I continue to be mystified by the Supreme Court’s jurisprudence on the Armed Career Criminal Act. The Court has been remarkably active in taking ACCA cases in recent years, but I’m hard-pressed to see much coherence in the outcomes. On the one hand, there is the Begay line of cases, which have substantially narrowed the definition of “violent felonies” that can be used as a predicate for the ACCA fifteen-year mandatory minimum. (For background, see my post here.) Yet, there are plenty of other ACCA cases – many involving short, unanimous decisions, as if the underlying legal issues were entirely unproblematic – that adopt unnecessarily expansive interpretations of the ACCA triggering language.
Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.
Here’s the background on McNeill from an earlier post:
McNeill was convicted of being a felon in possession of a firearm. He had two prior convictions for violent felonies. In order to get a third ACCA predicate, the government pointed to McNeill’s drug trafficking convictions in North Carolina in 1992 and 1995. At the time he committed those offenses, North Carolina law specified a maximum sentence of ten years for each. Thus, at first blush, the convictions seem to fall pretty clearly within the ACCA’s definition of “serious drug offense”: “an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”
But here’s the catch: North Carolina changed its sentencing law, and the crimes for which McNeill was convicted now carry a maximum of only 25 months in prison. If McNeill did today exactly what he did before, the resulting convictions would plainly not count as ACCA predicates.
The change-in-law problem has produced a circuit split, which the Supreme Court will now presumably resolve.
McNeill relies on the use of the present tense in the statutory definition of “serious drug offense”: “ten years or more is prescribed.” He also argues that the ACCA was intended to defer to state legislative judgments regarding offense severity — the North Carolina legislature now apparently believes that McNeill’s crimes were not all that serious, and federal courts applying the ACCA should respect that judgment.
On the other hand — and the Fourth Circuit seemed to think this was crucial in rejecting McNeill’s arguments — the legislature did not make the reduced penalties retroactively applicable to conduct committed before the effective date of the sentencing reform law. Because McNeill’s convictions were based on things he did before the effective date, he would apparently be subject to the same ten-year maximum even if he was just being prosecuted now for what he did in the 1990’s.
The Supreme Court affirmed McNeill’s ACCA sentence, but adopted a slightly different approach than the Fourth Circuit, holding that the sentencing scheme on the date of the earlier conviction governs without regard even to later retroactive changes in the law.
Justice Thomas, writing for a unanimous Court, treated the question as a simple matter of “plain text”:
The statute requires the court to determine whether a “previous conviction” was for a serious drug offense. The only way to answer this backward-looking question is to consult the law that applied at the time of the conviction.
This is the “only way” to interpret the statute? How can it be that easy when both the Second and the Fourth Circuits interpreted it differently?
The Court further reasoned that its “natural reading of ACCA also avoids the absurd results that would follow from consulting current state law to define a previous offense.” The Court seemed particularly concerned that, under McNeill’s interpretation, a prior conviction might “disappear” for ACCA purposes if a state ”reformulates its criminal statutes in a way that prevents precise translation of the old conviction into the new statutes.”
But “translation” difficulties — deciding which state-law offenses fit into the federal-law definitions of “violent felony” and “serious drug offense” — are endemic to the ACCA regime, and the case law draws arbitrary distinctions all the time between what counts and what doesn’t count. Against the backdrop of a poorly conceived and drafted statute and an incoherent body of precedent, “absurdity” hardly seems an appropriate interpretive criterion.
When we decide that a prior conviction counts as an ACCA predicate, we are functionally punishing the defendant a second time in federal court for the earlier state conviction. In this context, it may be especially appealing to look to the rule of lenity — the principle that statutory ambiguities are resolved in favor of the defendant — as a way to sort out the many uncertainties that arise in applying the ACCA.
Cross posted at the MU Law Faculty Blog.