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‘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

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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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

Trick or Treat – Update for October 28, 2022

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Today, a little early Halloween…

TREAT: SENATE BILL AIMED AT HELPING PREGNANT PRISONERS

treat221028Not that introduction of a bill this late in the Congressional season is much more than symbolism, but legislation introduced a few weeks ago by Sens Amy Klobuchar (D-MN) and Susan Collins R-ME) aims to improve care in federal prisons for pregnant and postpartum women and their babies.

The Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act (S.5027) would establish care standards for federal facilities across the country, requiring access to medical and mental health services, as well as education about parental rights and lactation.

The act would restrict when pregnant women can be placed in restrictive housing, ban the Bureau of Prisons and U.S. Marshal Service from placing pregnant women in solitary confinement during the third trimester, and require the BOP to evaluate pregnant women to determine if their pregnancy is high-risk.

Companion legislation in the House was introduced by Reps Karen Bass (D-CA) and Guy Reschenthaler (R-PA).

Sadly, the likelihood that this bill will be considered before the 117th Congress expires on January 2, 2023, is remote.

Gov’t Executive, Senate Bill Aims to Improve Care for Pregnant Women and Babies in Federal Prisons (October 18, 2022)

S. 5027, Protecting the Health and Wellness of Babies and Pregnant Women in Custody Act

TRICK: IF AT FIRST YOU DON’T SUCCEED…

trick221028After Dan Kordash got caught at the airport by Customs and Border Protection officers after declaring he was carrying $12,000 in currency that turned out to be more like $33,000 (money which he forfeited), he was detained and questioned by CBP on at least two subsequent occasions. What’s worse, CBP officers told Dan that because of the money incident, he could count on always getting the third degree when he passed through the airport.

Dan filed Bivens claims against the CBP officers who detained him. The district court found that the officers had qualified immunity and dismissed the complaint. Not to be deterred, Dan then filed a Federal Tort Claims Act complaint for false imprisonment, battery, assault, intentional infliction of emotional distress, and negligence. The district court dismissed the new complaint as well for failure to state a claim, and Kordash appealed.

Last week, the 11th Circuit upheld the FTCA dismissal, holding that the doctrine of collateral estoppel meant that the Bivens suit determination that the officers acted lawfully in furtherance of federal policy should apply to the FTCA suit as well.

The 11th held that the issue in the FTCA case – whether the officers’ acts had a “nexus” with furthering federal policy and complied with federal law – was identical to the issue in the Bivens action. “In the Bivens action,” the Circuit said, “the district court determined for each incident when Kordash or Nilsen were stopped whether the officers acted within their discretionary authority and whether the detentions complied with federal law. Here, the same legal inquiries govern the application of the Supremacy Clause as a bar to liability for claims arising out of these incidents under the Federal Tort Claims Act.”

Because the issue met the test for issue preclusion, “Kordash is barred from relitigating these issues under the doctrine of collateral estoppel.”

Kordash v. United States, Case No. 21-12151, 2022 U.S.App. LEXIS 29420 (11th Cir., Oct. 21, 2022)

TREAT: MINNESOTA DRUG SALE STATUTES OVERBROAD

treatB221028The 8th Circuit ruled last week that because Minnesota’s definitions of “narcotic drug” and cocaine“ include drugs that the federal controlled-substance schedules do not, convictions under those statutes are not predicate “serious drug offense” under the Armed Career Criminal Act.

While the defendant was still convicted of a felon-in-possession count under 18 U.S.C. § 922(g)(1), his sentence exposure fell from 15 years to life all the way down to zero to 10 years.

United States v. Owen, Case No. 21-3870, 2022 U.S.App. LEXIS 28979 (8th Cir., Oct. 19, 2022)

– Thomas L. Root

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 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.

THE OCCASIONAL CRIME

As I reported last week, on March 7, the Supreme Court unanimously reversed a sentence in the case of Dale Wooden, a man who had received an Armed Career Criminal Act-enhanced 15-year sentence for having committed ten prior burglaries. He had broken into a self-storage building and burgled ten separate units all in one hour’s work.

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 is a penalty statute. If someone possesses a firearm or ammunition while being prohibited from doing so – 18 USC § 922(g) includes prior felony convictions, being a fugitive, using controlled substances, even having a dishonorable discharge, and a host of other prohibitions – the penalty is up to ten years in prison. But if the defendant has been convicted of three violent felonies or serious drug offenses, and those three offenses were committed on “occasions different from one another,” the penalty jumps to a minimum of 15 years and a maximum of life without parole. Rather harsh…

Dale only had one wild night in a storage facility, when he broke through flimsy drywall walls separating individual storage units and took what he could find. But the state charged him with ten burglaries, which are considered to be violent crimes. Many years later, when a police officer who had stopped by Dale’s house saw a gun in plain sight, Dale was charged as a felon-in-possession. An enterprising U.S. Attorney figured that the ten burglaries had been committed on “occasions different from one another,” because, after all, you can only burgle one storage unit at a time. And that is how Dale became an armed career criminal.

Whether the occasions really were different from one another was the question that made it to the Supreme Court. Interpreting the ACCA’s “on occasions different from one another” language, all nine justices agreed that Dale’s ten burglaries occurred during the same “occasion.” Writing for the court, Justice Kagan first explained that according to its ordinary meaning, an occasion is “essentially an episode or event. If one learned about Wooden’s burglary spree,” Kagan explained, “they would say: ‘On one occasion, Wooden burglarized ten units in a storage facility.’ A person would not say: ‘On ten occasions, Wooden burglarized a unit in the facility.’ Nor would the average person describe Wooden breaking into each separate unit as its own independent occasion. Indeed, one need only turn to the dictionary to confirm this to be true, as the word occasion ‘commonly refers to an event, occurrence, happening, or episode’.”

If the Hamburglar stole them on successive days...
If the Hamburglar stole them on successive days…

Kagan ruled that “by treating each temporally distinct offense as its own occasion,” the government’s interpretation of the word “occasion” essentially collapses “two separate statutory conditions.” Kagan noted that the history of the “occasions” clause supports this interpretation. Congress amended ACCA to include the clause in order to write the Solicitor General’s position in United States v. Petty into law. In Petty, the Solicitor General admitted to the Supreme Court that the ACCA should be triggered only when a person’s prior convictions result from “multiple criminal episodes” even though such a requirement was not founded in ACCA’s text. Kagan explained that Congress amended ACCA to include the “separate occasions” requirement.

Recognizing that courts may struggle to define “separate occasions,” Kagan suggested standards: If offenses are committed “close in time,” they “will often count as part of one occasion; not so offenses separate by substantial gaps in time or significant intervening events.” She explained that in defining an occasion, “proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event.” Finally, Kagan noted that “the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses… the more apt they are to compose one occasion.” She said that “applying this approach” will usually “be straightforward and intuitive.

Justices Gorsuch and Sotomayor were unsure how straightforward Kagan’s approach would be, given that different people may have “different intuitions about the same set of facts.” A multifactor balancing test, he wrote, did not give lower courts adequate guidance. “Imagine a defendant who sells drugs to the same undercover police officer twice at the same street corner one hour apart,” he wrote. “Do the sales take place on the same occasion or different ones?”

burglthree160124Gorsuch added that Kagan’s factors did not conclusively answer the question presented in the Wooden case. “When it comes to location, each storage unit had its own number and space, each burglary infringed on a different person’s property, and Mr. Wooden had to break through a new wall to enter each one,” Justice Gorsuch wrote. “Suppose this case involved not adjacent storage units but adjacent townhomes or adjacent stores in a mall. If Mr. Wooden had torn through the walls separating them, would we really say his crimes occurred at the same location?”

In Gorsuch’s view, the rule of lenity – the principle that courts should resolve statutory ambiguities in favor of criminal defendants – should come into play when courts struggle to decide whether crimes were committed as part of a single “occasion.”

Because Wooden’s decision interprets a statute, inmates in many circuits will be able to retroactively apply the decision to their ACCA convictions under the 28 USC § 2255(e) saving clause. It seems likely that the courts will struggle in applying the standards to the movant’s respective facts. Dale Wooden’s case seemed almost nonsensical. But what about (all too common) the guy who sold cocaine on a street corner for three successive days, and was convicted of three state-court distribution counts? Were those the same occasion? Or robs three banks in a week-long drug-addled frenzy?

The lawyers will be busy…

Wooden v. United States, Case No 20-5279, 2022 U.S. LEXIS 1421 (Mar 7, 2022)

SCOTUSBlog, Perhaps defining an “occasion” is not so difficult after all (March 8, 2022)

New York Times, Supreme Court Says 10 Burglaries Can Count as One Offense (March 7, 2022)

– Thomas L. Root

ACCA Arguments Show SCOTUS Skepticism – Update for October 11, 2021

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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.

READING SUPREME COURT TEA LEAVES ON ACCA

tea160404When I was a young lawyer, I figured out very quickly that it’s dangerous to try to predict the outcome of an appeal case based on the questions asked by the court during oral argument. But I will go out on a limb by predicting that the definition of “occasions different from one another” in the Armed Career Criminal Act is about to become more defendant-friendly.

To qualify for an ACCA 15-year minimum sentence, a defendant has to have three prior convictions for drug or violent offenses that were committed on “different occasions.” Over the years, a number of circuits – including the 6th – have collapsed “different occasions” so that a guy like William Wooden who broke into a self-storage building and stole from 10 units was held to have committed the crimes on “different occasions.”

Last Monday, the Supreme Court strained to answer what Justice Samuel Alito called a “nearly impossible question,” what it means for crimes to be different occasions. Both the government’s and Woden’s interpretation of “occasion” troubled the justices. In Justice Elena Kagan’s words, Bill Wooden’s interpretation of what constitutes an occasion felt “loosey-goosey.” But Justice Brett Kavanaugh suggested the government’s interpretation seemed to defy “common sense intuition.”

BettyWhiteACCA180503

It may not be the parties, but instead the statute. Justice Samuel Alito argued that this was “a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.” In the same vein, Justice Sonia Sotomayor suggested the statute might be “so vague” that it is “incapable of rational application.” Justices Clarence Thomas and Amy Coney Barrett wondered if there were Sixth Amendment concerns given that both of the proposed interpretations may require improper judicial factfinding. And Justice Neil Gorsuch pondered what the court is to do if the justices find ambiguity “either way” — does the rule of lenity apply such that the tie breaks in favor of the defendant?

Justice Barrett said that it’s important for a jury to be able to understand when crimes should be considered separate offenses. The difference in terms of criminal activity, she said, is that “it is difficult to let the jury know when this event begins and when it ends.”

Expect a decision in February or March. I predict a near-unanimous court overturning Bill’s sentence, and – in the process – opening the door for some post-conviction ACCA challenges.

Bloomberg Law, Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal (October 4, 2021)

SCOTUSBlog, A hypothetical-filled argument proves how tricky it is to define an “occasion” (October 5, 2021)

Courthouse News Service, Burglary of many units in one facility poses counting challenge at sentencing (October 4, 2021)

– Thomas L. Root