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

Supreme Court 922(g) Case May Hold Unintended Consequence for Felons with Guns – Update for April 29, 2019

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SLEEPER

An oral argument last Tuesday in Rehaif v. United States took a surprising turn, and could make a Supreme Court decision in the case the “sleeper” of the Court’s 2018-2019 term.

gunknot181009Refresher first: Federal law prohibits a long list of people from possessing guns or ammunition. The statute, 18 U.S.C. § 922(g), bans ownership by people charged with felonies, people convicted of felonies, people who have been certified as crazy, people who beat their spouses, people subject to protection orders, people who do drugs, people who are here illegally, and so on and so on.

The statute (922(g)) is colloquially known as the “felon-in-possession” statute, although its reach is much broader than that. Read the statute to figure out where you fit.

A quirk of the felon-in-possession statute is that it provides no punishment. Rather, punishment is meted out by another statute, 18 U.S.C. § 924(a)(2), which specifies a 10-year sentence for people who “knowingly” violate 922(g).

But “knowingly” what? Do you have to know it is a gun? Or a round of ammo? Do you have to know you are a felon or a drug abuser or here illegally? Do you have to know you are possessing it? Up to now, the statute was interpreted by the courts as requiring only that you know that it’s a firearm or ammunition.

Which brings us to the unluckiest hedonist in America, Hamid Rehaif. Hammy came to the US to attend college. Under immigration law, he retained his student-visa status only as long as he remained enrolled as a full-time student. But when he got here, he discovered that the non-classroom parts of college were more fun, the bars, the tailgating, the frat parties, all of the stuff that has conspired to place less of a workload on college students than on eighth graders.

Naturally, Hammy flunked out. But he had so much fun doing it that he couldn’t give it up. Instead of returning to his mother country with his academic tail between his legs, Hammy stayed in America. In Florida, actually, and who could blame him?

florida190429But events conspired against him. One day he went to a shooting range, rented a Glock .40 cal. pistol (is this a great country or what?), and happily blasted away at targets for an hour or so.  A few weeks later, some solid citizen reported Hamid, because she had seen him skulking around an apartment building (he lived there, but then, he is Middle Eastern, so of course he must be a terrorist). The FBI came by to talk to him, and Hammy – who had been at a party instead of an American government class, and thus did not know about the “right to remain silent” part of the Constitution – mentioned at one point in the interview that he had been shooting a few weeks before.

Like I used to tell my clients, remaining silent is not just a  right – it’s a whopping’ good idea. Hamid was charged as an unlawful alien in possession of a firearm under 18 U.S.C. § 922(g)(5). Of course, he was convicted, despite the fact Hammy argued he did not know he was in the country illegally. The trial court said that did not matter. The only “knowledge” provision of 922(g) that mattered was that he knew he possessed a gun, even just for an hour.

knowledge190429The question of whether “knowingly” meant a defendant had to be aware of his or her status (felon, spouse-beater, drug-abuser, illegal-alien, whatever) in order to violate 922(g). At oral argument last week, the Supreme Court justices quickly saw the slippery slope: if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily mean it will have to prove that a felon with a firearm knows he or she is a felon.

If Hamid’s conviction is reversed, the practical consequences could be huge. Only Justice Alito seemed to accept the current view that a defendant need not know his or her status to violate the statute.

Justice Ginsburg wondered what would happen if the Court ruled that status under 922(g) requires knowledge: “How many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said… I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.” The government’s lawyer responded that “under Bousley v. United States, the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status.”

It is tricky to predict a Supreme Court case’s outcome from oral argument, but the headcount strongly suggests Hamid will win. If the Supremes’ decision holds that knowledge of felon (or illegal immigrant) status is an element of a 922(g) offense, a flood of actual-innocence 28 U.S.C. § 2241 habeas corpus petitions is sure to follow. That would make Rehaif the “sleeper” decision of the year.

Rehaif v. United States, Case No. 17-9560 (Supreme Court, decision by June 30, 2019)

SCOTUSBlog.com, Argument analysis: Court leaning toward requiring the government to prove that a felon in possession knew he was a felon (Apr. 24)

– Thomas L. Root

Unintended Consequences – Does First Step Act Open Up 8th Amendment Argument? – Update for February 18, 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.

DOES FIRST STEP OPEN WINDOW FOR 8TH AMENDMENT CLAIM ON HARSH GUN SENTENCES?

Ohio State University law professor Doug Berman asked this interesting question in a post on his Sentencing Law and Policy blog last week.

Prof. Berman noted that First Step Act Sec. 403, “described as a ‘clarification of Section 924(c),’ eliminates the required “stacking” of 25-year mandatory minimums for multiple 924(c) counts at the same time… Sadly, Congress did not make Section 403 of the First Step Act retroactive, and thus defendants previously subject to these extreme stacked sentences will get no direct relief from the new Act.”

Sentencestack170404In 2010, Wendell Rivera–Ruperto was paid by undercover FBI informants to serve as “armed security” at six fake drug deals, and received a 162-year sentence, of which 130 years were for his six stacked 924(c) convictions. In a 1st Circuit decision last year, Wendell was denied rehearing en banc despite one judge’s complaint that courts “have no choice but to approve mandatory ‘forever’ sentences… so long as they can hypothesize a rational reason for the legislature to have thought that the underlying criminal conduct was [so] serious…” The dissenting judge hoped for Supreme Court review.

SCOTUS has incorporated a proportionality analysis into the cruel and unusual punishment analysis required in capital cases. In Harmelin v. Michigan, the defendant asked the Court to extend the reach of that analysis to noncapital cases such as his life sentence for 650 grams of cocaine. Five Justices agreed that Harmelin’s sentence was not unconstitutionally cruel and unusual, but six Justices agreed that the Cruel and Unusual Punishment Clause bore some kind of proportionality analysis. Among those six, three supported a proportionality principle that deferred to legislative judgments, while three others supported a more searching proportionality analysis that would have struck down the mandatory life sentence.

cruel190218This Friday, the Justices will consider whether to review the case. “Notably, and not surprisingly,” Prof. Berman wrote, “the feds now say in opposition to cert that passage of the First Step Act reduces the important of the case: ‘future defendants in petitioner’s position will not be subject to mandatory consecutive sentences of at least 25 years [and the] question presented by his case therefore has diminishing significance’.” But “the fact that the 8th Amendment is supposed to take guidance from an ‘evolving standards of decency’ and be responsive to a ‘national consensus’ against a sentence, I strongly believe the enactment of the First Step Act primarily operates to make Wendell Rivera–Ruperto’s constitutional claim even more substantively potent.”

Justice Kennedy’s retirement last summer creates a window of opportunity for advocates to urge overturning (or cutting back) Harmelin’s 8th Amendment precedent. “Thus,” Berman said, “I am rooting super hard for the Justices to grant cert in Rivera–Ruperto.” Grant of cert in this case, which Berman calls “potentially the biggest non-capital Eighth Amendment case in a generation,” might open other stacking cases to 8th Amendment review.

Sentencing Law and Policy, Doesn’t the FIRST STEP Act add juice to Eighth Amendment challenge to extreme stacked 924(c) sentence in Rivera-Ruperto? (Feb. 10)

Rivera-Ruperto v. United States, Case No. 18-5384 (Supreme Ct.)

– Thomas L. Root

Curtis Johnson Suffers Violence at Hands of Supreme Court – Update for January 15, 2019

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SUPREME COURT RULING ON ROBBERY AS ACCA PRIOR IS BAD NEWS FOR PEOPLE ATTACKING ACCA PRIORS

violence180508Back in 2010, the Supreme Court brought some sense to the classification of crimes as “violent” in Curtis Johnson v. United States, holding that “physical force” means “violent force – that is, force capable of causing physical pain or injury to another person.  Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Curtis Johnson Court concluded that the law did not require the use of “physical force” within the meaning of Armed Career Criminal Act.  

Since that time, Curtis Johnson has led to a number of state crimes that can be accomplished with something less than force capable of causing physical pain or injury to another person have been found not to require the use of force as contemplated by the ACCA.

Then came Denard Stokeling, who once tried to snatch a necklace from the nape of a female victim. The State of Florida convicted him of robbery for that. Some years later, Denard was caught with a handgun. He pled guilty to being a felon-in-possession under 18 USC 922(g). Based on his priors, including the Florida robbery conviction, he was sentenced to a 15-year mandatory minimum under the ACCA.

Denard appealed, arguing that Florida robbery was not a crime of violence under the ACCA, because it did not require force that could cause physical harm. His district court agreed, but the 11th Circuit reversed.

Today, the Supreme Court sided with the 11th Circuit in an opinion that pretty much sounds a death knell for any arguments that any robbery – state or federal – is not a crime of violence. That includes a number of people who are now arguing that Hobbs Act robbery is not a crime of violence for 18 USC 924(c) purposes.

At one time, the ACCA included robbery among the enumerated crimes that were automatically crimes of violence. Congress changed the law to delete “robbery,” but expanded the elements clause of the ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.”

In a decision written by Justice Thomas, the Supreme Court held earlier today that by replacing robbery with a clause that has “force” as its touchstone, Congress retained the same common-law definition that undergirded the definition of robbery in the original ACCA. The widely-accepted definition of robbery at the state level required nothing more than “a degree of force sufficient only to overcome a victim’s resistance.”

candybaby190117The Court said that the understanding of “physical force” in robbery comports with the definition of force in Curtis Johnson. There, the force necessary for misdemeanor battery required only the “slightest offensive touching” to qualify. Robbery, the Court said, requires force necessary to overcome resistance by a victim, and that is inherently “violent” in the sense contemplated by Johnson and “suggest[s] a degree of power that would not be satisfied by the merest touching.” The Supreme Court held that Curtis Johnson did not purport to establish a force threshold so high as to exclude even robbery from the ACCA’s scope.

Therefore, the Court said, robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause. The term “physical force” in the ACCA encompasses the degree of force necessary to commit common-law robbery.

Curiously, the decision was 5-4, with the dissenters, Chief Justice Roberts and Justices Sotomayor, Ginsburg and Kagan, arguing that the decision eviscerated Curtis Johnson. And they have a point. It is difficult to see what would limit Justice Thomas’ holding that any force sufficient to overcome the will of the victim – such as the yanking a purse away from a woman’s shoulder or even taking candy from the fist of a baby – is not sufficient force to fall within Curtis Johnson.

thThere are those who suspect that today’s decision may limit Curtis Johnson to its facts, which in the law is a nice way to say the court has kneecapped a case.

Not content to vastly expand the reach of the ACCA’s “crime of violence” definition, the decision included the ominous dictum that federal criminal statutes should not be construed in ways that would render them inapplicable in many states. This warning could cause significant problems for people seeking to have state statutory crimes declared to be too broad for ACCA or career offender.

Stokeling v. United States, Case No. 17-5554 (Supreme Court, January 15, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Dimaya Redux at the Supreme Court? – Update for January 7, 2019

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SUPREME COURT GRANTS CERTIORARI TO 924(C) CASE

After the Supreme Court decision last spring in Sessions v. Dimaya, a lot of people doing time for using a gun during a crime of violence had hoped to attack their 18 USC 924(c) convictions by arguing the underlying crime was not violent.

gunb160201Section 924(c) outlaws using, carrying, or possessing a firearm in connection with a drug offense or “crime of violence.” “Crime of violence” is defined in subsection (c)(3)(B) to be a crime in which force is used or threatened against the person or property of another (the “elements clause”) or any a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense,” known as the residual clause.

In Johnson v. United States and, later, in Dimaya, the Supreme Court invalidated similar residual clauses as violating due process because of vagueness.

After Dimaya, the courts of appeal entertained a spate of cases arguing that if 18 USC 16(b) (the residual clause found unconstitutional in Dimaya) was invalid, so was the identically-worded clause in § 924(c)(3)(B). Last September, the 5th Circuit became the first appellate court to decide the matter, holding in United States v. Davis that it would use the same “categorical approach” approved by the Supreme Court in Johnson and Dimaya when applying § 924(c)(3)(B) to the underlying offense. Doing so, the Court said, there was no doubt that 924(c)(3)(B) was unconstitutional.

A number of other circuits have differed with the 5th since then. Most recently, the 2nd ruled in United States v. Barrett and the 11th held in Ovalles v. United States that § 924(c)(3)(B) survives Johnson and Dimaya. Those circuits agree that, first, 18 USC 924(c) is a criminal offense that requires a determination of guilt beyond a reasonable doubt of the underlying offense by a jury in the same proceeding. For that reason, the categorical approach – which requires a reviewing court to ‘imagine’ an “idealized ordinary case of the crime” and which would render the 924(c) residual clause unconstitutional – need not be employed. Instead, those circuits used a conduct-based approach, looking at how the defendant actually committed the underlying crime instead of employing some “least violent hypothetical.” See “Circuits Busy Shutting Down 924(C) Dimaya Claims,” Newsletter, Oct. 8, 2018.

scotus161130Naturally, the government prefers the approach favored by every court except the 5th Circuit. Last Friday, the Supreme Court granted the government’s petition for certiorari to challenge the 5th Circuit’s use of the categorical approach in Davis. In that case, the 5th held the defendants’ 924(c) conviction could not stand, because it was based on conspiracy to commit a Hobbs Act robbery. A conspiracy itself does not use force or threat of force, the Circuit reasoned, so it only could be a crime of violence under 924(c)’s residual clause. Because that clause was identical to the crime of violence residual clause declared unconstitutional in Dimaya, the 5th Circuit held conspiracy to commit a crime of violence could not constitutionally support a 924(c) conviction under the residual clause in that statute, either.

It is possible there will be a decision by June, but it is more likely the case will not be argued until the fall.

United States v. Davis, Case No. 18-431 (certiorari granted Jan. 4, 2018)

– Thomas L. Root

Supreme Court Says in Burglary, People Make the Difference – Update for December 11, 2018

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SUPREME COURT BROADENS ACCA BURGLARY IN EARLY LUMP-OF-COAL DECISION

coal181211The Supreme Court yesterday issued an unexpectedly-early decision in United States v. Stitt, delivering a lump of coal to the stockings of people still hoping to to convince a court that their state burglary prior conviction should not count as a “prior” under the Armed Career Criminal Act. In a unanimous decision, the Court held in a Justice Breyer opinion that burglary of a structure or vehicle that has been adapted or is customarily used for overnight accommodation counts as a “generic burglary” in the ACCA’s “enumerated offenses” clause.

First, a review: Under the ACCA, a defendant convicted of being a felon in possession of a firearm under 18 USC 922(g)(1) receives an enhanced sentence. The basic 922(g)(1) conviction carries a zero to ten-year sentence. But if the ACCA applies, the sentence starts at 15 years and goes to a maximum of life.

A defendant qualifies for an ACCA sentence if he or she has three prior convictions for a serious drug offense or a crime of violence. The Stitt opinion concerned the ACCA’s crime-of-violence definition. A crime of violence is either (1) one of four listed crimes, burglary, arson, extortion or use of explosives, or (2) a crime which requires the use of force or threat of force against another. The first clause is known as the “enumerated offense” clause, which the second is called the “elements clause.”

people181211In deciding whether an offense qualifies as one of the enumerated offenses – burglary, extortion, arson or use of explosives – under the “violent felony” definition in the ACCA, the “categorical approach” first adopted in the 1990 decision Taylor v. United States requires courts to evaluate a prior conviction by reference to the elements of the offense instead of the defendant’s actual conduct. A prior state burglary conviction does not qualify as a generic burglary under the ACCA where the elements of the offense are “broader than those of generic burglary,” as explained in Mathis v. United States.

The Supreme Court has defined the elements of a generic burglary as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime. Under that definition, breaking into a car, a boat, an RV or even a mobile home often was not considered a burglary because it was not a “building or other structure.”

Yesterday’s decision changed all of that. In a consolidated case covering two defendants from two separate states, Arkansas and Tennessee, the Supreme Court expanded that previous definition, saying in effect that burglarizing anywhere that is used for overnight lodging falls within the ACCA’s generic burglary definition. The Court said Congress intended that the burglary definition reflect “the generic sense” in which the term ‘burglary’ was used in the criminal codes of most States when the ACCA was passed.

burglary160502At that time, a majority of state burglary statutes covered vehicles adapted or customarily used for lodging. Also, Congress viewed burglary as an inherently dangerous crime that “creates the possibility of a violent confrontation” between the burglar and an occupant. An offender who breaks into a mobile home, an RV, a tent, or another structure or vehicle “adapted or customarily used for lodging creates a similar or greater risk of violent confrontation.”

The Court said it did not matter if the vehicle or structure was only used for lodging part of the time, meaning that conceivably, breaking into new RVs on the dealer’s lot would still count toward an ACCA sentence.

One of the two defendants, Jason Sims complained that Arkansas’ statute remained too broad, because it also covers burglary of “a vehicle… [w]here any person lives.” He said since homeless people sometimes sleep in cars, this means that breaking into any car would fall under the ACCA definition. The Supreme Court said the question of whether the statute would be applied that way needed to be decided by a lower court, and remanded Jason’s case to a lower court to decide the merits of the claim.

United States v. Stitt, Case No. 17-765 (Supreme Court, Dec. 10, 2018)
United States v. Sims, Case No. 17-765 (Supreme Court, Dec. 10, 2018)

– Thomas L. Root

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Supreme Court and the Gimme Gimmes – Update for December 5, 2018

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SUPREME COURT HEARS TWO CONSEQUENTIAL CASES

The Supreme Court heard oral arguments last week on forfeiture and whether someone screwed up in leaving a big chunk of Oklahoma as Indian Country.

gimmee181205Tyson Timbs, an Indiana man who lost his 2012 Land Rover after he pleaded guilty to drug charges. The state argued that it could seize the car because it had been used to transport drugs, but Tyson countered that requiring him to forfeit the $42,000 car – which he had bought with inheritance money – would violate the 8th Amendment’s ban on excessive fines, because the value of the vehicle was nearly four times the maximum fine that could have been imposed. The question before Court in Timbs v. Indiana was simply whether the 8th Amendment’s prohibition of excessive fines applies to the states at all.

The justices appeared to agree that it does. However, there is wide disagreement on what kind of forfeiture is excessive. Federal defendants can hope for the Court to define when forfeiture is too much, but observers think that the justices are likely to say that excessive fines clause applies to the states, but not much more.

Carpenter v. Murphy asked whether a large part of eastern Oklahoma, including where Patrick Murphy is alleged to have committed murder and the entire City of Tulsa, still lies within the borders of a reservation granted to the Creek Nation when it was forcibly relocated to the Oklahoma Territory in the early 19th century. If so, then Oklahoma had no jurisdiction to try Murphy: The Major Crimes Act would give exclusive jurisdiction over that murder to federal authorities, because Murphy is a Native American. The formal procedures that Congress followed when it organized the state of Oklahoma did not explicitly terminate the reservation on which the crime occurred. Because the Supreme Court’s earlier cases have emphasized the importance of statutory language explicitly terminating a reservation, the lower court concluded that the reservation remains in place.

The case is important to a number of federal defendants, whose prior convictions could be wiped out, affecting not only ACCA convictions and 21 USC 851 drug enhancements, but Guidelines criminal histories as well.

indian181205The Court is clearly grappling with the law that plainly makes eastern Oklahoma Indian Country versus the wholesale dislocation that upholding the Tenth Circuit would cause. Yesterday afternoon, the Court took the unusual step of calling for additional briefing on two questions that suggest it is looking for a creative way to decider the case. The first is whether some statute out there may authorize Oklahoma prosecutions “irrespective of the area’s reservation status.” If Oklahoma has such authority, then the criminal-law disruption from recognizing the reservations as still existing would be substantially less.

The second question is whether there “are circumstances” in which land that still qualifies as Indian Country might nevertheless not be  “Indian country as set forth in 18 USC 1151(a).” If so, the Major Crimes Act would not divest Oklahoma of the authority it has exercised through the years to prosecute offenses committed by Native Americans.

SCOTUSBlog.com, Court appears ready to rule that Constitution’s bar on excessive fines applies to the states (Nov. 28, 2018)

SCOTUSBlog.com, Justices dubious about ramifications of broad Indian reservation in Oklahoma (Nov. 27, 2018)

The Atlantic, Who owns Oklahoma? (Nov. 20, 2018)

– Thomas L. Root

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They’re Ba-a-a-a-ck: While Nomination of New Justice Gets Messier, Supreme Court Gets to Work Today – Update for September 24, 2018

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SEE YOU IN SEPTEMBER… SUPREME COURT GETS BACK TO WORK

Although the opening session of the Supreme Court is always the First Monday in October, the eight justices return to work today for the annual “long conference,” at which they consider the mass of petitions for certiorari, requests from unsuccessful lower-court litigants for review of their cases, that build up over the Court’s three-month vacation.

vacationSCOTUS180924The Court hears about 70 cases out of the roughly 7,000 petitions for review it receives each term. It has already granted certiorari to hear 38 cases and will add more to the schedule over the next few months. Thirteen of those cases raise criminal law issues. This is about average: Between 25% to 33% of cases decided by the court every year are criminal-law-related. But a few of this term’s decisions could have huge implications.

First, next month the court will consider what constitute the “generic” elements of the common law “robbery” and “burglary” offenses. The Armed Career Criminal Act “crime of violence” definition includes “burglary” as a named offense, and also any crime that “has as an element the use… or threatened use of physical force.” That normally includes robbery.

The exact “generic” definitions of burglary or robbery has split lower circuits.

In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns” exception to double jeopardy. The 5th Amendment provides that “no person shall… be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this is that a person may not be tried twice for the same offense. But the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.” A state may prosecute someone for the same crime that the federal government has already tried the person for, and the other way around.

doublejeopardy180924There is no lower-court split on this question, but scholars have long criticized this “separate sovereigns” exception to the double jeopardy clause as being without support.

Another case, Timbs v. Indiana, addresses the “no excessive fines” provision in the 8th Amendment. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state forfeited his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court refused to “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari.

Other criminal cases include Gundy v. United States, to be argued next week, that asks whether Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle?

The Court’s decision to hear Gundy case came as a surprise. The Justices have not invalidated a congressional delegation in over 80 years, and all federal appellate courts addressing the issue have concluded that the delegation was proper. At least four Justices, the number needed to grant certiorari, however, thought the issue worth considering, clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies.

On the merits, Mr. Gundy has a strong claim. For a delegation to be proper, Congress must provide an “intelligible principle” to guide the delegated decision, which as Chief Justice John Marshall stated in 1825 should merely “fill up the details” of a law’s application. With SORNA, Congress simply directed the attorney general to decide the retroactivity question — hardly a detail, as it affected half a million people and has required significant federal prosecutorial resources.

Two others include Nielsen v. Preap, asking whether a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody, and Garza v. Idaho, asking whether prejudice is presumed when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?

The Democrats react to Brett Kavanaugh... Regardless of your political persuasion, it's a safe bet you would not want to be judged by some of the crap you pulled off in high school.
The Democrats react to Brett Kavanaugh… Regardless of your political persuasion, it’s a safe bet you would not want to be judged by some of the crap you pulled off in high school.

Of course, the big Supreme Court story this week is whether Judge Brett Kavanaugh’s confirmation as the ninth Supreme Court justice will occur, or whether he will be shot down over claims he groped a girl as a drunken teenager 30 years ago. With a second accuser – albeit one with a shaky recall about an incident when Kavanaugh was a college freshman – reportedly coming forward, the nomination is looking shakier than ever.

SCOTUSBlog.com, Criminal cases in the October 2018 term: A law professor’s dream (Sept. 18, 2018)

Sentencing Law and Policy, Strange Bedfellows at the Supreme Court (Sept. 17, 2018)

– Thomas L. Root

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