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March 12, 2022

Some first-cut musings on US v. Wooden, the latest SCOTUS effort to make ACCA less wacky

The US Supreme Court started the past work week by handing down one opinion, a sentencing win for a federal criminal defendant in US v. Wooden, No. 20-5279 (S. Ct. March 7, 2022) (available here).  Though all nine Justices voted in favor of the defendant, there were five opinions (with Justice Kagan writing for the Court, and four concurrences).  I could rattle off a few dozen thoughts about all the opinions, but I will close out the week with just these five musings, presented roughly from the general to the specific:

1.  Sentencing at SCOTUS: By various metrics the current Supreme Court is extremely conservative, and yet every single Justice voted in favor of William Wooden on a statutory issue after a majority of circuit courts had sided with the government.  In the Blakely, Booker, Roper, Gall, Kimbrough, Graham era, I had gotten in the habit of calling SCOTUS the most pro-defendant appellate court in the nation on sentencing issues.  I no longer think that is an accurate description, but Wooden is still a very important reminder that certain sentencing issues can and will garner votes from an array of Justices across the jurisprudential spectrum.

2.  ACCA in application is ridiculous: The idea behind the Armed Career Criminal Act (ACCA) makes sense: give longer sentences to dangerous people with guns who have a really bad criminal history.  But Wooden is also a reminder how crazy this statute functions in operation.  The actual offense behavior is largely irrelevant — William Wooden merely had a gun in his home for self protection, some have been tripped by merely possessing shotgun shells — and figuring out what criminal history triggers a 15-year mandatory minimum (as opposed to a 10-year maximum) is often a parlor game of such nonsensical semantics it would make Franz Kafka blush.

3.  Justices as magistrates with no majesty: Though a few concurrences had some flair (see below), the opinion of the Court and some others felt technocratic, resolving only this one case without having much to say about ACCA or any other issues.  Some may praise an opinion with so little majesty as a model of judicial modesty, but Justice Gorsuch's concurrence highlighted that not much really got resolved even as the Justices remained modest.  More generally, though the Wooden case implicates issues ranging from violent crimes to mandatory minimums, from Second Amendment rights to repeat offenders, few Justices wanted to do much more than parse definitions, hypos and legislative history.  Perhaps saying so little is how this case came out unanimously, but label me uninspired.

4.  Justice Kavanaugh as a mens rea maven: I have been wondering what criminal justice issues might be of particular interest and concern to Justice Kavanaugh, and his Wooden concurrence reveals he could develop into a mens rea maven.  Though his concurrence was mostly to push back against Justice Gorsuch's paean to the rule of lenity, Justice Kavanagh concludes by stressing his eagerness to "continue to vigorously apply (and where appropriate, extend) mens rea requirements" in statutory interpretation cases.  We might see more of what he means later this Term, as the pending case concerning doctors federally prosecuted for over-prescribing opioids turns on mens rea matters.  And litigants should be looking out for "appropriate" cases in which Justice Kavanaugh might be inclined to "extend" mens rea requirements.

5.  Justice Gorsuch as liberty lover: The US Constitution's preamble speaks of the document as a means to "secure the Blessings of Liberty to ourselves and our Posterity."   William Wooden, for possessing a gun in his home with his past criminal history, was punished with liberty deprivation for 15+ years in federal prison.  Only Justice Gorsuch mentions liberty in any of the many Wooden opinions, and he does so seven times.  Here are just a few choice mentions:

I was pleased that Justice Gorsuch, joined by Justice Sotomayor, stressed liberty and thus brought the opinions in the Wooden case to a somewhat more satisfying end.  And I hope some of these "liberty in the face of uncertainty" sentiments find future expression in the work of many judges and Justices.

Prior related posts:

March 12, 2022 at 04:09 PM | Permalink


I saw and worked on dozens of ACCA cases while serving my own time in Federal prison. A few of the cases were strange and bizarre. One case involved a defendant who qualified for ACCA treatment for "constructive possession" of a single shotgun shell in the door pocket of his father's pickup truck, which he had driven to his parents' farm after church on a Sunday. The defendant's wife drove their car, while he drove his parents home in their pickup truck after church, so that they could eat Sunday dinner prepared by defendant's Mother. There were no fingerprints on the single shotgun shell and the father claimed that it was his shell, which he had left in the door pocket after an early morning dove hunt. There was no weapon (shotgun) in the truck either. The father had locked the shotgun in his gun safe in his garage before going to church. The son, a felon, does not even appear to have been aware that the shell was present in the door pocket of the father's pickup truck. The son was charged with being a felon in possession of ammunition and then qualified for ACCA treatment, based on his prior felony convictions. I thought this was one of the most stupid and unfair applications of the ACCA that I have ever seen. It seemed me that the prosecutor either had some undisclosed agenda against that defendant, or he failed to exercise any prosecutorial discretion in the case.

Posted by: Jim Gormley | Mar 13, 2022 4:28:23 PM

One of my great legal victories on behalf of another inmate while serving Federal time was getting an ACCA sentence vacated and set aside via 2255 habeas corpus motion. Defendant's attorney had been ineffective as counsel because he failed to note or object that two of the defendant's predicate felonies for ACCA had been consolidated together in a state Court via a written Order, so under the ACCA rules, they really only should have counted as ONE strike for ACCA purposes, not TWO separate strikes. That left the defendant one strike short of qualifying for ACCA treatment, so his ACCA conviction and sentence had to be vacated and dismissed on habeas corpus. At re-sentencing following the habeas corpus victory, defendant's 23-year ACCA sentence was vacated and he was re-sentenced to 11 years. He was quite pleased with my work, and bought me a bag of coffee at the commissary! Also, the inmate's security level in the BOP dropped with the ACCA conviction and time gone, so he was soon transferred from our FCI (Medium Security) to a Low Security prison. His 2255 habeas corpus brief was only 3 pages long and cited only 4 cases; I also attached as an exhibit a copy of the state court Order consolidating the two state cases together for purposes of sentencing and guilty plea. It was a simple, straight-forward mistake made by defense counsel, which was easy to prove.

Posted by: Jim Gormley | Mar 13, 2022 4:40:55 PM

People who haven't served time in prison don't understand how long-term inmates can become so institutionalized that they prefer prison and cannot bear to remain in the "free world", even with strong support. One such person that I met at USP - !, Coleman, Florida got an ACCA sentence for an armed bank robbery he committed a few months after being released from serving 25 years in a North Carolina state prison for crimes (armed robbery of a convenience store, felon in possession of a firearm and "standing kidnapping", for telling customers in the store that they could not leave while he was robbing it) he had committed at age 19. Defendant was originally sentenced to serve 60 years in prison for armed robbery, felon in possession and standing kidnapping. While he was serving that sentence, the North Carolina Legislature changed the law, resulting in his sentence being cut in half, to 30 years. He served 25 years on 30, and was released on parole. A church took him under their wings, and gave him a home to live in, a pickup truck to drive, a job that paid well, and they invited him into their homes for meals and to their church for services. He had as good a post-incarceration landing as any inmate could hope for after serving 25 years in prison. But he just couldn't tolerate the free world, so 5 months after his release from state prison, he committed an armed bank robbery, for which he was caught and prosecuted in Federal Court. In a story line that you just couldn't make up, his prior state court Judge (who gave him 60 years) had been appointed to the Federal bench and presided over his armed bank robbery and felon in possession of a firearm case. At sentencing, the Judge bluntly told him that when he gave him 60 years 26 years earlier, he had intended him to remain in prison until he was a very old man. The Judge gave him a life sentence this time. In prison, defendant admitted that he had everything he needed, provided by the people from the church, but he had to do the bank robbery anyway. He just isn't comfortable living in the "free world"; he prefers prison life, and he got his wish.

Posted by: Jim Gormley | Mar 13, 2022 5:10:10 PM

The first one is so sad!

Posted by: Marc Shepherd | Mar 14, 2022 8:18:03 AM

With that first one, I do have to wonder what circumstances led to the truck being searched to begin with. That could make for a very different situation, depending.

Posted by: Soronel Haetir | Mar 14, 2022 3:13:02 PM

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