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SCOTUS Goes For Defendant on ACCA Case – Update for June 27, 2024

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

“SEPARATE OCCASIONS” ACCA FINDING MUST BE BY JURY

In an unusual 6-3 lineup (with a vigorous dissent by Justice Ketanji Brown Jackson, who is widely assumed to be defendant-friendly), the Supreme Court ruled last week that the 5th and 6th Amendments require that imposing an Armed Career Criminal Act sentence on a convicted felon in possession of a firearm requires a jury, not a judge.

scotus161130The ACCA (18 USC 924(e)) imposes a mandatory 15-year prison term on a defendant convicted of being a felon in possession of a gun or ammo who has previously committed three violent felonies or serious drug offenses on separate occasions. Up to now, judges have made decisions on whether occasions were “separate” by a preponderance of the evidence. However, the Supremes hold that as an element of the offense, whether the felonies occurred on separate occasions, must be found by a jury and that the standard should be “beyond a reasonable doubt.”

circuitsplit220516Up to now, circuits have been split on whether a judge or a jury had to find that the three occasions were different. A Supreme Court opinion two years ago, Wooden v. United States, established standards for deciding when offenses had been committed on “different occasions.” Now, how those standards are to be decided has broken in favor of defendants as well.

A surprising twist in the case was that the government agreed with the defendant that the element should be found by a jury beyond a reasonable doubt:

Petitioner renews his contention that the 6th Amendment requires a jury to find (or a defendant to admit) that predicate offenses were under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v United States, the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

jury151228The decision is yet another chink in the armor of Almendarez-Torres v. United States, which permits a judge instead of a jury to find certain facts related to a defendant’s past offenses. That decision is at odds with Apprendi v New Jersey, which held that the elements of any statute that increased the statutory sentencing range had to be decided by a jury beyond a reasonable doubt.

The Erlinger majority described Almendarez-Torres as “an outlier” and “at best an exceptional departure” from historic practice. 

Erlinger v. United States, Case No 23-370, 2024 U.S. LEXIS 2715 (June 21, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Apprendi v. New Jersey, 530 U.S. 466 (2000)

– Thomas L. Root

Supreme Court Teeing Up Some Significant Criminal Law Decisions – Update for January 15, 2024

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

SUPREMES’ JANUARY LOOKING CONSEQUENTIAL FOR CRIM LAW HOLDINGS

alicewordsmeanhumpty231122The first argument of the current Supreme Court term last October, Pulsifer v. United States, ought to be yielding an opinion in the next few weeks. The First Step Actsafety valve” case – that considers whether “and” means “and” or simply “or” – has increased importance for a lot of people who might otherwise qualify for the zero-point sentence reduction under the new USSG § 4C1.1.

A condition of § 4C1.1 is that “the defendant did not receive an adjustment under § 3B1.1 (Aggravating Role) and was not engaged in a continuing criminal enterprise…” So does that mean the defendant is qualified unless he has a § 3B1.1 adjustment AND a CCE conviction? Or is he disqualified if he has a § 3B1.1 OR a CCE violation? There are a lot of § 3B1.1 enhancements out there, but not nearly as many CCE convictions.

Even without the § 4C1.1 angle, Ohio State University law professor Doug Berman said last week in his Sentencing Law and Policy blog that Pulsifer may “prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.”

Meanwhile, other interesting Supreme Court developments are happening largely unseen. Last November, the Court granted review in Erlinger v. United States, a case which asks whether the Constitution requires that a jury (instead of the judge) find beyond a reasonable doubt that an Armed Career Criminal Act defendant’s three predicate offenses were “committed on occasions different from one another.”

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

(The ACCA, for those who got here late, is a sentencing enhancement contained in 18 USC § 924(e)(2) which provides that the punishment for a felon-in-possession conviction under 18 USC § 922(g) begins with a mandatory 15 years and goes to life imprisonment if the defendant has three prior convictions for serious drug offenses or crimes of violence committed on occasions different from one another. Erlinger explores the collision of those elements with the 6th Amendment: can a judge find the ACCA applies to a felon-in-possession by a simple preponderance of the evidence, or must those elements be found by a jury beyond a reasonable doubt?)

The curious development in Erlinger is that both the Solicitor General and defendant Erlinger agree that after the Supreme Court adopted the current “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States” in 2022, the issue of whether the predicates were “committed on occasions different from one another” implicates a defendant’s Apprendi v. New Jersey rights to have facts that raise the statutory minimum and maximum must be decided beyond a reasonable doubt by a jury.

When both parties in a Supreme Court case agree on how the case should come out, the Court appoints a lawyer to argue the other side. SCOTUS has appointed one in this case, who will file a brief next month opposing the briefs Erlinger and DOJ have already filed.

Erlinger is important not only for the ACCA issue presented but because some on the Court have argued that where an enhanced penalty (like 21 USC § 851 drug enhancements) requires a showing of a prior conviction, due process requires that the fact of the conviction be decided by a jury. The Supremes ruled the other way in the 1998 Almendarez-Torres v. United States decision, a holding that was unaffected by the subsequent Apprendi ruling. Justice Clarence Thomas especially has criticized Almendarez-Torres, believing it is wrong, and the fact of prior convictions should be a jury question. Erlinger may give a holding that is expansive enough to address the Almendarez-Torres holding.

expert160905Last week, the Court heard argument in Smith v. Arizona, addressing whether a defendant’s 6th Amendment right to confront witnesses means that the lab expert who prepared a report on drug purity must be put on the stand to verify the report. Many courts currently permit another expert who did not conduct the test to testify as to drug purity based on the report’s findings.

The  Court seemed sympathetic to Jason Smith, an Arizona prisoner who contends that the expert’s testimony – based on a drug purity test performed by someone who wasn’t present to testify – contravened the 6th Amendment’s confrontation clause, which gives defendants in criminal cases the right to “be confronted with the witnesses against him.”

Finally, the Court will hear the argument tomorrow in Loper Bright Enterprises v. Raimondo, the case that could end Chevron deference – the notion that courts must defer to agency interpretation of statutes and rules. A change in Chevron deference could affect the Sentencing Guidelines, court deference to agency interpretation of gun laws, and court deference to BOP policies, among other changes.

Sentencing Law and Policy, Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi’s application to part of ACCA (January 9, 2024)

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

Erlinger v. United States, Case No. 23-370 (S.Ct., awaiting decision)

Smith v. Arizona, Case No. 22-899 (S.Ct., argued January 10, 2024)

SCOTUSBlog, Court appears to favor Arizona man’s confrontation clause claim (January 10, 2024)

Loper Bright Enterprises v. Raimondo, Case No. 22-451 (S.Ct., awaiting argument)

– Thomas L. Root

Government Joins Petitioner In Urging SCOTUS ACCA Review – Update for November 17, 2023

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

GOVERNMENT SUPPORTS SCOTUS REVIEW OF ARMED CAREER CRIMINAL ACT ISSUE
May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

The Armed Career Criminal Act provides that if convicted felons who possess firearms in violation of 18 USC § 922(g)(1) have three prior convictions for serious drug offenses or crimes of violence (or a mix of the two), they are subject to a 15-year-to-life sentence, with 15 years being the mandatory minimum.  The ACCA statute, 18 USC § 924(e)(2), can only be applied if the defendant has committed the three predicate offenses on different occasions.

Up to now, circuits have been split on whether a judge or a jury had to find that the three occasions were different. Recently, a Supreme Court opinion, Wooden v. United States, established standards for deciding when offenses had been committed on “different occasions.” Now, a pending petition for certiorari asks the Supreme Court to determine whether the Sixth Amendment requires a jury to find (or a defendant to admit) that the occasions really were different.

Surprisingly, the government agrees with the defendant that SCOTUS should hear the case:

Petitioner renews his contention that the 6th Amendment requires a jury to find (or a defendant to admit) that predicate offenses were under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v United States,  the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.

The Supreme Court considered the petition at its November 9th conference but relisted it for today’s conference. We could know Monday, but there is a decent chance that it will be relisted again.

relist230123Ohio State University law professor Doug Berman, writing in his Sentencing Law and Policy blog, observed that Justice Clarence Thomas “has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights.” In the 1998 Almendarez-Torres v. United States decision, the Supremes held that a court need not have proof beyond a reasonable doubt of prior convictions. Berman suggests that Erlinger could provide the Supreme Court “an opportunity to reconsider that (historically suspect) exception altogether.”

Brief for Government, Erlinger v. United States, Case No 23-370 (October 17, 2023) 

Wooden v. United States, 595 U.S. 360, 142 S. Ct. 1063, 1065 (2022)

Almendarez-Torres v. United States, 523 US 224 (1998)

Sentencing Law and Policy, US Solicitor General supports SCOTUS review and application of Sixth Amendment rights for key issue for applying Armed Career Criminal Act (November 7, 2023)

– Thomas L. Root

A Moment in Time: Wooden Redefines ‘Occasions’ – Update for March 17, 2022

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

THE OCCASIONAL CRIME

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

May you rest in peace, Betty... stealing America's hearts did not make you ACCA-qualified.
May you rest in peace, Betty… stealing America’s hearts did not make you ACCA-qualified.

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

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

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

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

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

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

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

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

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

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

The lawyers will be busy…

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

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

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

– Thomas L. Root

‘Great Occasions’, Predicate Crimes and the ACCA: The Supreme Court Speaks – Update for March 8, 2022

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

THREE CRIMES CAN BE ONE OCCASION, SUPREME COURT SAYS

louisianapurchase220308When Thomas Jefferson bought 530 million acres for $15 million in the Louisiana Purchase, he was violating his own sense of the proper limitations on federal authority.

The deal, however, was a steal: a lousy 3¢ an acre. It was just too good to pass up. Jefferson said at the time, “It is incumbent on those who accept great charges to risk themselves on great occasions.”

What if Jefferson’s purchase really was a steal, and he actually burgled 530 million acres from the French? Would he have committed a burglary on 530 million different occasions, or just 530 million burglaries at one time, on one “occasion?”

angels170726Talk about your angels on the head of a pin! But, arcane or not, this seemingly hyper-technical question yesterday – one with real-world consequences for many federal defendants – was addressed yesterday by the Supreme Court. A unanimous bench threw out an Armed Career Criminal Act sentencing enhancement for a man whose three predicate crimes of violence occurred during a single “occasion.”

The ACCA provides that the mandatory minimum sentence for a defendant convicted of an 18 USC 922(g) firearms offense – commonly known as felon-in-possession – is 15 years to life if the defendant has three prior serious drug offenses or crimes of violence. The statute – 18 USC 924(e) – holds that the three prior offenses must have occurred on “on occasions different from one another.”

The problem is that courts have taken an increasingly narrow view of what “different occasions” might be.

In 1997, Dale Wooden broke into a self-storage facility and burgled ten individual storage units. The State of Georgia convicted Dale of ten counts of burglary in a single state indictment. He received one sentence.

BettyWhiteACCA180503Seventeen years later, police found a gun in Dale’s house. The federal government charged him with felon-in-possession under 18 USC § 922(g)(1) and – because of the prior burglaries – prosecutors sought an enhanced ACCA sentence of 15 years. Absent the ACCA, Dale would have faced a Guidelines sentencing range of 27-33 months. He got 15 years (180 months).

Dale’s trial court held that each burglary occurred on a different occasion, because a new burglary did not occur until the old one had been completed. As a result, one night’s illegal frolic made Dale an armed career criminal.

Yesterday’s decision turned on the meaning of § 924(e). Justice Kagan, writing for the court, said Dale’s burglary convictions arose from a single criminal episode and thus did not count as multiple occasions. She complained that the government’s view that any time offenses occurred seriatim the occasions were separate gutted the “occasions different from one another” standard:

By treating each temporally distinct offense as its own occasion, the Government goes far toward collapsing two separate statutory conditions. Recall that ACCA kicks in only if (1) a §922(g) offender has previously been convicted of three violent felonies, and (2) those three felonies were committed on “occasions different from one another.” §924(e)(1). In other words, the statute contains both a three-offense requirement and a three-occasion requirement. But under the Government’s view, the two will generally boil down to the same thing: When an offender’s criminal history meets the three-offense demand, it will also meet the three-occasion one. That is because people seldom commit—indeed, seldom can commit—multiple ACCA offenses at the exact same time. Take burglary. It is, just as the Government argues, “physically impossible” for an offender to enter different structures simultaneously. (citation omitted). Or consider crimes defined by the use of physical force, such as assault or murder. Except in unusual cases (like a bombing), multiple offenses of that kind happen one by one by one, even if all occur in a short spell. The Government’s reading, to be sure, does not render the occasions clause wholly superfluous; in select circumstances, a criminal may satisfy the elements of multiple offenses in a single instant. But for the most part, the Government’s hyper-technical focus on the precise timing of elements—which can make someone a career criminal in the space of a minute—gives ACCA’s three-occasions requirement no work to do.

burglar160103Justice Kagen as well argued that the history of the ACCA supported her view. For the first four years of its existence, the “ACCA asked only about offenses, not about occasions. Its enhanced penalties, that is, kicked in whenever a §922(g) offender had three prior convictions for specified crimes—in the initial version, for robbery or burglary alone, and in the soon-amended version, for any violent felony or serious drug offense.” But after a court enhanced a sentence under the ACCA for six burglaries committed at once (see Petty v. United States, 481 U.S. 1034, 1034-1035 (1987), Congress amended ACCA to add the occasions clause, requiring that the requisite prior crimes occur on “occasions different from one another.” 

Yesterday’s decision was unanimous, although four justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Amy Coney Barrett — declined to join some of Kagan’s opinion, meaning they disagreed with some of her reasoning.

So how does a court tell whether the occasions are different or the same? Kagan called the inquiry that must be made “multi-factored in nature.” She wrote

Ontime160103Timing of course matters, though not in the split-second, elements-based way the Government proposes. Offenses committed close in time, in an uninterrupted course of conduct, will often count as part of one occasion; not so offenses separated by substantial gaps in time or significant intervening events. Proximity of location is also important; the further away crimes take place, the less likely they are components of the same criminal event. And the character and relationship of the offenses may make a difference: The more similar or intertwined the conduct giving rise to the offenses—the more, for example, they share a common scheme or purpose—the more apt they are to compose one occasion.

For the most part, applying this approach will be straightforward and intuitive. In the Circuits that have used it, we can find no example (nor has the Government offered one) of judges coming out differently on similar facts. In many cases, a single factor—especially of time or place—can decisively differentiate occasions. Courts, for instance, have nearly always treated offenses as occurring on separate occasions if a person committed them a day or more apart, or at a “significant distance.” (citation omitted). In other cases, the inquiry just as readily shows a single occasion, because all the factors cut that way. That is true, for example, in our barroom-brawl hypothetical, where the offender has engaged in a continuous stream of closely related criminal acts at one location. Of course, there will be some hard cases in between, as under almost any legal test. When that is so, assessing the relevant circumstances may also involve keeping an eye on ACCA’s history and purpose…

So where an ACCA defendant (as in one case with which I am familiar) broke into a strip mall and burgled one store, then pushed through the wall to another, it will be pretty easy to claim it was one occasion. In another case I worked on once, the defendant sold crack on the same street corner, was arrested for three undercover buys in 16 days. Different occasions? That one will be a lot closer.

Because yesterday’s decision interprets a statute, it will be retroactive on collateral review, meaning that people already convicted of an ACCA offense may challenge their sentence. Expect a wave of post-conviction litigation arising from this decision, in large part because the government has been so heavy-handed in charging ACCA enhancements where a more prudent prosecuting authority might not have been.

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

SCOTUSBlog, Court rejects enhanced sentence under Armed Career Criminal Act for man who broke into storage facility (March 7, 2022)

– Thomas L. Root

Happy New Year! – Update for October 4, 2021

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

WE’RE BA-A-A-CK…

happynewyear211004… the nine Supreme Court justices will say this morning, the first Monday in October and the first day of the Court’s new year. The high court begins its new term – which lasts until June 30, 2022 but is known as “October Term 2021” – with hearing arguments on one federal criminal issue and granting review to another.

First, the grant of certiorari. Last week at its annual “long conference,” where the Court disposed of over 1,200 petitions seeking review of lower court decisions, the Supremes granted review to a First Step Act case. Back when Congress passed the Fair Sentencing Act of 2010 to reduce the disparity crack and powder cocaine sentences, it did not make the Fair Sentencing Act retroactive to the thousands of crack sentences already imposed.

In Section 404 of the 2018 First Step Act, Congress granted retroactivity at the discretion of the defendant’s sentencing judge, but did not specify any standards for the judge to apply in deciding whether to reduce a sentence. The question raised in Concepcion v. United States is whether, when a court is deciding whether to resentence a defendant under the Fair Sentencing Act, the court must or may consider intervening developments (such as prison record or rehabilitation efforts), or whether such developments only come into play (if at all) only after courts conclude that a sentence reduction is appropriate.

FSAsplit190826

The 3rd, 4th, 10th, and DC circuits have held that district courts must consider all subsequent facts, and not just the changes to statutory penalties, when conducting Fair Sentencing Act resentencings. But in the 1st, 2nd, 6th, 7th and 8th circuits are only required to adopt the revised statutory maximum and minimum sentences for crack cocaine spelled out in the Fair Sentencing Act. In the 5th, 9th, and 11th circuits, district courts are prohibited from considering any intervening case law or updated sentencing guidelines, and are not required to consider any post-sentencing facts during resentencings.

Don’t expect a decision before June 2022.

Now, for today’s argument. The Supreme Court will begin its term hearing argument in Wooden v United States. Defendant Wooden broke into a storage facility and stole from 10 separate storage units many years ago. When he was found in possession of a gun years later, the district court sentenced him under the Armed Career Criminal Act to 15 years, because it found that he committed three violent offenses – the breaking into the 10 storage units – “on occasions different from one another.” The Court of Appeals agreed, arguing that the crimes were committed on separate “occasions” because “Wooden could not be in two (let alone ten) of [the storage units] at once.”

BettyWhiteACCA180503This has long been the worst aspect of the ACCA, itself as well-meaning but lousy law. A number of circuits hold that crimes are committed on different “occasions” for ACCA purposes when they are committed “successively rather than simultaneously.” Other circuits, however, looked beyond temporality and instead considered whether the crimes were committed under sufficiently different circumstances.

The Supreme Court will resolve the Circuit split. A decision is expected early next year, and – if the Court agrees defendant Wooden, a number of people serving ACCA sentences may be filing 28 USC § 2255 or 28 USC § 2241 petitions seeking reduced sentences.

Wooden v. United States, Case No. 20-5279 (Supreme Ct., argued Oct 4, 2021)

Concepcion v. United States, Case No. 20-1650 (Supreme Ct., certiorari granted Sep 30, 2021)

Law360, Supreme Court Will Seek To Solve Crack Resentencing Puzzle (September 30, 2021)

SCOTUSBlog.com, What’s an “occasion”? Scope of Armed Career Criminal Act depends on the answer. (October 1, 2021)

– Thomas L. Root