Tag Archives: serious drug offense

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

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.

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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

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

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

2255 Hair-Splitting and the Power of Advertising – Update for August 15, 2023

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

A 2255 PAIR

Two federal appellate court decisions last week of interest on motions for post-conviction relief under 28 USC § 2255:

Denaturalization is Too Collateral for Padilla, Circuit Says: In 2006, Abe Farhane – a naturalized American citizen – pled guilty to lying to the government and conspiring to commit money laundering. After Abe was released in 2017, the government started denaturalization proceedings to strip him of his citizenship under 8 USC § 1451(a) for having become a citizen by “concealment of a material fact or by willful misrepresentation.”

deport170113Abe was still on supervised release after his prison sentence, which entitled him to file a 28 USC § 2255 motion for post-conviction relief. Abe filed a § 2255 motion claiming he received ineffective assistance of counsel because his lawyer never told him he might lose his citizenship and be deported due to his guilty plea. Had he known that, Abe argued, he never would have entered a guilty plea.

His § 2255 was denied, and last week, the 2nd Circuit upheld the decision.

splithair170727The Supreme Court held in the 2009 Padilla v. Kentucky decision that a lawyer has a duty to “inform her client whether his plea carries a risk of deportation,” noting that there was no “distinction between direct and collateral consequences” of a guilty plea when measuring the effectiveness of counsel. But the 2nd Circuit said that Padilla had no role in this case, because “civil denaturalization is a separate proceeding that may or may not occur following the plea. The government exercises considerable discretion in bringing denaturalization cases, as does the district court in evaluating the evidence… indeed, the government could seek to denaturalize Farhane without relying on his guilty plea. Instead, it turns on the defendant’s actual conduct.”

The Court’s hair-splitting seems to be a distinction without a difference, as the dissenting judge in the 2-1 decision pointed out.

Farhane v. United States, Case No. 20-1666, 2023 U.S.App. LEXIS 20960 (2d Cir. Aug. 11, 2023)

Advertising Makes Illinois Drug Statute Overbroad: After Otis Elion pled guilty to distributing meth, and he was sentenced as a career offender under USSG § 4B1.1. That Guideline increases sentencing exposure dramatically for someone with two prior convictions for crimes of violence or serious drug felonies.

Otis’s attorney did not challenge that designation, and the court imposed a 167-month prison term.

In a § 2255 motion, Otis argued his attorney’s failure to object amounted to ineffective assistance because two of the three predicates were convictions under Illinois law for “look-alike” drugs, and those offenses did not fit within the statute’s definition of serious drug felonies.

Otis’s district court denied relief.

Last week, the 7th Circuit reversed, concluding that Otis was properly sentenced as a career offender and, therefore, did not suffer prejudice from counsel’s performance.

A “serious drug felony” is a federal drug trafficking offense or a state offense that matches the Guidelines definition of controlled substance offense. If the elements of the state crime are the same as, or narrower than, the elements of the Guidelines offense, “the crime of conviction qualifies as a predicate offense.”

advertising230815Otis’s Illinois offense made it “unlawful for any person knowingly to manufacture, distribute, advertise, or possess with intent to manufacture or distribute a lookalike substance,” and defines advertise as “the attempt, by publication, dissemination, solicitation or circulation, to induce directly or indirectly any person to acquire, or enter into an obligation to acquire” a controlled substance.

The 7th said the Illinois statute is broader than 21 USC § 841 and thus could not be a predicate for Guidelines “career offender” status. “Advertise is an independent word in the statute, and its definition uses the term induce, not sell or distribute. Given this, we decline to read ‘advertise’ as merely restating, in narrower terms, what other statutory language already covers. For these reasons, the look-alike statute’s inclusion of ‘advertise’ means it punishes a broader range of conduct than the Guidelines controlled substance offense.”

The Circuit reversed the denial of his § 2255 motion and remanded the case “for an evaluation of counsel’s performance.”

Elion v. United States, Case No. 20-1725, 2023 U.S.App. LEXIS 20286 (7th Cir. Aug. 7, 2023)

– Thomas L. Root

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

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

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

Trick or Treat – Update for October 28, 2022

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

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

Supreme Court Disappoints on Shular – Update for March 2, 2020

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 REJECTS EFFORT TO NARROW ACCA-PREDICATE DRUG CRIMES

The Supreme Court last week refused to extend the Taylor/Mathis “categorical” approach – an approach that has substantially narrowed the definition of a crime of violence – to “serious drug offense” prior convictions that can qualify a defendant for the Armed Career Criminal Act 15-year mandatory minimum.

A unanimous court held in Shular v. United States that the only thing that matters in analyzing whether a prior conviction is a “serious drug offense” is that the state offense involve the conduct specified in the ACCA, not that the state offense match some particular generic drug offense.

A primer: The ACCA is a penalty statute that applies to 18 USC § 922(g)(1), the so-called felon-in-possession statute. Section 922(g)(1) prohibits people with a prior conviction for a felony from possessing guns or ammo. The penalty for violating 922(g)(1) is set out in 18 USC 924(a), a sentence of zero to ten years in prison.

Robber160229However, there’s a kicker.  If the defendant has three prior convictions for crimes of violence, serious drug felonies (or a combination of the two), he or she is considered an “armed career criminal,” and the penalty skyrockets to a minimum of 15 years and a maximum of life. This enhanced penalty is set out in a different subsection, 18 USC § 924(e)(2), and is known as the Armed Career Criminal Act.

The ACCA includes definitions of what constitutes a crime of violence and what qualifies as a “serious drug felony.” The “crime of violence” definition has been the subject of a number of Supreme Court decisions in the last decade or so, including findings that one subsection – which provided that a crime was violent if it carried a substantial likelihood of physical harm – was unconstitutionally vague (Johnson v. United States, 2015). Judging whether and the requirement that when judging whether a state conviction was a crime of violence, the district court had to apply the “categorical approach.” Under that approach, one would not look at what the defendant was convicted of having done, but instead whether the offense could be committed (and reasonably would be prosecuted) without any violent physical conduct.

A good example of this is found in our review last month of Hobbs Act robbery. Everyone agrees that a robbery is violent – after all, use of force or threat of force is an element. But is an attempted Hobbs Act robbery violent? One can be convicted of attempted Hobbs Act robbery by walking up to the bank’s front door carrying a mask and a gun. That act requires no violence at all.

drugdealer180228But for all of the ink that’s been spilled on ACCA crimes of violence, the “serious drug offense” definition has been unscathed. That definition provides that a prior drug conviction counts toward the ACCA’s three-conviction predicate only if it involves “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Seems simple. But it’s not.

Defendant Eddie Shular argued that the terms in the statute are shorthand for the elements of the prior offense. He maintained that a district court had to first identify the elements of the “generic” drug offense, that is, the offense that Congress must have had in mind when it wrote the statute. The district court then had to ask whether the elements of the defendant’s prior state offense matched those of the generic crime.

This was important to Eddie, because he said his prior Florida drug convictions did not include a mens rea element, that is, they lacked the requirement that he had to know the substance he possessed was illegal.

oldlady200302Assume Eddie was right that the Florida statute lacked a mens rea requirement. Such a statute, that made it a felony to possess illegal drugs with an intention to distribute, would permit conviction of a little old lady who went to pick up her neighbor’s laxative at the drug store as a favor, but was accidentally given Oxycontin instead. After she gave the drug store bag to her neighbor, she would have possessed a controlled substance, and she would have distributed it. Eddie argued that a defective statute like that had to be measured against a generally-accepted generic PWITD statute, one that required the defendant know that he or she possessed an illegal substance.

The Supreme Court didn’t buy it. Instead, the Justices unanimously sided with the government’s view, that the a court should simply ask whether the prior state offense’s elements “necessarily entail one of the types of conduct” identified in the statute. In other words, the terms ““manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” described conduct, not elements. It does not matter how many possible ways there might be to violate the state statute, nor does it matter whether other elements were present or lacking. If the defendant’s conduct was one of the listed terms, the prior felony was a “serious drug offense.”

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(For what it’s worth, the Court’s opinion disputed Eddie’s contention that the Florida statute lacked a mens rea element, but the unanimous decision focused on the “conduct vs. elements” debate, not about the intricacies of the Florida statute.)

The decision is a disappointment for people who hoped the decision would do for ACCA people with drug priors what Taylor and Mathis did for crimes of violence. Leah Litman, a law professor at University of California – Irvine, wrote in SCOTUSBlog that the Shular decision “confirms two realities of the court’s docket. The first is the ease with which the court finds unanimity in ruling against criminal defendants; the second is the sprawling reach of federal criminal law, particularly with respect to drugs, guns and immigration.”

Shular v. United States, 2020 U.S. LEXIS 1366 (Supreme Ct. Feb. 26, 2020)

– Thomas L. Root

Supremes Run Down the ACCA ‘Rabbit Hole’ – Update for January 29, 2020

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

DON’T HOLD YOUR BREATH WAITING FOR SHULAR

It’s a fool’s game to try to guess the outcome of a Supreme Court case by reading the oral argument. But still, last week’s Shular v. United States hearing shouldn’t have any inmate giving away the contents of his locker in expectation of quick release.

gunwife200130Shular asks the court to interpret the Armed Career Criminal Act definition of “serious drug offense” to require that a prior state conviction find the defendant “knowingly” handled a controlled substance, which Eddie Shular’s Florida prior did not. His precise question is whether the determination of a “serious drug offense” under the ACCA requires the same categorical approach used in the determination of a “violent felony.”

Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.” The government is arguing that the words following “involving” describe only conduct, regardless of a defendant’s intent.

Justice Alito is clearly skeptical of Shular’s approach. Surprisingly, similar misgivings were voiced by Justices Ginsburg and Kagan, with Gorsuch on the fence but leaning toward the government. Justice Thomas revealed nothing, but is a reliable vote for the government.

Shular argues that without a mens rea requirement, and with the squishy “involving” standard, people could get prosecuted for unknowingly distributing or possessing drugs was misplaced. Justice Alito argued that because ACCA is aimed at repeat offenders, the statute’s penalties are triggered only when a defendant has multiple prior convictions. It was doubtful someone would unknowingly distribute or possess drugs twice.

bunnygun190423Justice Breyer asked the government whether its interpretation of “involving” as not including a mens rea requirement would sweep in prior convictions that only tangentially or remotely involved controlled substances. SCOTUSBlog observed that “although Breyer’s skeptical questioning of the government is often a good sign for a criminal defendant, it is unclear if there are five votes for Shular. Some of the court’s textualists had serious misgivings about Shular’s interpretation, and several justices seemed eager to disavow that interpretation to the extent it required courts to construct generic definitions of offenses… The one concern that seemed to unite several of the justices (including unusual bedfellows Gorsuch and Breyer) was the uncertain and potentially expansive reach of the government’s interpretation of the ACCA. Time will tell whether the court is willing to throw the dice and take the risk of going down another ACCA rabbit hole, this one about the possible reach of the word ‘involving’.”

SCOTUSBlog, Argument analysis: Another ACCA rabbit hole? (Jan. 21)

Sentencing Law and Policy, SCOTUS to contemplate yet another level of ACCA jurisprudential hell with Shular oral argument (Jan. 20)

– Thomas L. Root

Another ACCA Predicate Bites the Dust – Update for September 18, 2018

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

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9TH CIRCUIT HOLDS WASHINGTON STATE DRUG STATUTE OVERBROAD FOR ACCA

A year ago, the 9th Circuit ruled in United States v. Valdivia-Flores that Washington State’s accomplice liability statute rendered its drug trafficking law categorically broader than a federal drug trafficking equivalent. Thus, a Washington drug conviction was found to not categorically constitute an illicit trafficking offense and to not be an aggravated felony under the Immigration and Nationality Act.

abet180919The federal aiding-and-abetting standard requires the government to prove an accomplice has “specific intent” to facilitate the crime. Washington law by contrast requires only that the government prove a person “with knowledge that it will promote or facilitate the commission of the crime… solicits, commands, encourages, or requests the principal to commit it; or aids or agrees to aid [the principal] in planning or committing it.”

drugdealer180228Specific intent and knowledge are distinct. “Intentionally abetting the commission of a crime involves a more culpable state of mind than knowingly doing so.” Validivia-Flores held, “because the Washington statute does criminalize conduct that would not constitute a drug offense under federal law — due to the distinct aiding and abetting definitions — it is overbroad.”

Last week, although the government vigorously argued to the contrary, the 9th Circuit ruled there was no pertinent difference between the “serious drug offense” description in the Armed Career Criminal Act and the generic “illicit trafficking” described in the statute analyzed in Valdivia-Flores. Thus, the Washington drug statute is broad than the generic drug offense that constitutes a “serious drug felony” under the ACCA, and no longer can count as a predicate for an ACCA conviction.

United States v. Franklin, Case No. 17-30011 (9th Cir. Sept. 13, 2018)

– Thomas L. Root

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Meatloaf Was Right – Update for February 27, 2018

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

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TWO OUTTA THREE AIN’T BAD…

twoouttathreeb161026Under the Armed Career Criminal Act, a defendant convicted of possession of a firearm as a convicted felon would see his or her sentence increase from a 0-10 year range to a 15-year-to-life range if he or she had three prior convictions for crimes of violence or serious drug offenses. Any who could possibly object? It makes perfect sense that we would want to get these gun-wielding lifetime lowlives off the streets for a long time.

Likewise the Sentencing Guidelines, which jack up the sentencing ranges for what it calls “career offenders,” people getting convicted of drug or violent crime offenses with only two qualifying priors of much the same flavor as the ACCA predicates. Think of Guidelines “career offenders” as “ACCA Lite.” Nevertheless, who among us law-abiding citizens would not want to see these no-goodniks safely behind bars for a long time?

But things seldom work out in practice the way they sound in a Capitol Hill soundbite. The prosecutors ran with it, and so we had people getting the ACCA label for prior offenses of drunk driving or walking away from a halfway house. We personally know one guy who broke into a barbershop one night, and – while he was there – went to the door leading to the attached beauty shop. Hr got bupkis in the burglary, but 10 years later, the prosecutors counted it as two burglaries (which are categorically “crimes of violence”) not one. Another guy sold drugs for a week nine years before, and did a year of state time. But he pled guilty to three counts, selling a dime bag each day for three days in a row. The court called that three serious drug offenses, not one, and he got 15 years.

But the ACCA and “career offender” Guidelines have been mangled by defendants, too. A “crime of violence” has to be defined, and – as we have explained before – that’s not always easy. But surprisingly enough, it’s not always simple to figure out what a “serious drug offense,” is, either. The statute says it’s either (1)  an offense under the federal Controlled Substances Act with a max sentence of 10 years or more; or (2) an offense under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” with a max of 10 years or more. It looks straightforward, but it is not.

drugdealer180228After the Supreme Court’s 2016 Mathis decision, defendants are not just looking for crimes of violence that are too broad for the ACCA and Guidelines career offender enhancement. The statute defines a prior state offense as involving “manufacturing, distributing, or possessing with intent to manufacture or distribute.” But state statutes sometimes include “transporting” or “offering to sell” in their definitions, and those are broader than the ACCA/Guidelines definition. Thus, defendants seek to invalidate state drug convictions for being too broad.

Corey Jones tried that, arguing that his Illinois drug conviction did not count toward Guidelines career offender status, because it applied not just to controlled substances and counterfeit drugs, but to controlled substance analogs, too. He argued the CSA only applied to two of those – controlled substances and counterfeit drugs – making his prior under 720 Ill.Stat. 570/401 too broad. Two outta three, he argued, was bad.

Last week, the 8th Circuit turned him down, holding that two outta three ain’t bad. While 21 USC 841 (the defining offense statute in the CSA) does not mention analogs, Title 21 USC 802(32)(a)  defines analog (albeit spelled “analogue”) and Sec. 813 provides “that a controlled substance analogue shall, to the extent intended for human consumption, be treated, for the purposes of any Federal law as a controlled substance in schedule I… Differences in spelling notwithstanding, we find no material distinction between the term “analog” as used in 720 Ill.Stat. 570/401 and the federal term “analogue” as used in Sec. 813. We therefore conclude Jones’s two prior Illinois convictions categorically qualify” for career offender status.

 United States v. Jones, Case No. 17-1710 (8th Cir. Feb. 21, 2018)

– Thomas L. Root

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