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May 15, 2023

SCOTUS grants cert in ACCA cases to address prior drug convictions as predicates for 15-year mandatory minimum

As predicted in this recent post, the Supreme Court today in this morning's SCOTUS order list granted cert in a pair of cases (which were consolidated) raising another question regarding the application of the Armed Career Criminal Act's mandatory minimum 15-year prison term for illegal gun possession.  The cases are Brown v. US, No. 22-6389 and Jackson v. US, No. 22-6640, and here are links to the Brown cert petition and the Jackson cert petition.  Here is the "Question Presented" from the Brown petition:

The Armed Career Criminal Act provides that felons who possess a firearm are normally subject to a maximum 10-year sentence.  But if the felon already has at least three “serious drug offense” convictions, then the minimum sentence is fifteen years. 

Courts decide whether a prior state conviction counts as a serious drug offense using the categorical approach. That requires determining whether the elements of a state drug offense are the same as, or narrower than those of its federal counterpart.  If so, the state conviction qualifies as an ACCA predicate.

But federal drug law often changes — as here, where Congress decriminalized hemp, narrowing the federal definition of marijuana.  If state law doesn’t follow suit, sentencing courts face a categorical conundrum.  Under an earlier version of federal law, the state and federal offenses match — and the state offense is an ACCA predicate.  Under the amended version, the offenses do not match — and the state offense is not an ACCA predicate.  So the version of federal law that the court chooses to consult dictates the difference between serving a 10-year maximum or a 15-year minimum.

The question presented is:

Which version of federal law should a sentencing court consult under ACCA’s categorical approach?

UPDATE: A helpful reader made sure I did not overlook the fact that a different drug is at issue in the Jackson case.  At issue in that case is the status of a conviction that came before 2015 when "the federal government removed ioflupane I123 from the federal drug schedules."  

May 15, 2023 at 11:27 AM | Permalink


Oh great -- another categorical approach case!!!! Can't wait (not).

Posted by: DaMan | May 15, 2023 3:33:55 PM

I have to think that federal law at the time of the drug offense should be the proper comparison. It makes no sense to say that an already-entered conviction's severity rating should depend on later happenstance. Imagine instead that it were a federal conviction for something that later got downgraded, it shouldn't matter in that case either (unless, I suppose, the federal law doing the downgrading specifically included past offenses).

And yes, it's simply amazing how much of the Court's attention ACCA has garnered over the years.

Posted by: Soronel Haetir | May 15, 2023 4:01:40 PM

I can make the argument either way from a policy perspective. A recidivist enhancement is based on a history of past misconduct justifying an increased penalty for the current misconduct (effectively graduated discipline). If the conduct in question is one which we no longer find to be misconduct, there is an argument that we should not be increasing the penalty for the current misconduct. On the other hand, the past action was wrong when it was committed and does demonstrate a history of not complying with the law.

The bigger issue is how the categorical approach distorts this discussion. In the categorical approach, the defendant's prior actual conduct might still be misconduct today. But because the offense under which the prior conduct occurred used to include something that it no longer contains, should that impact our analysis of this issue. A solution might be to approve a variation of the categorical approach to look at the actual charging document and plea hearing to see if the defendant's prior conduct fits within today's statute if the state offense would pass the categorical approach as of the time of the prior offense.

Posted by: tmm | May 16, 2023 11:56:22 AM

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