June 20, 2013
SCOTUS wraps its sentencing docket with another defense win (and Alito dissent) in Descamps
In this post exactly 10 days ago, I noted that the Supreme Court would soon hand down opinions its three long-pending sentencing cases Alleyne, Peugh and Descamps. In that post I further stated "based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I ... guess/predict that the defendant prevails in all three of these cases."
Today the Supreme Court handed down Descamps, the last pending opinion of this trio of sentencing cases, and sure enough the defendant has prevailed yet again before the Justices. Here is the early report via SCOTUSblog:
Descamps. Per Kagan. The modified categorical approach does not apply to statutes that contain a single indivisible set of elements.
This is about enhanced sentences for repeat offenders. It is 8-1. The dissenter was Justice Alito.
In Plain English, it is now harder for the government to use the facts of a prior conviction to enhance a federal criminal sentence. Here is the opinion in Descamps. The decision of the court of appeals against the defendant is reversed.
Based on a very quick review of all the opinions here, I think it is possible that Descamps will prove to be the most consequential of all the Supreme Court's criminal sentencing work this Term.
June 20, 2013 at 10:11 AM | Permalink
TrackBack URL for this entry:
Listed below are links to weblogs that reference SCOTUS wraps its sentencing docket with another defense win (and Alito dissent) in Descamps:
God only knows how much time and money USAOs and FPDs have spent on categorical approach litigation.
Posted by: AUSA 12 | Jun 20, 2013 11:38:24 AM
The Sensenbrenner/Goodlatte committee in the House should redraft the statute to allow the sentencing court to look at either the elements or, if that analysis does not yield a clear answer, at the facts of the putatively enhancing offense.
Posted by: Bill Otis | Jun 20, 2013 12:26:49 PM
The ruling actually should be counted as another Apprendi win. Every member of the Court but Alito and perhaps Thomas (who only concurs in result based on his contempt for Almendarez-Torres -- a resentment he notably did not mention in writing the opinion for the Court in Alleyene)says that the categorical approach has its underpinnings in the Sixth Amendment jury trial right. States the majority: "So when the District Court here enhanced Descamps' sentence, based on his supposed acquiescence to a prosecutorial statment (that he 'broke and entered') irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant's maximum sentence."
The constitutional doubt principle that only part of the Shepard majority bought would now seem to have the endorsement of at least seven justices. So, Doug, you're right in believing this may be the sleeper ruling of the criminal law segement of this term.
Posted by: DCH | Jun 20, 2013 1:10:04 PM
I don't see anyway that a change like that would withstand a constitutional challenge before this Court. If it wasn't an element of the offense, then the defendant wasn't convicted of it. It is, therefore, subject to Apprendi, not Almandarez-Torres.
Posted by: Matt | Jun 20, 2013 2:02:03 PM
You misapprehend the nature of today's decision, which was a matter of statutory construction, not the constitutionality of using a facts-centric versus an elements-centric approach. Nothing in the decision, or in other SCOTUS decisions construing the ACCA, suggests that Congress's changing the statute to a fact-centric provision would violate the Constitution.
Posted by: Bill Otis | Jun 20, 2013 2:44:31 PM
What does this do to the residual clause? That covers any offense
"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."
Posted by: Anon | Jun 20, 2013 2:51:14 PM
Nothing, Bill? From page 12:
"This Court offered three grounds for establishing our elements-centric, 'formal categorical approach.' Taylor, 495 U. S., at 600. First, it comports with ACCA’s text and history. Second, it avoids the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries. And third, it averts 'the practical difficulties and potential unfairness of a factual approach.' Id., at 601. When assessed in light of those three reasons, the Ninth Circuit’s ruling strikes out swinging."
That second ground sure seems like a good suggestion to me.
Posted by: AnotherFPD | Jun 20, 2013 3:40:57 PM
I didn't misaprehend it at all. Aside from AnotherFPD's post above we as a community are allowed, and indeed encouraged, to think about the consequences even if the Court hasn't stated it. It seems to me abundantly clear given this Court's strong stance on Apprendi, that they would hold non-elements are never proved BRD to a jury and are therefore not "convictions." I get that you may disagree with this ruling as well as maybe even Apprendi itself, but that doesn't change the fact that it really is a pretty simple and straightforward analysis to say it wouldn't withstand the constitutional challenge that would be sure to come.
Posted by: Matt | Jun 20, 2013 4:45:01 PM
I have to agree that there is no way a "facts-based replacement" of the ACCA would be approved by this Court. Justice Kagan pretty well demolished that possibility, and she got 8 votes. That door is slammed shut.
Posted by: Marc Shepherd | Jun 20, 2013 6:21:19 PM
I agree with the comment of AUSA 12. I've litigated various issues surrounding this confusing and complex statute.
See e.g., U.S. v. Adams, 358 Fed.Appx. 820, 2009 WL 4884303 (9th Cir. 2009) (Under modified categorical approach to determining whether defendant's prior guilty-plea conviction for second degree burglary under Oregon law qualified as a generic burglary for purposes of the Armed Career Criminal Act (ACCA), court could not infer burglary of a building or structure from fact that the indictment charged defendant with first-degree burglary of a “dwelling); U.S. v. Bell 983 F.2d 910 (9th Cir. 1992) (Three prior Oregon felony convictions could not be used as predicates to enhance sentence on federal conviction for possession of firearm by felon where defendant's civil right to possess rifle was restored upon discharge from Oregon convictions).
Posted by: Michael R. Levine | Jun 20, 2013 6:31:45 PM
The amendment to the ACCA would replace element-centric with fact-centric, providing that the needed fact(s) would be submitted to a jury and found BRD (or agreed to by the defendant in the plea bargain). I never said or implied otherwise, and just this week, on a different thread, I expressly recommended the BRD standard for enhancers, by whatever name they are called.
Is there something that prevents Congress from adopting such an amendment? Something in the majority opinion? What would that be?
Posted by: Bill Otis | Jun 20, 2013 6:32:02 PM
@Bill: Ah, misunderstood you the first time. I agree that Congress could do that, but I wonder if it's worth the candle. Obviously, there's no problem in cases settled with plea bargains. But in those that go to trial, the government would (in effect) have to re-try old cases that might have been decades in the past. How often is that really worth doing?
Posted by: Marc Shepherd | Jun 20, 2013 9:36:57 PM
I think the Court has had it with Congress's sloppy drafting of the ACCA statute, and that Congress needs to write a more carefully worded revision. As long as there's a committee already looking into current problems with federal criminal statutes (particularly non-mens rea and regulatory crimes), I'd like them to revisit this one, too.
Posted by: Bill Otis | Jun 20, 2013 11:01:04 PM
Marc, it would probably depend on the nature of the guilty pleas in question, the jury instructions in the present case, and the standard for sufficiency of the evidence.
Let's say in a different California burglary case, rather than standing silent when the prosecution stated that he had entered the building unlawfully, the defendant had acknowledged the accuracy of the State's version of events. I would think, but the AUSA and FPDs can tell me if I am wrong, that all that would be needed under the revised ACCA allowing juries to decide if the prior conviction counts for the new jury to decide that the old conviction qualifies.
If the plea resembled the one in this case, and you actually needed to prove contested facts from the old case, I suspect that many will decide not to push the enhancement as more than a bargaining chip.
Posted by: tmm | Jun 21, 2013 10:30:14 AM
"based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I ... guess/predict that the defendant prevails in all three of these cases."
If I may be allowed to translate for the people of earth. That is lawyer code for enhanced procedures, to generate more government make work jobs for the lawyer profession. There is no shred of evidence validating these decisions outside of rent seeking. Do these decisions enhance the accuracy of the verdict? No evidence for such. Do they protect the innocent? No evidence for such. Do they increase the respect of the public for the Court? Perhaps the opposite is true.
Posted by: Supremacy Claus | Jun 22, 2013 12:32:06 PM
It seems to me like in footnote six (6), the majority is inviting cert on the issue of whether the residual clause can ever apply to a burglary statute that does not categorically qualify as an enumerated offence of burglary.
Posted by: Gene | Jun 22, 2013 10:43:36 PM