Tag Archives: ACCA

The Error Is Harmless If You Really Did It – Update for March 5, 2026

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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.

HARMLESS ERROR MATTERS, NOT CATEGORICAL MISSTEP, 1ST SAYS

Anthony Shea was charged back in the 90s with a series of robberies that featured liberal use of firearms. He was convicted of a Hobbs Act conspiracy, several Hobbs Act robberies and two 18 USC § 924(c) offenses for using and carrying a gun during the crimes.

Tony’s jury was instructed that the predicate crime of violence for the two § 924(c) charges could be either Hobbs Act robbery or conspiracy to commit the same. The jury returned a general verdict of guilty as to all counts, including the two § 924(c) counts and their predicates, meaning that no one could tell on which predicate – the robbery or conspiracy –  the § 924(c)s were based.

However, in 2015, years after Tony’s conviction, the Supreme Court decided in Johnson v. United States that the residual clause in the Armed Career Criminal Act (18 USC § 924(e)(2)(B)) definition of “violent felony” was unconstitutionally vague. Later, SCOTUS held in United States v. Davis that the logic of Johnson extended to § 924(c), holding that the residual clause “crime of violence” under § 924(c)(3)(B) was unconstitutionally vague as well.

Tony got permission to file a successive 28 USC § 2255 motion based on Johnson in order to challenge his two § 924(c) convictions and his sentences. He argued that the court has to assume that the jury took the categorical approach, meaning that the facts of his particular robberies didn’t matter, just the elements of the crime. Because the jury could have convicted him of § 924(c) offenses based on a conspiracy – and conspiracies didn’t count as violent after Davis – he argued that the two § 924(c) counts had to be vacated.

The District Court disagreed. It found the error harmless, because Tony was convicted of the two robberies in which the guns were used, and those substantive offenses “did, and still do, qualify as predicate ‘crimes of violence’ under [s]ection 924(c).” The District Court thus held that the jury’s verdicts on the § 924(c) convictions “remain valid.”

Last week, the 1st Circuit agreed. Ordinarily, to determine whether it is harmless error for a district court to instruct a jury on “multiple theories of guilt, one of which is improper,” a court must examine the factual circumstances and the record before it in evaluating the effect of the error on the jury’s verdict. The Circuit rejected Tony’s approach, holding that there is “no reason why a different approach to harmless error review would be required or appropriate when the instructional error results from a district court’s erroneous instruction as to whether an offense qualifies as a ‘crime of violence’ under the categorical approach.

“The categorical approach,” the Circuit said, “is used to determine whether a court has erred in instructing the jury about whether a predicate offense constitutes a ‘crime of violence.’ But the determination on direct appeal of whether that error was harmless turns on whether, ‘in the setting of a particular case,’ that error may be ‘so unimportant and insignificant that [it] may… be deemed harmless.’”

Here, the jury found beyond a reasonable doubt that Tony had committed the robberies. Therefore, any error in not instructing the jury that the robberies – not the conspiracy – was the underlying crime of violence supporting the § 924(c) convictions was harmless.

Shea v. United States, Case Nos. 22-1055, 2026 U.S.App. LEXIS 5327 (1st Cir. February 23, 2026)

~ Thomas L. Root

The 65% Law (And Other Silliness) – Update for September 18, 2025

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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.

EASTER BUNNY SAYS 65% LAW GOES INTO EFFECT ON NOVEMBER 1ST

I would say the silly season is upon us, but that would wrongly imply that it ever left.

Last week, I had a half-dozen questions about changes in the First Step Act to provide relief to people with gun convictions under 18 USC § 924, about how the Armed Career Criminal Act’s drug predicates are changing, and – of course – how the long-anticipated “65% law” is about to go into effect. And every one of the questions said the same – it’s all happening on November 1st.

I repeat what has become my annual myth-busting ritual over the past decade:

  • No Guideline amendment becoming effective on November 1st will apply to anyone who has already been sentenced (that is, become retroactive). This is unfortunate, because the amendments represent fundamental changes that alter how judges impose sentences, manage post-conviction supervision, and evaluate requests for sentence reductions. But the sad fact is that the Commission proposed retroactivity for a few of the changes and then failed to adopt it for any of this year’s slate of changes.

And what will Congress do? Well, yesterday, the House passed H.R. 5140, lowering the age for which youth offenders in the District of Columbia can be tried as adults for certain criminal offenses, changing the threshold to 14 years of age. The Hill reports that “Republicans are set to vote on several other bills relating to D.C. crime later this week as they carry on President Trump’s crusade against crime in the nation’s capital after his 30-day takeover of the city’s police force expired.”

It’s a safe bet that no one in Congress has the stomach to pass any bill that will ease criminal laws or help prisoners.  The crusade, as The Hill described it, is against crime, not for crime.

  • This means that there is NO 65% bill, 65% law or 65% anything. There is NO proposal to cut federal sentences so that everyone will only serve 65% of their time. There is NO bill, law, NO directive from Trump, and NO anything else that will give inmates extra time off. Nothing, nada, zilch, bupkis.

As the Federalist – commenting on the mentally ill suspect accused of stabbing a Ukrainian immigrant to death last month in Charlotte, North Carolina – said last week, “Instead of buying into the dangerous lie that mass incarceration doesn’t work, we should be building more prisons and sending violent criminals there for lengthy sentences… What we’ve been doing for years now is dangerous and morally indefensible. Releasing violent criminals onto the streets, as White House deputy chief Stephen Miller said Tuesday, is a ‘form of political terrorism’ — perpetrated by Democrat elected officials against the people who live in their jurisdictions.”

Do these people sound like they’re interested in any common-sense criminal justice reform? Is there an Easter Bunny?

I am sure that I will have to write this again next year.  And the year after that.  And the year after that. Ad infinitum.

The Hill, House passes 2 bills overhauling DC sentencing policies (September 16, 2025)

The Federalist, We Need To Bring Back Mass Incarceration And Involuntary Commitment (September 10, 2025)

~ Thomas L. Root

‘What’s the Occasion?’ Is Not an Idle Question – Update for March 13, 2025

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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.

6TH CIRCUIT HOLDS ERLINGER ERROR IS NOT HARMLESS

errorA160425Kevin Cogdill was found guilty of an 18 USC § 922(g)(1) violation for possessing a gun after three prior drug felony offenses. The district court, over Kevin’s objection, determined that he committed his three prior drug offenses “on occasions different from one another,” subjecting him to an enhanced sentence of at least 15 years under the Armed Career Criminal Act.

Kevin appealed on the grounds that an 18 USC § 924(e) conviction – the ACCA statute – requires that a jury had to find that his priors had occurred on “occasions different from one another.” After the Supreme Court held in United States v. Erlinger that the “occasions different” standard in the statute was a jury question, Kevin’s case was remanded to the 6th Circuit.

Last week, the 6th agreed that the error was not harmless and remanded Kevin for resentencing.

The Circuit reviewed the record, finding that two of the priors related to selling — or possessing with intent to sell — methamphetamine. No one arrested Kevin between the June offense and the September offense, and he ultimately was convicted of both offenses on the same date. For all the record shows, “it is certainly possible…” that the drugs for these two offenses came from the same source. Kevin might have obtained a large quantity of methamphetamine, sold some of that stash in June, and then “was busted” for possessing with intent to sell the rest in September. Without any other information about how these crimes took place, it is reasonable to think that these crimes may have been ‘similar or intertwined’ and ‘share[d] a common scheme or purpose.’”

occasion250313The decision is noteworthy because of the expansive view of “occasions different” the court suggests. There was a time when occasions were thought to be different whenever a defendant had an opportunity to reflect on his conduct before the next drug sale or burglary. Back then, one night’s indiscretion was enough to make one an armed career criminal if caught with a gun 20 years later.

The appellate court’s holding suggests that the ACCA may become what it was intended to be, a means of immobilizing the worst of the worst rather than a bludgeon to be used on small-time dopers and footpads.

United States v. Cogdill, Case No. 22-5603, 2025 U.S.App. LEXIS 4902 (6th Cir. March 3, 2025)

– Thomas L. Root

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

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