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April 18, 2007

Splintered SCOTUS upholds sentence enhancement in James

Though the rest legal world will sure obsess endlessly about the 5-4 Supreme Court ruling today upholding a federal ban on partial birth abortions, I plan to obsess (endlessly?) about the  5-4 Supreme Court ruling today upholding an application of a criminal history sentencing enhancement in James.  Here is the basic early report from SCOTUSblog on James:

In another 5-4 decision, the Court ruled that an individual convicted of attempted burglary under state law has committed a "violent felony" for purposes of a mandatory 15-year sentence under federal law dealing with armed criminals. The ruling came in James v. U.S. (05-9264).  Justice Samuel A. Alito, Jr., wrote for the majority.  The voted produced an unusual array: with Alito in the majority were Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Kennedy and David H. Souter.

Based on the unusual vote line-up and the outcome, I suspect James will provide many tea leaves about future Sixth Amendment cases.  I will, of course, post and comment on the opinion once it is available.

UPDATE:  The James opinion can now be accessed here.  It runs 44 pages total (including the syllabus).  Here is the dissenting line-up:  "SCALIA, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined. THOMAS, J., filed a dissenting opinion."  Why can't my printer go faster!!

April 18, 2007 at 10:23 AM | Permalink


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We are all wondering what you think of the Scalia/Alito (dare I say it..."Scalito") divide!

Don't keep us waiting...


Posted by: Martin Magnusson | Apr 18, 2007 11:23:54 AM

If you can read faster than your printer can print, you are a god among men...

...or you really need to replace your printer.

Posted by: | Apr 18, 2007 11:31:02 AM

Footnote 8 is interesting: the Court gives a hat tip to Almendarez-Torres. That's disconcerting. At the same time, the Court mentions the case in such a way that somebody who thought that case was wrongly decided could sign onto the opinion. Instead of saying "X is the law, cite Almendarez-Torres," they say we have held in ALmendarez-Torres that X is the law."

Has Breyer ever signed onto a defendant friendly sentencing case?

Posted by: Elson | Apr 18, 2007 11:39:12 AM

It just goes to show (as if we didn't know already) that Scalia and Alito aren't clonse.

Posted by: Marc Shepherd | Apr 18, 2007 11:56:27 AM

Wow. Does that mean that drunk driving would fall under the residual provision for crimes that “"otherwise involv[e] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii)?"

If so, since driving while talking on a cell phone poses the same risk, that means that every prosecutor, member of Congress, and perhaps some of the Justices themselves, who talked on his/her cell phone while driving is a violent felon under federal law.

Does the Court's opinion render the statute void for vagueness?

Question, how was James charged under federal law for a state offense? How did the ACCA get into the act?

Posted by: George | Apr 18, 2007 12:11:16 PM

One of the first arguments made is that the residual clause categorically excludes attempt crimes, reasoning that since Congress specifically included attempt in clause (i), its failure to include attempt in clause (ii) was intentional. This is a basic canon of statutory construction. The majority rejects it though because it "would unduly narrow clause (ii)'s residual provision." Whoa! Sounds like the majority has an agenda (i.e., a result they want to reach) and needs to find a way to get there. In other words, we reject your sound argument because it narrows the application of clause (ii), and we don't want a narrow application. The majority attempts to justify their broad application goal by claiming that the provision's language does not suggest a narrow reading. This rationale completely ignores the sound argument of statutory construction just made - that we assume the inclusion of a word in one clause and its exclusion in another was intentional.

Posted by: TStaab | Apr 18, 2007 12:28:13 PM

I should have read all of it as JUSTICE SCALIA is asking the same question in his dissent.

Posted by: George | Apr 18, 2007 12:33:50 PM

"Question, how was James charged under federal law for a state offense? How did the ACCA get into the act?"

He wasn't charged under federal law for a state offense. His offense of conviction was being a felon in possession of a firearm. The issue regarding his prior Florida attempted burglary conviction goes to whether his sentence would get bumped past the 10-year max for felon in possession into the 15+ year Armed Career Criminal range.

Posted by: JDB | Apr 18, 2007 2:04:33 PM

Thanks, JDB. I should have caught that in the opinion.

Posted by: George | Apr 18, 2007 2:11:40 PM

JUSTICE GINSBURG join, dissenting. "

My head just exploded.

Posted by: jsg | Apr 18, 2007 4:56:08 PM

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