cases the Monday after Thanksgiving.

A “serious drug offense” felony that counts as one of the three predicates qualifying a defendant for the ACCA isn’t listed in the statute. Instead, the definition is based on whether the controlled substance involved is in the federal drug schedules administered by the Dept of Justice. As Justice Kagan put it during the argument, “What’s going to be a controlled substance next year is not necessarily the same as this year.”

Defendant Brown was once convicted of a state marijuana offense that he says no longer qualifies under the current federal drug laws as “serious.” Defendant Jackson makes the same claim about a prior state cocaine conviction. They both argue that whether a prior state drug felony is a “serious drug offense” should be judged by the schedule that exists as of the date of ACCA sentencing, not as of the date of the prior conviction.

Friendlier than it used to be...
Friendlier than it used to be…

Depending on which version of the schedule applies, a state drug conviction may or may not count as a predicate. The defendants gave the justices three options for deciding which schedule applied: the one in force at the time of the state drug offense, the one in force when the defendant committed the 18 USC § 922(g) crime or the one that applied when the defendant was sentenced for the federal gun crime.

The Trace – a gun control advocacy website – noted that for criminal justice reform groups, the Supremes’ 2022 New York State Rifle & Pistol Ass’n v. Bruen decision came with a silver lining, raising doubt about “many of the policies that have fed the country’s mass incarceration crisis… Many criminal justice reformers are not necessarily advocating for more guns or gun ownership… but they also don’t want gun laws applied unfairly or used to target black and brown communities already scarred by the ‘war on drugs’.”

A majority of the justices appeared unlikely to agree with the government that whether a conviction was a “serious drug felony” should be judged at the time of the previous drug conviction. They seemed to agree with Jackson’s attorney that a change in the federal drug schedules seemed to be “in effect” an amendment to the ACCA itself. “So if in effect it’s an amendment of ACCA, why is it treated differently or less exactingly than an actual amendment of ACCA?” Justice Clarence Thomas asked.

Whether the Court will determine that the definition of the prior drug felony is fixed as of the time of the felon-in-possession offense or as of the time of sentencing is a tougher read. That won’t be clear until the opinion issues sometime next spring.

Brown v. United States, Case No. 22-6389 (Sup. Ct, argued November 27, 2023)

Jackson v. United States, Case No. 22-6640 (Sup. Ct, argued November 27, 2023)

New York Times, Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes, (November 27, 2023)

The Trace, Supreme Court Hears Arguments on Mandatory Minimums for Drug Offenses, Gun Possession (November 29, 2023)

Bloomberg Law, Justices Back Criminal Defendants in Firearm Sentencing Rule (November 27, 2023)

– Thomas L. Root

Government Joins Petitioner In Urging SCOTUS ACCA Review – Update for November 17, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

GOVERNMENT SUPPORTS SCOTUS REVIEW OF ARMED CAREER CRIMINAL ACT ISSUE
May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

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.

relist230123Ohio 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) 

Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 1065 (2022)

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

Late is Still Late, But Early Is Not, 4th Circuit Says – Update for May 25, 2023

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2255 THAT WAS TOO EARLY IS NOT TOO LATE, 4TH CIRCUIT SAYS

hobbsact200218Andra Green was convicted of a series of Hobbs Act robberies, attempted robberies and conspiracies, along with several 18 USC § 924(c) offenses for using a gun during a crime of violence. Such § 924(c) offenses come with mandatory consecutive sentences and are thus beloved by prosecutors.

The reason for prosecutorial affection is illustrated in Andra’s case. Because someone died during one of the Hobbs Act robberies – a violation of 18 USC § 924(j) – Andra was sentenced to life in prison.

But a few years after Andra’s conviction, the Supreme Court decided Johnson v. United States in 2015. Johnson held that the residual clause of the definition of “crime of violence” – the part that said that a crime was violent if it carried a substantial likelihood that physical violence would result – was so vague as to be unconstitutional. Andra connected the dots – like a lot of prisoners did at the time – and figured that if Johnson invalidated the crime-of-violence residual clause for the Armed Career Criminal Act, the similarly-worded residual clause in 18 USC § 924(c) must be equally unconstitutional.

Andra filed a 28 USC § 2255 motion to vacate his § 924(c) and § 924(j) convictions based on his notion that Johnson should logically extend to § 924(c) crimes of violence. Such a § 2255 motion must be filed within strict time limits, such as within a year of the underlying conviction becoming final or within a year of a new constitutional holding that invalidates the conviction. (You can read the limitations in 28 USC § 2255(f)).

Andra was wrong: Johnson did not affect § 924(c) at all. The government argued that Andra’s petition was hopelessly late because it could not rely on Johnson, but instead had to be filed within a year of conviction (and it was four years late for that).

canary230525But Andra was prescient. Johnson may have had nothing to do with § 924(c) offenses directly, but it was the canary in the mine: the Supreme Court over the next few years would extend Johnson’s logic to 18 USC § 16(b) in Sessions v. Dimaya and then to § 924(c) in United States v. Davis. Andra’s petition was held in abeyance by the District Court and later the Fourth Circuit as all of this unfolded. Four years after Johnson, Davis held that the residual clause in § 924(c)’s definition was unconstitutionally vague as well.

Clearly, Andra’s § 2255 motion was untimely when he filed, because Johnson was not a constitutional ruling that would restart Andra’s § 2255 clock. That, as the 4th Circuit put it, made “the key question… whether Davis renders Green’s Johnson-based motion timely” after the fact.

Last week, the 4th said that being early ended up making Andra on time. For starters, it said, “[t]he Davis Court extended the holding of Johnson” to invalidate the “analogous” residual clause in § 924(c). Indeed, in concluding that § 924(c)’s residual clause is unconstitutionally vague, the Supreme Court noted that the clause “bear[s] more than a passing resemblance” to the ACCA residual clause it had struck down in Johnson. Davis thus confirmed what Andra’s motion asserted: that the vagueness analysis in Johnson also called into question the constitutionality of § 924(c)’s residual clause.

early230525The Circuit said the text of § 2255(f)(3) “is silent on how to address this particular scenario, where a petitioner filed a § 2255 motion within a year of a Supreme Court decision recognizing a closely analogous right, and the Supreme Court then recognized the specific right at issue during the pendency of the § 2255 proceedings.” The purpose of the statute of limitations supports extending the limitations period here, the 4th held, because the goal of the limitations in § 2255(f) is to “curb the abuse of the statutory writ of habeas corpus… including undue delays. A petitioner certainly does not contribute to undue delays by filing a § 2255 motion too early. And a petitioner does not abuse the writ by raising an argument, based on very persuasive but non-controlling Supreme Court precedent that the Supreme Court then endorses in a controlling decision.”

United States v. Green, Case No. 16-7168, 2023 U.S.App. LEXIS 11961 (4th Cir., May 16, 2023)

– Thomas L. Root

Supremes To Play ACCA Statute ‘Match Game’ – Update for May 23, 2023

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SCOTUS WILL REVIEW ACCA DRUG CONVICTION QUESTION
May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

The Supreme Court last week granted review to a pair of Armed Career Criminal Act cases addressing a question about the “serious drug offense” predicate for the mandatory 15-year ACCA gun possession sentence.

Under 18 USC § 922(g)(1), a person having been convicted of a crime punishable by more than a year in prison (generally speaking, a felony) is prohibited from possessing guns or ammo. (The offense is a little more complex than this, but for today’s purposes, let’s run with that definition). A § 922(g)(1) offense is punishable with a sentence from zero to 15 years.

However, if the defendant has been convicted of three prior crimes of violence or “serious drug offenses,” he or she is subject to the ACCA. The punishment is Draconian: a minimum of 15 years and a maximum of life in prison.

A “serious drug offense,” the subject of last week’s certiorari grant, is defined in 18 USC § 924(e)(2)(A) as being a federal controlled substance offense punishable by at least 10 years in prison or

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act ( 21 USC § 802 )), for which a maximum term of imprisonment of ten years or more is prescribed by law

Federal trial courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach, which requires determining whether the state drug offense elements are the same or narrower than those of its federal counterpart. If the state law is broader – such as defining a mixture of cocaine as including Coca-Cola – the state conviction would be considered too broad to qualify as an ACCA predicate.

The problem is that federal drug law often changes — such as when Congress decriminalized hemp, narrowing the federal definition of marijuana – but some state laws may not. Then, the defendant could have been guilty of an underlying serious drug offense at the time he or she caught the state case, but might not be guilty of a “serious drug offense” predicate if the statute is read next to federal law on the day he or she gets the ACCA sentence.

matchingacca230523Under the earlier version of federal law, the state and federal offenses matched — and the state offense was an ACCA predicate. Under the amended version, the offenses did not match — and the state offense would not be an ACCA predicate. Thus, the version of federal law that the court chooses to consult dictates the difference between serving a 15-year maximum or a 15-year minimum.

The issue presented, then, in the pair of cases the Supreme Court will review is whether ACCA’s “serious drug offense” definition incorporates the federal drug schedules in effect at the time of the ACCA offense or the federal drug schedules in effect at the time of the prior state drug offense.

Expect oral argument in the fall and a decision in the winter or spring of 2024.

Jackson v. United States, Case No 22-6640 (certiorari granted May 15, 2023)

Brown v. United States, Case No 22-6389 (certiorari granted May 15, 2023)

– Thomas L. Root

Circuits Go 1-1 In Wrestling Match with Taylor – Update for March 16, 2023

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

ONE UP, ONE DOWN ON § 924

Two Circuits checked in last week on crimes of violence and 18 USC § 924, the statute that mandates a consecutive mandatory minimum sentence when a gun is possessed or used during drug or violent offenses. When the dust settled, defendants went one-and-one.

gunknot181009If 924(c) Is Vacated, 924(j) Must Be, Too: In 2018, Dwaine Colleymore pleaded guilty to four criminal charges stemming from an attempted robbery, during which he fatally shot a man. Dwaine pleaded guilty to (1) conspiracy to commit Hobbs Act robbery in violation of 18 USC § 1951; (2) attempted Hobbs Act robbery in violation of 18 USC § 1951 and 2; (3) discharging a firearm during and in relation to a crime of violence in violation of 18 USC § 924(c); and (4) murdering a person with a firearm during and in relation to a crime of violence in violation of 18 USC § 924(j)(1). The judge sentenced him to 525 months (43+ years).

Dwaine was still on appeal when the Supreme Court decided United States v. Taylor last June. Last week, the 2nd Circuit reversed his §§ 924(c) and 924(j) convictions.

The Circuit ruled that after Taylor, attempted Hobbs Act robbery no longer qualifies as a crime of violence under § 924(c)(3)(A) “and therefore cannot serve as a predicate for Dwaine’s conviction under § 924(c)(1)(A). Furthermore,” the 2nd said, because an element of a § 924(j) murder offense is that the defendant killed someone ‘in the course of a violation of [924(c)],’ attempted Hobbs Act robbery also cannot serve as a predicate for Dwaine’s conviction under § 924(j)(1).”

“Having given due consideration to Taylor,” the Circuit held, “we vacate Colleymore’s convictions on Counts Three and Four.” The case was remanded to the district court for resentencing.

hobbs230316Beating the ACCA Like a Rented Mule: The 7th Circuit last week embarked on an exercise in pretzel logic to conclude that Hobbs Act robbery itself is crime of violence under the Armed Career Criminal Act.

Lavelle Harley argued that while § 924(c) defined a crime of violence as physical force against a person or property, the ACCA (18 USC 924(e)(2)) defined a crime of violence as physical force against a person only.

That should have ended matters. After all, a Hobbs Act robbery can be committed “by means of actual or threatened force, or violence, or fear of injury, immediate or future, to [a victim’s] person or property” 18 USC § 1951(b)(1). So it’s pretty clear that Hobbs Act robbery is not a crime of violence under the ACCA (although it is under 924[c]).

That wasn’t the result the 7th Circuit wanted. “We have to look beyond the force clause,” the 7th said, “to determine if Hobbs Act robbery committed using force against property qualifies as a violent felony under some other provision of ACCA.”

Under the ACCA‘s “enumerated clause,” extortion is listed as a crime of violence. “The question,” the Circuit explained, “then becomes whether a conviction of Hobbs Act robbery for using force against property fits within ACCA extortion.”

hobbes230316The Circuit halfway admitted it was using smoke and mirrors, noting that “a careful reader may be pausing at this point and questioning why we are using the generic definition of extortion to interpret ACCA’s enumerated clause when the Hobbs Act provides its own, similar definition… But remember the question we are trying to answer and the analysis that the categorical approach requires. We look to the Hobbs Act only to understand the elements of Hobbs Act robbery, the prior conviction at issue here. Once we understand those elements, our focus turns to ACCA… We assess whether each way of committing Hobbs Act robbery fits within ACCA’s definition of ‘violent felony’ in § 924(e)(2)(B). Put most simply, the Hobbs Act does not tell us what constitutes extortion under ACCA. That answer has to come from ACCA itself.”

But the Hobbs Act does define extortion, saying it is “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.”

Nevertheless, the 7th Circuit managed to conclude that “generic extortion encompasses Hobbs Act robbery using force against property. Make no mistake, the analysis is difficult, and the issue is close.”

hobbestiger230316The decision flies in the face of the rules of statutory construction, which say that when one definition in a single statute’s subsection differs from a definition in another subsection, Congress must be presumed to have intended the distinction. But the 7th Circuit intended to hold that a Hobbs Act robbery was a crime of violence for purposes of the ACCA, and through an intellectually dishonest opinion, did exactly that.

United States v. Collymore, Case No 19-596, 2023 USAppLEXIS 5388 (2d Cir, Mar 7, 2023)

United States v. Hatley, Case No 21-2534, 2023 USAppLEXIS 5290 (7th Cir, Mar 6, 2023)

– Thomas L. Root

D.C. Circuit Creates More “Compassionate Release” Circuit Confusion – Update for October 26, 2022

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

DC CIRCUIT HOLDS THAT CHANGES IN THE LAW CANNOT SUPPORT COMPASSIONATE RELEASE

circuitsplit220516The US Court of Appeals for the District of Columbia Circuit has deepened the circuit split on compassionate release, joining three other circuits in holding that a prisoner cannot use the fact he or she is serving a sentence that could not be imposed today as “extraordinary and compelling” reason for an 18 USC § 3582(c)(1)(A)(i) compassionate release.

In 2016, Curtis Jenkins was caught by D.C. police with drugs and a gun. He got bonded out of jail, but a short time later he was caught by D.C. police again with drugs and a gun. Curtis thus faced two 18 USC § 924(c) counts (for carrying a gun during drug trafficking) and a 15-year Armed Career Criminal Act count (18 USC § 924(e)), not to mention qualifying as a “career offender” under the Sentencing Guidelines (which dramatically jacks up the sentencing range).

Factor all of that into the mix, Curtis was looking at a minimum 45-year sentence. He did the wise thing, agreeing to a plea deal that carried a Guidelines range of 23-27 years. Despite that range – still a substantial chunk of time – The parties agreed to recommend only 12 years to the sentencing judge.

From there, things got even better. Curtis walked out of sentencing with eight years. For the math-challenged among us, good lawyering had cut Curtis’s sentence exposure by about 82%.

It looked like a great deal at the time, but after a few years, Curtis thought it had all turned to dust later.

First, in 2018, the First Step Act changed § 924(c) so that the 25-year add-on sentence required by law for the second § 924(c) violation would only apply if the second offense came after a first conviction. If that had been the law when Curtis was convicted, his 45-year mandatory minimum sentence would have been only 30 years.

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

Second, things changed for Curtis’s ACCA conviction. If a felon was caught with a gun back when Curtis was nabbed, he or she faced a zero-to-ten-year sentence. But if the defendant had three prior convictions for violent crimes or drug offenses, the sentence was a minimum 15 years. Two of Curtis’s predicate offenses qualifying him for the ACCA were for assault with a weapon. D.C. law at the time permitted conviction for that offense even when the assault was committed “recklessly.” But in 2021, the Supreme Court ruled in Borden v. United States that any crime that could be committed recklessly was not a “crime of violence” for ACCA purposes. If that had been the law when Curtis was convicted, his 30-year mandatory minimum sentence exposure would have dropped to only 10 years.

Third, the Court of Appeals held in United States v. Winstead that drug offenses relied on to qualify someone as a Guidelines career offender could not count when they were mere attempts. Curtis’s drug priors were for attempted drug distribution, meaning that the high sentencing range that applied because he was a Guidelines “career offender” would have been out, too.

Like that, all of the very good reasons Curtis once had for taking a 12-year deal disappeared like Halloween candy on trick-or-treat night. He moved for a sentence reduction, arguing that if he had made a deal based on the sentence exposure he would have faced if he were sentenced today, it would have been a lot lower.

emptybowl221027The district court denied Curtis’s
motion, holding that changes in the law were not the kind of “extraordinary and compelling” reasons for sentence reduction listed in USSG § 1B1.13, the Guidelines policy statement covering compassionate release motions. That statement does not bind the court, the judge ruled, but he nonetheless referred to it for “guidance.”

The district court said the First Step Act, Winstead, and Borden were irrelevant, because the compassionate-release statute does not permit courts to reexamine the lawfulness or fairness of a sentence as originally imposed.

Two weeks ago, the DC Circuit upheld the district court’s denial. “We agree with the 3rd, 7th, and 8th Circuits,” the appellate panel wrote. “To begin, there is nothing remotely extraordinary about statutes applying only prospectively. In fact, there is a strong presumption against statutory retroactivity, which is ‘deeply rooted in our jurisprudence’ and ‘embodies a legal doctrine older than our Republic’… [The Supreme Court has held that] in federal sentencing the ordinary practice is to apply new lower penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. And what “the Supreme Court views as the ‘ordinary practice’ cannot also be an ‘extraordinary … reason’ to deviate from that practice.”

extraordinary221027But other Circuits – including the 2nd, 4th, 5th, 9th and 10th – do consider such changes to be among the “extraordinary and compelling reasons” for sentence reduction that will drive a compassionate release motion. The Circuit split just exacerbated by Curtis’s D.C. Circuit decision will most likely be fixed not by the Supreme Court but rather by the newly-reconstituted Sentencing Commission.

The Commission, which just announced having received over 8,000 public comments on its announcement of proposed priorities – has its first public meeting set for this coming Friday. The Commission is expected to adopt its priorities for the coming year, the first of which is likely to be to amend § 1B1.13 to bring some predictability to compassionate release cases.

When that happens, § 1B1.13 will again be binding on the courts, and we can expect a little uniformity to be injected into what is now a chaotic compassionate release system.

United States v. Jenkins, Case No. 21-3089, 2022 U.S.App. LEXIS 28198 (D.C. Cir., Oct. 11, 2022)

U.S. Sentencing Commission, Public Meeting, October 28, 2022

U.S. Sentencing Commission, Public Comments on Priorities (October 23, 2022)

– Thomas L. Root