More on Last Week’s Grants in No. 06-11543 Begay v. United States and No. 06-1646 United States v. Rodriquez
The following entry was written by Achyut Phadke, a student in the Supreme Court Litigation Clinic at Stanford Law School.
Last Tuesday, the Court granted certiorari in two cases that will examine the range of predicate convictions that qualify a person for elevated sentences under the Armed Career Criminal Act of 1984 (the “ACCA”). The ACCA imposes a minimum 15 year sentence, and authorizes a term of life imprisonment, for a person convicted of being a felon in possession of a firearm if that person has been previously convicted on three separate occasions for a “violent felony” or “serious drug offense.” The act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” This last clause is referred to as the “otherwise” or “residual” clause. The ACCA also defines “serious drug offense” to include offenses under state law “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.”
Begay v. United States asks whether a felony conviction for driving while intoxicated counts as a “violent felony” under the ACCA. The petitioner, Larry Begay, pleaded guilty in district court to one count of being a felon in possession. The government argued for an ACCA sentencing enhancement, offering three of Begay’s prior felony DWI convictions as predicate “violent felonies.” The district court granted the enhancement, holding that DWI fell under the residual clause, and raised Begay’s sentence to 188 months from the guidelines range of 41 to 51 months. The Tenth Circuit affirmed the enhancement, with Judge McConnell filing a dissent that argued that the tools of statutory construction supported a reading of the ACCA that excluded DWI convictions from counting as violent felonies.
In his petition for certiorari, Begay emphasized both the steep sentencing elevation that results when DWI is treated as a violent felony and the broad effect of such a ruling by the Court. All but three states have adopted felony DWI statutes and numerous circuits have either been faced with this question or with persons whose sentences were enhanced by virtue of sentencing guideline career offender provisions due to prior felony DWI convictions. Begay argued that the language, purpose and statutory history of the ACCA – as well as principles of statutory interpretation (ejusdem generis, noscitur a sociis, and the rule against surplus language) – support a reading that limits the residual clause to crimes that are similar to the crimes enumerated in the definition. He argues that the residual clause should be limited to crimes “that involve the possibility of more closely related, active violence,” relying for this characterization on the Court’s definition of “crimes of violence” in Leocal v Ashcroft (2004), which it took from then-Circuit Judge Breyer’s discussion of the ACCA residual clause in United States v. Doe (1st Cir, 1992). Since DWI is not such a crime, Begay asserts, it does not fall under the residual exception.
In its brief in opposition, the United States argued that the Court’s analysis last term in James v. United States (2007) rules out Begay’s arguments. The United States notes that in James, the criminal defendant had argued, based on ejusdem generis, that attempted burglary could not be included in the definition of “violent felony” because none of the enumerated crimes in the definition of violent felony were an attempt crime. The Court resisted such a limited reading. The United States adds that, in James, the Court rejected the defendant’s argument that the residual clause be limited to crimes that present “confrontational risk.” Rather, the Court looked to the elements of the attempted burglary offense to determine if it posed a serious potential risk of physical injury, and found that it did, thereby qualifying as a violent felony. The United States distinguishes Leocal because it involves a different statute and definition and dismisses United States v. Doe as merely dicta.
The other ACCA case, United States v. Rodriquez, asks whether a court, in determining whether a prior state drug conviction prescribed a sufficiently long maximum sentence to count as a “serious drug offense” under the ACCA, can look only at the maximum sentence named in the particular state drug statute or has to take into account a sentencing enhancement applicable to the case under a state recidivism statute.
After a jury trial, petitioner Gino Rodriquez was convicted of being a felon in possession of a firearm. The government sought to apply the ACCA enhancement, citeing as predicate offenses two convictions for burglary and a felony drug conviction under Washington state law. The particular drug statute under which Rodriquez was convicted lists a maximum sentence of five years, but an applicable recidivism statute for drug offenses permits doubling the sentence for a second or subsequent offense. Rodriquez had been convicted under that particular drug statute on three occasions, although the state of Washington had never applied the recidivism enhancement to increase his sentences. Nevertheless, the government argued in district court that because the applicable maximum sentence was 10 years for second and third drug offenses, one of those convictions counted as a “serious drug offense” under the ACCA.
The district court found the ACCA inapplicable, sentencing Rodriquez to 92 months of imprisonment followed by three years’ supervised release. The Ninth Circuit affirmed. It reasoned that the Washington recidivism enhancement did not factor in the ACCA analysis because the Supreme Court, in Taylor v. United States (1990), had declared that a court deciding sentencing enhancements “must consider the sentence available for the crime itself, without considering separate recidivist sentencing enhancements.” To hold otherwise, the Ninth Circuit argued, would be to make the offense and the recidivist enhancement “coterminous,” a result foreclosed by Apprendi v. New Jersey (2000), which stated that “recidivism does not relate to the commission of the offense.”
In its petition for certiorari, the United States argued that “a recidivist enhancement does not impose additional punishment for the prior crime,” but rather “is a stiffened penalty for the later crime, which is considered to be an aggravated offense because a repetitive one.” It asserts that Taylor requires a court to look at the elements of the applicable statute alone only when determining whether a crime qualifies as a “violent felony”; a court determining whether an offense is a “serious drug offense” is not required only to look at the statutory penalty without considering applicable recidivist enhancements.
The United States added that United States v. Labonte (1997) provides further support. There, the Supreme Court held that the Sentencing Commission erred when, applying a statute that required the Commission to provide sentences close to the maximum for certain recidivist offenders, it did not include applicable recidivism enhancements in its calculation of “maximum term.” The United States also argues that Apprendi, if anything, helps the government’s case, since the Court held there that only facts other than recidivism that increase a sentence are subject to independent Fifth and Sixth amendment procedural requirements. Finally, the United States argued that the Seventh Circuit and First Circuit directly with the decision below, which is in tension with decisions of Fourth Circuit and Fifth Circuit rules also.
Rodriquez disputed the existence of a circuit split, arguing that the Seventh Circuit was never squarely presented with this question, and that the decisions of the other circuits are distinguishable. Rodriquez also argues that the government’s rule acts as a “vague, one-way ratchet”: the particular facts of a case can be considered if they trigger a generally applicable recidivist sentencing enhancement but cannot be considered if they trigger a generally applicable law that decreases the sentence. Rodriquez asserts that such a rule does not comport with the legislative history, which indicates that Congress intended for the analysis of “serious drug offense” to occur without view to the particular facts of a case. Consequently, Rodriquez argued that Taylor‘s directive to “look only to the statutory definitions of the prior offenses, and not to the facts underlying the prior convictions” applies here. Rodriquez cited additional support in Blakely and Apprendi‘s view that the term “statutory maximum” refers to the maximum sentence applicable “solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.”