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Supremes to Hear Another ACCA Case – Update for November 20, 2019

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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 GRANT CERTIORARI TO ANOTHER ARMED CAREER CRIMINAL CASE

In the last few years, it’s been a great time to be an armed career criminal. Not really (we don’t recommend doing it at any time), but the Armed Career Criminal Act has been the focus of the Court’s attention both directly (Johnson v. United States, Mathis v. United States and Rehaif v. United States) as well as indirectly (United States v. Beckles, Sessions v. Dimaya and United States v. Davis).

Robber160229A quick primer: 18 USC 922(g) provides that certain classes of people – convicted felons, drug abusers, fugitives, illegal aliens – are prohibited from possessing guns and ammo (the actual items, not just the magazine). If you are convicted of a § 922(g) offense, you face a maximum of 10 years in prison. But, if you have three prior convictions for drug felonies, crimes of violence or a combination of the two, you fall under the Armed Career Criminal Act (18 USC § 924(e)), and your penalty starts at 15 years and goes all the way to life in prison.

Ever since the 2016 Supreme Court decision in Voisine v. United States, most appellate courts have been holding that a crime committed with a mens rea of recklessness was enough to establish the use, attempted use, or threatened use of physical force. Junior Walton discovered 13 bullets in a rooming house that he managed and removed them for safekeeping. He was convicted of possessing ammunition as a felon, in violation of 18 USC 922(g)(1) and sentenced under the Armed Career Criminal Act to 15 years. The application of the ACCA turned on whether one of his past convictions, which could be committed with a mens rea of recklessness, qualified as a violent felony under the ACCA’s force clause.

The district court said it did not. The 6th Circuit, with several dissenting judges, said it did in an en banc proceeding. Last week, the Supreme Court granted cert to Junior on the question of whether a criminal offense that can be committed with a mens rea of recklessness can qualify as a “violent felony” under the ACCA.

The case, which will be decided by the end of June 2020, could further limit the kinds of prior convictions that will support an ACCA sentence. Just in time, too: last week Attorney General William Barr announced a new DOJ initiative, Project Guardian, intended to “increase scrutiny of people convicted of violent felonies or domestic violence, potentially reducing their access to firearms.”

Walker v United States, Case No. 19-373 (cert. granted Nov. 15)

New York Times, Justice Dept. Unveils Gun Plan, Sidestepping a Preoccupied Washington (Nov. 13)

– Thomas L. Root

October Term 2018 Ends With A Whimper – Update for July 1, 2019

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THE SUPREME COURT’S OUT FOR SUMMER… BUT NOT FOREVER

scotus170627The Supreme Court stumbled across the finish line of its current session (called October Term 2018, because that’s when it began) last Friday, ending with a couple of fumbles and a punt. There will be nothing more from the nine Justices – except for the occasional action on a stay of execution – until the “long conference” in the last week of September. 

Then, come Monday, October 7, 2019… the Court will be back at it with October Term 2019.

The last week started out to be a significant one for federal criminal law. Last Monday, the Court handed down the Davis decision, with United States v. Haymond following two days later. For those who follow the Court for criminal law, that just left Mitchell v. Wisconsin and Carpenter v. Murphy for the Court’s final day on Thursday. Mitchell was a 4th Amendment case, asking whether blood can be drawn from an unconscious motorist without a warrant (yes, it can). Carpenter is a big deal for Oklahoma, Native Americans and the many states with reservations inside their borders, because the 10th Circuit held that most of eastern Oklahoma – including the City of Tulsa – still belonged to the Cherokee Nation. It also matters to anyone with a prior Oklahoma state conviction from that area, because all of those convictions might be invalid.

On Thursday, the Court issued big decisions on the census form citizenship question and how Congressional districts are drawn, in each case sort of kicking the can down the road. So it was no surprise when the Chief Justice announced that Carpenter will not be decided this year, but instead will get reargued in the fall.

domino190422But remember how Davis was called Johnson’s “last domino?” Well, it is not. On Friday, the Court issued its final order list of the Term, granting review to Shular v. United States, another case raising an important issue in the application of the Armed Career Criminal Act, this one on the drug trafficking side. For an ACCA conviction, you have to have three prior convictions that are crimes of violence or drug cases. In Shular, the 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, the approach just approved in Davis. There is little doubt that the holding will apply to drug crimes underlying 18 U.S.C. § 924(c) convictions – mandatory consecutive sentences starting at five years for using a gun in a drug offense or crime of violence – as well.

Also, in Kisor v. Willkie, a case that asks whether a court must defer to an agency interpretation of its own ambiguous regulation, the Court last Thursday declined to overrule a longstanding line of cases instructing courts to defer to an agency’s interpretation of its own regulation, but at the same time, he suggested that the doctrine does not apply in every case where an agency is interpreting its own rules. The tepid ruling leaves the deference doctrine a muddled mess the Court will almost certainly have to address again.

United States v. Davis, Case No. 18-431 (decided June 24, 2019)

United States v. Haymond, Case No. 17-1672 (decided June 26, 2019)

Carpenter v. MurphyCase No., Case No. 17-1107 (to be reargued in Fall 2019)

Kisor v.  Willkie, Case No. 18-15 (decided June 27, 2019)

Shular v. United States, Case No. 18-6662 (cert. granted June 28, 2019)

– Thomas L. Root

SCOTUS Remands Haymond With Muddled Opinion – LISA Update for June 27, 2019

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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 BADLY SPLIT ON SUPERVISED RELEASE REVOCATION

The Supreme Court today fractured badly on whether a supervised release revocation requires a jury finding beyond a reasonable doubt.

The issue was an extreme one: Under 18 USC § 3583(k), a supervised release violation involving certain statutes prohibiting child sex abuse or pornography requires a mandatory five-year additional term. The Tenth Circuit had declared the provision unconstitutional, raising the question whether ANY supervised release violation that included a prison term could be found unless a jury did so beyond a reasonable doubt.

scotussplit190627Yesterday, four justices found that supervised release violations that led to prison terms had to be found by a jury beyond a reasonable doubt. Justice Neil Gorsuch wrote, “The lesson for this case is clear: Based solely on the facts reflected in the jury’s verdict, Mr. Haymond faced a lawful prison term of between zero and 10 years. But just like the facts the judge found at the defendant’s sentencing hearing in Alleyne, the facts the judge found here increased “the legally prescribed range of allowable sentences” in violation of the Fifth and Sixth Amendments.”

However, four Justices are not a majority. Justice Breyer, in a concurring opinion, agreed that the particular provision at issue, 18 USC § 3583(k), is unconstitutional. But because the role of the judge in a typical supervised-release proceeding is consistent with traditional parole and because Congress clearly did not intend the supervised release system to differ from parole in this respect, he did not agree with the other four that the Apprendi line of cases applied in the supervised-release context.

Four other justices dissented sharply.

Under precedent, § 3583(k) is declared unconstitutional, but Justice Breyer’s narrower decision controls. Thus, for now, traditional supervised release violations remain free of a reasonable-doubt Apprendi v. New Jersey requirement.

A final opinion day for the Supreme Court’s year is set for today. We expect the decision in Carpenter v. Murphy at that time.

United States v. Haymond, Case No. 17–1672 (June 26, 2019)

– Thomas L. Root

Davis Lives! 924(c)(3)(B) Residual Clause Held to be Unconstitutionally Vague – Update for June 25, 2019

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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 LAST JOHNSON DOMINO FALLS

By a 5-4 vote, the Supreme Court yesterday upheld the categorical approach to judging whether offenses were crimes of violence, ruling that 18 USC § 924(c)(3)(B) is unconstitutionally vague.

Justice Neil Gorsuch wrote in the majority opinion that “[i]n our constitutional order, a vague law is no law at all.”

vagueness160110The vagueness doctrine rests on the twin constitutional pillars of due process and separation of powers. Having applied the doctrine in two cases involving statutes that “bear more than a passing resemblance to § 924(c)(3)(B)’s residual clause” – those being Johnson v. United States (Armed Career Criminal Act residual clause unconstitutional) and Sessions v. Dimaya (18 USC § 16(b) residual clause unconstitutional) – the Court completed its frolic through the residual clauses in the criminal code.

Courts use the “categorical approach” to determine whether an offense qualified as a violent felony or crime of violence. Judges had to disregard how the defendant actually committed the offense and instead imagine the degree of risk that would attend the idealized “‘ordinary case’ ” of the offense.

The lower courts have long held § 924(c)(3)(B) to require the same categorical approach. After the 11th Circuit’s decision in Ovalles, the government advanced the argument everywhere that for § 924(c)(3)(B), courts should abandon the traditional categorical approach and use instead a case-specific approach that would look at the defendant’s actual conduct in the predicate crime.

The Supreme Court rejected that, holding that while the case-specific approach would avoid the vagueness problems that doomed the statutes in Johnson and Dimaya and would not yield to the same practical and Sixth Amendment complications that a case-specific approach under the ACCA and § 16(b) would, “this approach finds no support in § 924(c)’s text, context, and history.”

hathanded190625The government campaign came to a head in Davis, a 5th Circuit case in which the appellate court said that conspiracy to commit a violent crime was not a crime of violence, because it depended on the § 924(c)(3)(B) residual clause. The Dept. of Justice felt confident enough to roll the dice on certiorari. Yesterday, the DOJ had its hat handed to it.

Who does this benefit? Principally, it benefits anyone who received a § 924(c) enhanced sentence for an underlying conspiracy charge. Beyond that, it helps anyone else whose “crime of violence” depended on the discredited § 924(c)(3)(B) residual clause.

The Court did not rule that Davis is retroactive for 28 USC § 2255  post-conviction collateral attack purposes, because that question was not before it. SCOTUS never rules on retroactivity in the same opinion that holds a statute unconstitutional. There is little doubt that, if Johnson was retroactive because of Welch, Davis will be held to be retro as well.

United States v. Davis, Case No. 18-431 (Supreme Court, June 24, 2019)

ARE 59(e) MOTIONS ‘SECOND OR SUCCESSIVE’ 2255s?

A number of lower courts have ruled that an unsuccessful § 2255 movant who files a motion to alter the judgment under Fed.R.Civ.P. 59(e) may be filing a second-or-successive § 2255 motion requiring prior approval.

HobsonsChoiceThis leaves § 2255 movants with a Hobson’s choice. Filing a 59(e) stays the time for filing a notice of appeal. But if the court sits on the 59(e) past the notice of appeal deadline, and then dismisses it as second-or-successive, the § 2255 movant has missed the notice of appeal deadline with the Court of Appeals. If the movant files a notice of appeal to preserve his or her rights, that nullifies the 59(e).

Right now, the only logical election is to ignore Rule 59(e) motions altogether.

Yesterday, the Court granted review in yet another “Davis” case, asking whether the 59(e) motion should be considered second or successive such that it requires the grant of permission under 28 USC § 2244. We’ll have an answer next year.

Banister v. Davis, Case No. 18-6943 (certiorari granted, June 24, 2019)

– Thomas L. Root

SCOTUS Rules 922(g) Requires “Knowledge” – Update for June 24, 2019

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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.

KNOWNOTHING-ISM

In a decision that could be seismic for people convicted of being a felon in possession of a firearm, the Supreme Court last Friday ruled that it’s not enough to know that thing stuck in your pants is a gun. You have to know that you are part of a group the law says should not possess a gun. And, for that matter, you have to know you possess a firearm or ammo.

carriefgun170807Hamid Rehaif was in the country on a student visa that required him to be enrolled in college. He dropped out of school, but stuck around Florida to soak up the sun and fun. When ICE finally caught up to him, agents found him in possession of a half box of ammunition. Hamid had not really picked up on the “right to remain silent” thing, so he readily admitted going to a gun range. He was prosecuted for being illegally in possession of a firearm and ammo.

Under 18 U.S.C. 922(g), it is unlawful for a convicted felon to possess a firearm or ammunition. But that’s only subsection (g)(1). There are eight other subsections as well, categories that include fugitives, people under indictment, people convicted of a misdemeanor crime of domestic violence, people who have been found by courts to be mentally incompetent, illegal aliens, stalkers… there’s a long list.

The government has always gotten away with proving that a defendant had a gun or ammo, and that he or she was a felon or something else on the list. The defendant had to know that that thing he had stuffed in his waistband was a gun. Beyond that, there was no knowledge requirement. A defendant who claimed not to know that he or she was in a prohibited class was just plain out of luck. What the defendant knew or did not know simply was irrelevant. That’s what happened to Hamid. He was fine busting a few caps at the gun range as long as he was in school (and thus compliant with the terms of his student visa). But as soon as he dropped out, his visa automatically expired, and his antics at the gun range became illegal. The district court, and the 11th Circuit, agreed (as did every circuit court in America) that Hamid’s awareness that he should limit his firearms training to Nerf weapons.

rangeThat has now changed. The Supreme Court ruled that in a prosecution under 18 USC 922(g) and 924(a)(2) (they go together), the Government must prove both that the defendant knew he or she possessed a firearm and that the defendant knew he or she knew he belonged to the relevant category of persons barred from possessing a firearm.

Whether a criminal statute requires the government to prove that the defendant acted knowingly, the Court said, is a question of congressional intent. There is a longstanding presumption that Congress intends to require a defendant to possess a culpable mental state regarding “each of the statutory elements that criminalize otherwise innocent conduct.” This is normally characterized as a “presumption in favor of scienter.”

In 922(g) and 924(a)(2), Justice Breyer wrote for the 7-2 decision, the statutory text supports the presumption. It specifies that a defendant commits a crime if he or she “knowingly” violates § 922(g), which makes possession of a firearm unlawful when the following elements are satisfied: (1) a status element; (2) a possession element (to “possess”); (3) a jurisdictional element (“in or affecting commerce”); and (4) a firearm element (a “firearm or ammunition”). Aside from the jurisdictional element, the Court said, § 922(g)’s text “simply lists the elements that make a defendant’s behavior criminal. The term ‘knowingly’ is normally read ‘as applying to all the subsequently listed elements of the crime.’ And the ‘knowingly’ requirement clearly applies to 922(g)’s possession element, which follows the status element in the statutory text. There is no basis for interpreting ‘knowingly’ as applying to the second 922(g) element but not the first.

innocent161024What does this mean for the many felons-in-possession now in the system? It could be Bailey v. United States all over again, as people head back to court on 28 U.S.C. § 2241 petitions (where those are allowed) arguing that under the new statutory interpretation, they are actually innocent.

Justice Alito wrote a detailed and blistering dissent. He warned that the decision’s

practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S.C. § 922(g). It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S.C. § 2255, and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating § 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies… This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of ‘fixing’.

Watch that space. This could be very interesting.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, June 21, 2019)

– Thomas L. Root

Gundy Brings Forth a Mouse – Update for June 21, 2019

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GUNDY – NO BANG BUT A WHIMPER

As soon as the Supreme Court announced yesterday that it had affirmed the 2nd Circuit by an 8-1 vote, I knew that the Justices had massaged the case – which was argued the first week of October 2018 – until they reduced the holding to something narrow enough that they could almost all agree.

mouse170706Petitioner Herman Gundy, a convicted sex offender, was convicted of failing to register under the Sex Offenders Registration and Notification Act. He had been convicted of the sex offense before SORNA passed, but Congress included in the bill a directive to the Attorney General to “specify the applicability” of SORNA’s registration requirements and “to prescribe rules for [their] registration.”

Under that delegated authority, the Attorney General issued a rule specifying that SORNA’s registration requirements apply in full to pre-Act offenders. This made Herman’s failure to register a crime. Both the District Court and the Second Circuit rejected Herman’s claim that Congress unconstitutionally delegated legislative power when it authorized the Attorney General to essentially determine what act or non-act constituted a crime.

Gundy was considered to be a big case, because the laxity with which Congress has delegated authority to the Executive Branch to make crimes cuts a broad swath across the law. The DEA has the power to declare an analogue drug to be a controlled substance. The ATF has the power to declare a little bent piece of metal a “machinegun” because it can be inserted into an AR-15 to make it fire on full auto. In fact, there are over 1,500 regulations enacted by Executive Branch agencies that carry criminal consequences.

Many observers thought Gundy could be a watershed, a moment when the Court would finally say “enough” to the willy-nilly delegation of power without limits. The fact that SCOTUS has taken so long to decide an early-term case suggested that there was a lot of dissention among the Justices, and that the decision, when it finally came, would be a whopper.

No such luck. Instead the Justices parsed the history of SORNA, and found that Congress had always meant for SORNA’s registration requirements to apply to pre-Act offenders, based on the Act’s statutory purpose, its definition of sex offender, and its history. But Congress was afraid that registering so many people right away would not be feasible. SORNA, the Court said, created a “practical problem[ ]” because it would require “newly registering or reregistering a large number of pre-Act offenders.”

Congress therefore asked the Attorney General, who was already charged with responsibility for SORNA implementation, to examine the issues and to apply the new registration requirements accordingly.” On that understanding, the Court said, the “Attorney General’s role… was important but limited: It was to apply SORNA to pre-Act offenders as soon as he thought it feasible to do so.”

There, the Court said. The AG only did what Congress clearly wanted done. Problem solved.

can190620What really happened is the Court was able to find justification in this instance for the AG doing what he did, rather than addressing the broader question. (Of course, lurking beneath the surface was the unspoken fear that declaring anything that pummels sex offenders to be unconstitutional would unleash a maelstrom of media and social criticism of the Court). Whatever the reason, the Court’s punt leaves the broader delegation doctrine question, which is as important as it is dry, for another day.

Gundy v. United States, Case No. 17-6086 (Supreme Court, June 20, 2019)

CLOCKWATCHERS

Another SCOTUS decision yesterday was a sleeper, one I had paid scant attention to. But it is a useful holding nonetheless.

A lot of people who were unlawfully treated before and during their criminal cases, and may have good legal issues against the people responsible, end up getting shut out by the statute of limitations. That happened to Ed McDonough.

Ed was an election commissioner in Troy, New York. After questions arose, Youel Smith was specially appointed to prosecute a case of forged absentee ballots in that election. Ed became his primary target.

clockwatcher190620Ed alleged that Youel fabricated evidence against him and used it to secure a grand jury indictment. Youel tried the case, using the allegedly false evidence, Ed got a mistrial the first time, but an outright acquittal the second.

Ed sued Youel under 42 U.S.C. § 1983, asserting a claim for fabrication of evidence. The district court dismissed the claim as untimely, and the 2nd Circuit affirmed. The courts both held that the 3-year limitations period began to run when Ed learned that the evidence was false, which undisputedly occurred by the time Ed was arrested and stood trial.

The Supremes reversed, ruling for Ed. The fabrication claim was a lot like a malicious prosecution claim, and such a claim does not arise until the defendant is acquitted. To follow the lower courts’ holding would create practical problems in places where prosecutions regularly last nearly as long as — or even longer than—the limitations period. Criminal defendants, SCOTUS said, “could face the untenable choice of letting their claims expire or filing a civil suit against the very person who is in the midst of prosecuting them. The parallel civil litigation that would result if plaintiffs chose the second option would run counter to core principles of federalism, comity, consistency, and judicial economy.”

McDonough v. Smith, Case No. 18–485 (Supreme Court, June 20, 2019)

– Thomas L. Root

Supreme Court Upholds Right of States and Feds to Separately Try Defendant for Same Crime – Update for June 18, 2019

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“SEPARATE SOVEREIGNS” MAY BOTH TRY DEFENDANT AS FELON-IN-POSSESSION FOR SAME INCIDENT

The Supreme Court yesterday refused to abandon the dual-sovereignty doctrine, which permits a state to try a defendant for an offense, and then allow the federal government to try him or her for the same conduct.

nice190618Police caught Terence Gamble with a loaded handgun. He pled guilty to an Alabama felon-in-possession-of-a-firearm statute. He was then indicted in federal court for the same incident. Terence moved to dismiss, arguing that the federal indictment was for the same offense as the one at issue in his state conviction, thus exposing him to double jeopardy under the Fifth Amendment. The District Court denied this motion, invoking the dual-sovereignty doctrine, according to which two offenses “are not the ‘same offence’ ” for double jeopardy purposes if “prosecuted by different sovereigns,” The 11th Circuit affirmed.

Yesterday, the Supreme Court upheld the “dual sovereignty” doctrine in a 7-2 opinion. In a verbal pretzel of a justification, the Court held that the Double Jeopardy Clause protects defendants from being “twice put in jeopardy” “for the same offence.” But as it was originally understood, the Court said, an “offence” is defined by a law, and each law is defined by a sovereign. Thus, where there are two sovereigns, there are two laws and, therefore, two “offences.”

The Court said Terence was trying to show from the Double Jeopardy Clause’s drafting history that Congress must have intended to bar successive prosecutions regardless of what government brought the charge. “But even if conjectures about subjective goals” of the framers of the Constitution “were allowed to inform this Court’s reading of the text, the Government’s contrary arguments on that score would prevail.”

Justice Gorsuch (a Trump appointee) and Justice Ginsberg (a Clinton appointee) dissented. Justice Ginsberg called the difference in sovereigns a “metaphysical sublety” on which a defendant’s freedom should not be frittered away. Justice Gorsuch, who for his conservative philosophy seems to be a champion of criminal justice, started his long dissent like this:

A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.

Gamble v United States, Case No. 17-646 (June 17, 2019)

– Thomas L. Root

Supreme Court Rules “Remaining-in” Burglary is Generic Burglary – Update for June 11, 2019

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SUPREME COURT HOLDS THAT ‘REMAINING IN” BURGLARY IS GENERIC BURGLARY UNDER ACCA

Jamar Quarles was convicted of being a felon in possession of a gun under 18 USC § 922(g)(1). Because he had three prior convictions for crimes of violence, he was sentenced to a mandatory minimum sentence of 15 years under 18 USC § 924(e), the Armed Career Criminal Act.

burglar160103In order to be a crime of violence, you may recall, 18 USC 924(e) requires that the conviction either be (1) for burglary, arson, use of explosives or extortion (the “enumerated crimes” clause); or (2) a crime involving an actual or threatened use of physical force against another person (the “elements” clause).

Jamar appealed his ACCA conviction, arguing that one of the prior offenses, Michigan third-degree home invasion, was not generic burglary, because its terms were broader than mere generic burglary. Thus, he maintained, the home invasion did not fit the definition of “crime of violence” under the enumerated crimes clause.

Some 29 years ago, the Supreme Court in Taylor v. United States defined generic burglary under §924(e) to mean “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” The Michigan third-degree home invasion statute applied when a person “breaks and enters a dwelling or enters a dwelling without permission and, at any time while he or she is entering, present in, or exiting the dwelling, commits a misdemeanor.”

Jamar argued that this provision was too broad, because it encompassed situations where the defendant forms the intent to commit a crime at any time while unlawfully remaining in a dwelling. He contended that generic remaining-in burglary under the ACCA occurs only when the defendant has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure.

The District Court rejected that argument, and the Sixth Circuit affirmed. Yesterday, the Supreme Court agreed with the lower courts.

remaining190611The Supreme Court said that “remaining in” refers only to the burglary being a continuous event, that begins when one enters the building unlawfully and does not end until he or she exits. The common understanding of “remaining in” as a continuous event, the Court said, “means that burglary occurs for purposes of §924(e) if the defendant forms the intent to commit a crime at any time during the continuous event of unlawfully remaining in a building or structure.” To put it in conventional criminal law terms, the Court explained, “because the actus reus [the act of burglary] is a continuous event, the mens rea [intent to commit a crime while there] matches the actus reus so long as the burglar forms the intent to commit a crime at any time while unlawfully present in the building or structure.”

The Court made it clear what concerns partly drove the train. It observed that “the important point is that all of the state appellate courts that had definitively addressed this issue as of 1986 [the year the ACCA was adopted] had interpreted remaining-in burglary to occur when the defendant forms the intent to commit a crime at any time while unlawfully present in the building or structure… To interpret remaining-in burglary narrowly… would thwart the stated goals of the Armed Career Criminal Act. After all, most burglaries involve unlawful entry, not unlawful remaining in. Yet if we were to narrowly interpret the remaining-in category of generic burglary so as to require that the defendant have the intent to commit a crime at the exact moment he or she first unlawfully remains… many States’ burglary statutes would presumably be eliminated as predicate offenses under §924(e). That result not only would defy common sense, but also would defeat Congress’ stated objective of imposing enhanced punishment on armed career criminals who have three prior convictions for burglary or other violent felonies.”

Quarles v United States, Case No. 17-778 (Supreme Court, June 10, 2019)

– Thomas L. Root

Ask Not For Whom the Supervised Release Term Tolls – Update for June 4, 2019

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SUPREME COURT HOLDS THAT PRETRIAL DETENTION LATER CREDITED TO NEW SENTENCE TOLLS SUPERVISED RELEASE

Jason Mont was on five years’ supervised release after doing time for a federal drug offense, scheduled to end on March 6, 2017. With nine months to go, Ohio arrested him for a marijuana trafficking conspiracy and locked him in the beautiful, high-rise Mahoning County jail.

supervisedrelease180713Four months later, Jason pled guilty to the pot charge in state court, and then admitted in federal court that he had violated his supervised-release conditions by virtue of the new state convictions. The federal district court finally got around to issuing a supervised release violations warrant on March 30, 2017, four months later, right after Ohio sentenced him to six years in prison for the pot, with credit for the 10 months he had spent in Mahoning County jail.

When Jason finally had his supervised release revocation hearing in June 2017, he challenged the district court’s jurisdiction on the ground that his supervised release had expired on March 6. he argued that the expiration of his supervised release deprived the district court of jurisdiction to issue the warrant on March 30. The court rejected the argument, and ordered him to serve 42 months’ federal imprisonment, to run consecutive to his state sentence.

The Sixth Circuit held that Jason’s supervised-release period was tolled under 18 USC § 3624(e), which provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a . . . crime unless the imprisonment is for a period of less than 30 consecutive days.” Because the roughly 10 months of pretrial custody was held to be “in connection with [Jason’s] conviction,” the appellate court said, his supervised release was tolled in June 2016, and had not yet resumed running as of the time the warrant issued. Thus, there was ample time left on the supervised release term when the warrant issued.

Yesterday, the Supreme Court narrowly agreed. In a 5-4 decision, the Court ruled that pretrial detention later credited as time served for a new conviction is “imprison[ment] in connection with a conviction” and thus tolls the supervised-release term under 18 USC § 3624(e), even if the court must make the tolling calculation after learning whether the time will be credited.

The Court said the text of § 3624(e) compels its conclusion. First, dictionary definition of the term “imprison,” both now and at the time Congress created supervised release, encompasses pretrial detention. Second, the phrase “in connection with a conviction” encompasses a period of pretrial detention for which a defendant receives credit against the sentence ultimately imposed. Congress, like most states, instructs courts calculating a term of imprisonment to credit pretrial detention as time served on a subsequent conviction.

supervisedrevoked181106The statute undeniably requires courts to retrospectively calculate whether a period of pretrial detention should toll a period of supervised release, as evidenced by its inclusion of the 30-day minimum jail stay needed to trigger tolling. The statute does not require courts to make a tolling determination as soon as a defendant is arrested on new charges or to continually reassess the tolling calculation throughout the pretrial-detention period. Inasmuch as the statute does not count jail for less than 30 days as tolling supervised release, it clearly anticipates that the tolling decision need be made only once at the end of the period in question.

The statutory context also supports the Court’s interpretation. The Supreme Court said it “would be an exceedingly odd construction of the statute to give a defendant the windfall of satisfying a new sentence of imprisonment and an old sentence of supervised release with the same period of pretrial detention. Supervised release is a form of punishment prescribed along with a term of imprisonment as part of the same sentence. And Congress denies defendants credit for time served if the detention time has already ‘been credited against another sentence’.”

Mont v. United States, Case No. 17-8995 (Supreme Court, June 3, 2019)

– Thomas L. Root

Trump Supreme Court Appointee Gorsuch May Not Be All ‘Law and Order’ – Update for June 3, 2019

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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.

Last week’s posts were light to the point of being non-existent. I was off watching my oldest graduate from Harvard Business School (after a 13-year stint in Army aviation, most of which was in special operations). Yeah, I’m pretty proud watching my kids accomplish things I never could have done…

But, now, it’s back to work.

JUSTICE GORSUCH HINTS HE MAY NOT BE A “LOCK” VOTE FOR GOVERNMENT

This is the time of year I am usually up to my armpits in Supreme Court decisions. But with only four weeks left (and only four opinion days scheduled), SCOTUS still has 31 cases to decide, including a passel of important criminal decisions. Maybe we’ll see something today…

Meanwhile, the high court’s decision in Nieves v. Bartlett last week (a narrow decision holding that if a cop has probable cause to arrest you, you cannot make a 1st Amendment retaliatory arrest claim) was interesting primarily for a notable voting lineup and multiple separate opinions. Nieves especially provides more evidence that Justice Gorsuch is a sharp critic of the criminal justice system.

policestate190603In his concurring opinion, Justice Gorsuch wrote:

History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively. In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our 1st Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age.

Ohio State University law professor Doug Berman said in his Sentencing Law and Policy Blog that “the sparring in Nieves now has me even more excited (if that was possible) to see what the Court does in the biggest criminal cases I am watching, especially Gundy and Haymond.”

Nieves v Bartlett, Case No. 17-1174 (May 28, 2019)

Sentencing Law and Policy, Notable comments in notable SCOTUS opinions addressing First Amendment retaliatory arrest claims (May 28, 2019)

– Thomas L. Root