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February 22, 2021

SCOTUS grants cert on yet another intricate Armed Career Criminal Act issue

The Supreme Court is back in action today after its February hibernation, and it kicked off a new round of activity with this long order list. Though I suspect some extended dissents from the denial of cert on non-criminal issues will garner the most attention, sentencing fans will be intrigued (or perhaps annoyed) that the Justices have taken up yet another case dealing with the intricacies of the Armed Career Criminal Act. The case is Wooden v. United States, No. 20-5279, and cert was granted on this question from the initial pro se cert petition:

Did the Sixth Circuit err by expanding the scope of 18 U.S.C. § 924(e)(1) in the absence of clear statutory defintiion with regard to the vague term "committed on occasions different from one another"?

The defendant's reply brief in support of the cert petition spotlights the facts and the extreme sentencing consequences at issue in Wooden:

Petitioner William Dale Wooden broke into a ministorage facility in Georgia one night in 1997.  He entered ten units during the course of the crime and later pleaded guilty to ten counts of burglary.  Were these burglaries committed “on occasions different from one another”?  Fifteen years in federal prison depends on the answer.  If not, Wooden’s sentence for possessing a firearm as a felon would have been only 21 to 26 months; he would have been “home by Christmas 2016.” D.Ct.  Dkt. 84, 1-2.

But the Sixth Circuit answered yes, affirming a harsh mandatory-minimum sentence.  So Wooden will remain incarcerated until 2028.  That wrongheaded decision exacerbated an acknowledged circuit split on an important and recurring question.

Most federal sentening fans know how intricate and consequential interpretations of ACCA can be for certain persons who illegally possess a firearm. But I still find the facts in a (largely unremarkable) case like Wooden remarkable.

As I read the government's filing, the defendant here at the time of sentencing had, besides the nearly 20-year-old ministorage burglaries, one other burglary conviction that was 10 years old and an assault conviction that was more than a quarter-century old.  Rather that having Wooden's illegal firearm possession sentence now turn on judicial consideration of the seriousness of his current offense conduct and his true criminal history, ACCA served to make 15 mandatory(!) years of federal prison time turn entirely on legal technicalities rather than thoughtful consideration of what justice and crime control demands. Sigh. 

February 22, 2021 at 10:30 AM | Permalink


It seems to me that a 10-unit "spree" of burglarizing storage facility units at on, single storage facility on the same day, within 2 hours should be viewed legally as a single occurrence or they should be grouped together and counted concurrently. Common sense seems to dictate that result, but then common sense isn't always common in Federal criminal appeals concerning the ACCA.

Posted by: Jim Gormley | Feb 23, 2021 9:49:56 AM

The path of this case bears note. This Petitioner filed a pro se Petition for Certiorari on forms from Federal prison. From reading his pro se Petition, he seems to have had help from a good prison law clerk or a so-called "jailhouse lawyer". At some point, the pro bono team at Arnold & Porter in D.C. got involved and ultimately filed the extraordinarily well-written and researched Reply to the Government's Response. Notably, there is no Order by the Supreme Court appointing Arnold & Porter to represent this Petitioner, although some informal phone call may have been made to partner Allon Kadem, who previously Clerked for two Justices. Research indicates that the Arnold & Porter partner heading up the Petitioner's representation is one of the most accomplished and capable Supreme Court advocates in America. Allon Kadem has clerked at every level of the Federal Judiciary. He is a graduate of Harvard College (magna cum laude, Phi Beta Kappa) and Yale Law School. This inmate, Mr. Wooden, won the legal representation lottery and has a strong case for being released from prison as a result. Arnold & Porter has always had a strong pro bono commitment, from which I have personally benefitted. Arnold & Porter represented me after I filed my pro se 2255 Habeas Corpus Motion in the early to mid-2000s. The Magistrate Judge who had my 2255 Motion sat on it for years, rather than read 17 days of trial transcripts. Ultimately, the District Judge took the case away from the Magistrate. By that time, I had already completely served the sentences for all but one of my Counts of Conviction. Only my conviction for conspiracy to commit money laundering was still holding me in prison. When 2 more months passed and the District Judge also had done nothing with the case, despite numerous phone calls and letters from Arnold & Porter, partner Kathleen "Kitty" Behan (also a Yale Law School grad) filed a Petition for a Writ of Mandamus with the Fourth Circuit Court of Appeals, seeking an Order directing the District Court to address my 2255 Motion. She said that it was only the 2nd time in 23 years of practice that she had ever found it necessary to file a Petition for Mandamus. This District Judge was served with the Writ Petition and given 10 days to respond to the Fourth Circuit. Perhaps predictably, on the 9th day, he filed a 6-page Order summarily denying my 2255 Motion without any evidentiary hearing; and then he told the Fourth Circuit that the Mandamus issue was moot, because he had denied the 2255 Motion. I hope that Mr. Wooden had better luck than I did.

Posted by: Jim Gormley | Feb 23, 2021 10:50:32 AM

I forgot to mention that Petitioner's attorney, Allon Kedem, is a former Asst. Solicitor General of the United States and has previously argued 11 cases before the U.S. Supreme Court. I contacted Mr. Kedem by telephone this morning to congratulate him and to suggest that he might seek a Habeas Corpus release of Mr. Wooden from Federal prison immediately, prior to the Supreme Court reaching the merits of his case. According to Mr. Kedem's Reply Brief, if Mr. Wooden had not been wrongfully enhanced as an Armed Career Criminal, he would have been released from prison in 2016, almost 5 years ago. Thus, it seems morally wrong to keep Mr. Wooden incarcerated for another 1 to 2 years while his case is briefed, argued and decided by the Supreme Court. There is Supreme Court precedent for what I am suggesting. See, Levy v. Parker, Warden", 396 U.S. 1204 (1969) (Douglas, Justice, In Chambers) (Inmate ordered released from prison on Habeas Corpus bond, because his sentence would have been completed before the Supreme Court could resolve the merits of his case).

Posted by: Jim Gormley | Feb 23, 2021 1:06:57 PM

I am interested in this case because of its potential for being persuasive authority in state court.

Many state recidivist statutes include similar language requiring that the prior offenses not be at the same time. While not controlling, whichever way the Supreme Court goes will color the arguments in state courts on those statutes.

Posted by: tmm | Feb 23, 2021 2:48:49 PM

Wasn't Kitty Behan also Roger Coleman's lawyer? God bless her.

Posted by: Def. Atty. | Feb 24, 2021 12:04:22 PM

Yes, Defense Lawyer, Kitty Behan did represent Roger Coleman. His case took a heavy emotional toll on her. When the post-execution DNA testing came back clearly confirming his guilt, she became deeply depressed. He had convinced her that he was actually innocent, so it hurt Kitty to the core to realize that she had been so deceived by a cold-blooded rapist and killer. She poured her heart and soul into his case. Ultimately, she left her partnership at Arnold & Porter and took some time off from practicing law.

Posted by: Jim Gormley | Feb 25, 2021 10:19:32 AM

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