The Supreme Court weighed on Nov. 27 how sentences under a federal three-strikes gun law should be imposed on defendants previously convicted of violent felonies or major drug offenses.
Federal law prohibits convicted felons from possessing firearms.
The often-litigated Armed Career Criminal Act (ACCA) was enacted in 1984 in response to concerns that a small number of repeat offenders were committing a disproportionate number of crimes.
The law requires that a 15-year minimum sentence be imposed on people found guilty of illegally possessing a firearm who have three or more prior convictions for “a serious drug offense” or violent felonies such as burglary “committed on occasions different from one another.”
The prior convictions are called predicate offenses.
A violent felony is defined by the statute as one that necessarily involves “the use, attempted use, or threatened use of physical force against the person of another.”
The cases of Brown v. United States (court file 22-6389) and Jackson v. United States (court file 22-6640) were consolidated and heard during an oral argument on Nov. 27 replete with highly technical discussions of statutory interpretation.
The issue is whether sentencing under ACCA should take into account the laws in effect when defendants committed the prior offenses or the laws in effect at the time the defendants used a gun in a new offense qualifying under the ACCA.
Justin Rashaad Brown asked the court to review his case because the federal government had already decriminalized hemp by the time he was convicted on a gun charge.
Eugene Jackson also asked for the court to look at his case. He disputes whether one of his prior convictions for cocaine possession constitutes a serious drug offense.
The U.S. Department of Justice (DOJ) opposes the positions taken by the two men.
Attorney Jeffrey T. Green spoke on behalf of Mr. Brown at the oral argument.
The court is examining “which drug schedules a sentencing court is to consult in order to determine whether a prior state drug crime is a match with those federal schedules, and thus, either is or is not, a predicate under the ACCA,” Mr. Green said.
The sentencing court should use the schedules in effect at the time of sentencing “because at its core, the ACCA is a sentencing enhancement—it is not a crime unto itself.”
“And this court has said that the ordinary practice is to apply current law, including at sentencing. There is no reason to deviate from that ordinary practice here,” he said.
Justice Clarence Thomas asked the lawyer: “But what if ... using your logic and your approach, there was a crime such as a state offense that ... was not included on a controlled substance schedule, but then subsequently, after the commission of the state crime, but before sentencing, it’s added. How would that work under your logic or your approach?”
Mr. Green replied that if prosecutors tried that, the defendant might be able to claim that this was “an ex post facto application of the law.”
An ex post facto criminal law retroactively disadvantages an accused person and is prohibited under Section 9 of Article I in the U.S. Constitution. Such a law makes conduct criminal even though it wasn’t criminal when committed, enhances punishment after the fact for crimes already committed, or alters procedural rules in effect when the crime was committed in a way that makes the person worse off.
Justice Samuel Alito asked Mr. Green if the court were to accept his argument, would that mean “no marijuana conviction prior to 2018 would count as an ACCA predicate?”
The justice was apparently referring to the Agricultural Improvement Act, which then-President Donald Trump signed into law in 2018. The statute legalized hemp production by taking it off the federal Schedule I list of controlled substances.
Hemp was defined as any part of a cannabis plant that contains less than 0.3 percent of THC, the psychoactive chemical in cannabis, also known as marijuana.
‘Profoundly Destabilizing Effect’
Mr. Jackson’s attorney, Andrew Adler, said the government’s hardline approach “would have a profoundly destabilizing effect on legislation in this country.”“Congress would have to copy and paste every statute that it wants to reference, and if ... you think the U.S. Code is unwieldy already, it would explode ... so that cannot possibly be right.”
DOJ attorney Austin Raynor told the justices that the matter was straightforward.
“Courts should consult the federal drug schedules in effect at the time of that conviction,” he said.
“That rule flows from the ACCA’s text,” which treats “both federal and state convictions as predicates.”
Justice Sonia Sotomayor said, “I think this is the most serious weakness in your argument because it doesn’t make much sense to me.” She added that the government’s cross-referencing with the Controlled Substances Act to determine predicate offenses would include the entirety of the act, not just part of it.
After Justice Neil Gorsuch joined in the discussion, Mr. Raynor said the court shouldn’t focus on “the present tense ... because this is a backward-looking statute.”
Justice Gorsuch asked Mr. Raynor whether the government was worried that the courts would become flooded with ex post facto challenges. “I’m sure the government’s given that some thought,” the justice said.
“We do not think there is any merit to that argument,” the attorney replied.
After the hearing, Mr. Green told The Epoch Times: “I think it went well for our side. I was pleased with the questioning by the justices and their nature.”
As if to allay the government’s concerns, he said the prior convictions still count at sentencing, so judges can still take them into account.
Mr. Adler declined to comment.
The Supreme Court will take up another ACCA case in its current term, which began in October.
The court is expected to decide whether the Constitution requires juries to determine whether a defendant has committed multiple prior offenses on separate occasions and therefore qualifies for an enhanced sentence under the ACCA.
The oral argument in the case, Erlinger v. United States, hasn’t yet been scheduled but is expected to take place in the new year. The justices agreed on Nov. 20 to hear the case. A decision would likely follow by June 2024.
The Supreme Court is expected to issue a decision in the cases heard on Nov. 27 by the end of June 2024.
