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READING SUPREME COURT TEA LEAVES ON ACCA

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

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

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

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

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

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

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

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

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

– Thomas L. Root