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October 29, 2016

SCOTUS takes up Booker/mandatory sentencing issue and two sex-offender collateral-consequences cases

I had a spectacular afternoon mostly off-line yesterday: I heard Sandy Levinson talk about his book on the Federalist Papers; I talked with my 1L students about a famous criminal case after an infamous disaster; I spoke at lengthy to a reporter about the prospects for federal criminal justice reform in 2017; I had great happy hours conversations with students, friend and family, followed by a spectacular burger at my favorite local gastropub; and I managed to stay awake for (most of) one of the all-time great modern World Series games.

What I did not manage to do until this morning, however, was remember that SCOTUS yesterday had a conference to consider new cases for its docket.  Helpfully, this SCOTUblog post reports on the five SCOTUS cert grants on the last Friday in October 2016, and three of the cases are sure to be worth sentencing fans' attention.  Here are the three grants as described by Amy Howe from SCOTUSblog, organized by me in order of "importance" for those most obsessed with modern sentencing systems: 

The facts of Dean v. United States read like a “true crime” novel, involving robberies of drug dealers in the Midwest. Levon Dean, the defendant in the case, was convicted under the Hobbs Act, a federal law that makes it a crime to “obstruct, delay, or affect commerce” through a robbery.  The justices today declined to review Dean’s challenge to his Hobbs Act convictions, but they agreed to weigh in on a separate question: the scope of a federal trial court’s discretion to consider the mandatory consecutive sentence under 18 U.S.C. § 924(c), which makes it a crime to use or carry a firearm during a crime of violence, in determining a sentence for the felony that serves as the basis for the Section 924(c) conviction.  Dean argued that the district court had the authority to impose a very short sentence — as little as one day — for his Hobbs Act convictions, to take into account the much longer sentence required by Section 924(c), but the lower courts disagreed.

Among the court’s other grants today, Packingham v. North Carolina is the case of Lester Packingham, a North Carolina man who became a registered sex offender after he was convicted, at the age of 21, of taking indecent liberties with a minor.  Six years after Packingham’s conviction, North Carolina enacted a law that made it a felony for registered sex offenders to access a variety of websites, from Facebook to The New York Times and YouTube. Packingham was convicted of violating this law after a police officer saw a Facebook post in which Packingham celebrated, and gave thanks to God for, the dismissal of a traffic ticket.  The justices today agreed to review Packingham’s contention that the law violates the First Amendment.

In Esquivel-Quintana v. Lynch, the justices will make another foray into an area of law known as “crimmigration” — the intersection of immigration and criminal law.  The petitioner in the case, Juan Esquivel-Quintana, was a lawful permanent resident of the United States in 2009, when he was charged with violating a California law that makes it a crime to have sexual relations with someone under the age of 18 when the age difference between the two people involved is more than three years; he had had consensual sex with his 16-year-old girlfriend when he was 20 and 21 years old.  The federal government then sought to remove Esquivel-Quintana from the United States on the ground that his conviction constituted the “aggravated felony” of “sexual abuse of a minor.”  The lower courts agreed with the federal government, but now the Supreme Court will decide.

October 29, 2016 at 11:23 AM | Permalink


I commented on the post here regarding a case that upheld a challenge regarding monitoring social media. Noted it was a limited claim. This seems more like the outer limits.

It is not a sentencing case, of course, but the trans case very well might in some broader sense affect the criminal justice realm given trans issues do arise there.

Since I read the blog he sometimes writes at, the Sandy Levinson thing is almost a crossover opportunity. You did have a busy day and night. I'm decided to root for the Indians, partially since they are sort of the underdogs here. Mostly, hope for a long series. No three game sweep after being down 2-1 repeat for the Cubs, please.

Posted by: Joe | Oct 29, 2016 11:49:15 AM

"in considering those and other similar sites, we find that even where defendant is correct, the Web offers numerous alternatives that provide the same or similar services that defendant could access without violating N.C.G.S. § 14-202.5. For example, defendant would not violate N.C.G.S. § 14-202.5 by accessing the Paula Deen Network, a commercial social networking Web site that allows registered users to swap recipes and discuss cooking techniques, because its Terms of Service require users to be at least eighteen years old to maintain a profile. Paula Deen Network Terms of Service, http://www.pauladeen.com/terms-of-service/ (last visited 5 November 2015) (“This website is designed for and targeted to Adults. It is intended solely and exclusively for those at least 18 years of age or older.”). Similarly, users may follow current events on WRAL.com, which requires users to be at least eighteen years old to register with the site and, as a result, is not prohibited."

It's difficult to find a more shameful passage in American jurisprudence.

This case should be 8-0.

Posted by: federalist | Oct 29, 2016 11:55:42 AM

Federalist, do you really consider the passage you quote to be among the most "shameful passage[s] in American jurisprudence"? If so, I may not longer call you a partisan, since this passage was authored by a judge who had been made US Attorney by Prez Reagan and who has been endorsed for reelection by "Ninety-five out of one hundred North Carolina county sheriffs" and by NC Gov Pat McCrory and the NC Conservatives Political Action Committee.

Are you going to ease up now on "'rat judges," federalist, given that this historically "shameful passage" was authored by a GOP favorite?

Posted by: Doug B. | Oct 29, 2016 12:14:24 PM

Speaking of sex offender laws, Halloween is fast approaching, which brings us to those states and municipalities that require former sex offenders to either stay indoors or go to a police station during the Halloween period.

This practice not only fails to protect children's safety, especially from non-sex offenses like drunk- or hit-and-run driving during trick-or-treat night that endangers both children and parents as they cross the street to trick-or-treat, but it puts police officers themselves at needless risk to their own safety WITHOUT protecting the general public safety.

I can think of two ways that such dumb sex offender restriction laws needless endanger polices' lives: the accidental and the deliberate.

In the accidental scenario, a former sex offender inside his or her house with all the porch lights off might mistake the knock on the door by a police/parole officer as that of either a burglar or a vigilante. In such a case, the former sex offender might panic and invoke the "stand your ground" policy of shooting who ever knocks or who breaks the door down. The shocked resident realizes now that he or she accidentally killed a law enforcement personnel member and now panics about the possibility of a death sentence for a cop-killing too late.

The second scenario is the deliberate killing where a former sex offender, fed up with post-sex offender restrictions, decides to get even by booby-trapping his or her house on Halloween to trick-or-treat any police or parole officers who invite themselves on the former sex offender's private property.

In either of the above two scenarios, one or more law enforcement personnel officers die WITHOUT contributing to the public safety.

Let's use those officers against REAL time crime (crimes as they are being committed) instead of wasting and risking valued human resources on those former felons who are NOT committing any crime.

Posted by: william r. delzell | Oct 29, 2016 12:31:03 PM

While there may be alternative sites that do not qualify, the definition in the statute -- site generates some revenue (either through fees or advertising), some social interaction including exchange of information, and user profiles/webpages with some personal information -- seems to cover a lot of sites, including potentially sites that are primarily devoted to the discussion of public policy. More importantly, the breadth of the definitions is rather broad and ambiguous potentially causing sex offenders to avoid sites not subject to the act merely because they do not know if they can visit the site. Was a little surprised that this case got a grant before the election. Was sort of expecting a per curiam reversal the week after the election.

Posted by: tmm | Oct 29, 2016 6:06:26 PM

Why would I ease up on 'rat judges? That quote actually reminded me a little of Stevens' opinion on a South Carolina beach takings case--when he said that the owner could enjoy the view.

Doug, you're actually far more of a "homer" than I am---if someone is in favor of "smart sentencing" or other of your policy preferences, even appalling conduct will be airbrushed.

Posted by: federalist | Oct 29, 2016 7:26:56 PM

I agree 100% that I tend to agree with and praise on this blog those people/institutions who agree with me and I tend to disagree with and criticize on this blog those people/institutions who disagree with me. Indeed, I readily cop to being a "homer" here at my blog home.

But, critically, the party-affiliations of people/institutions whom I discuss does not excessively distort my perspective, and I do not use labels like "'rat" as a pejorative adjective. I leave that to party partisans like you, partisan federalist.

Posted by: Doug B. | Oct 29, 2016 8:18:52 PM

Packingham scares me because every time the court has got involved in 1A issues they take the mess that is 1A law and mess it up even more. Even if Packingham wins they are likely to get there by mucking things up even worse.

Personally I would be happy is the court never took another 1A case again...

Posted by: Daniel | Oct 29, 2016 9:37:34 PM

Muskrat judges are pretty good.

Posted by: Joe | Oct 30, 2016 1:18:46 PM

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