Achyut Phadke, a student in the Supreme Court Litigation Clinic at Stanford Law School, wrote the following preview of Tuesday’s argument for SCOTUSwiki. Additional links and information are available on the Rodriquez wiki page, here.

Petitioner's Brief

The United States expands on its argument from the cert. stage that when state law allows for a heightened maximum sentence for recidivists, the "maximum term of imprisonment" for recidivist offenders is the heightened penalty for recidivists, rather than the maximum penalty for non-recidivists set forth in the state statute governing primary conduct.

It argues that for general recidivist enhancements such as Washington's, recidivism is not an element of the drug-trafficking offense. Instead, the recidivism enhancement "establish[es] [an] alternative maximum ter[m] of imprisonment for the" particular drug offense. The United States criticizes the court of appeals for apparently concluding that "there can be only one "maximum term of imprisonment' for any given offense." It maintains that the text of the ACCA does not support such a reading, and adds that "it would be incongruous for Congress to ignore the possibility" of recidivist sentencing enhancements given that the ACCA is itself a statute that imposes higher penalties on groups of recidivists. The United States again cites LaBonte in support of its position that "a statute may establish alternative maximum terms of imprisonment for recidivists and non-recidivists who commit a single offense." It adds that, even if under the ACCA there can be only one "maximum term of imprisonment" for a particular offense, that maximum term should be the maximum term for repeat offenders since that would "literally" be the maximum penalty for the offense. Recognizing that this would be an "extreme" alternative, the United States concludes that in any event the Court need not embrace this extreme rule because the ACCA "accommodates the possibility of alternative "maximum terms of imprisonment'" for first-time and repeat offenders.

The United States also expands on its argument regarding why the Ninth Circuit erred in the decision below. It points out that the Ninth Circuit's holding would mean that the "maximum term of imprisonment" could in some cases be shorter than the sentence that the defendant actually received. It asserts that the Ninth Circuit's decision depends on allocating a portion of the sentence to the "offense" and a portion of the sentence to the defendant's recidivism. Such an allocation, it avers, "would be irreconcilable with this Court's cases," which state that a recidivist enhancement is not a separate punishment from the underlying offense but rather constitutes a "stiffened penalty" for the underlying offense.

The United States again repeats its cert-stage argument that the court of appeals erred in relying on Taylor. That case presented the question of whether a state-law offense sufficed as an ACCA predicate, and held that the ACCA analysis required the sentencing court to consider only the elements of the underlying offense and not any facts particular to the case at hand. Because this case "involves the distinct question of how to define the relevant "maximum term of imprisonment' for such an offense," Taylor's "modified categorical approach" does not apply. Even if it did, however, just as under Taylor the sentencing court could look at judicial records to establish whether the defendant had been convicted of ACCA predicate offenses, here the court could resort to judicial records to determine what the maximum term of imprisonment was for the previous offenses.

The United States further reiterates its cert-stage argument against the respondent's reliance on Almendarez-Torres and Apprendi, arguing that those cases "stand for the propositions that, as a matter of constitutional law, recidivism need not be treated as an offense element." As such, a state "may constitutionally choose to treat recidivism as a sentencing enhancement that a court can take into account without submission to the jury." The United States also addresses the respondent's cert-stage assertion that the government's position is "internally inconsistent" because it recognizes the possibility of different statutory maximums for recidivists and non-recidivists as "maximum terms of imprisonment" but overlooks lower maximums set forth by applicable sentencing guidelines in the State of Washington. The United States argues that the ACCA and related statutes indicate that "maximum term" means the term prescribed by the applicable statutes governing primary conduct, as opposed to terms set forth in applicable sentencing guidelines. It also insists that Blakely v. Washington (2004) uses the phrase "statutory maximum" in a different sense than the ACCA does, defining the phrase for Apprendi purposes as "the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." The United States asserts that Congress in passing the ACCA in its current form neither anticipated the use of the phrase "statutory maximum for Apprendi purposes" in Blakely nor believed that determinations of guidelines terms would affect the ACCA analysis of the maximum term of imprisonment to which a defendant was subject. The United States concludes by warning of the adverse consequences that affirmance will have for the administration of the ACCA, which will no longer apply to many recidivist offenders, and also to other federal statutes which impose more severe sanctions for individuals who have been previously convicted of "crimes punishable by imprisonment" for more than a particular term of years.

Respondent's Brief

Elaborating on his cert-stage argument, Rodriquez argues that the plain language and underlying policy of the ACCA require a court "to look to the penalty assigned by the legislature to a conviction for engaging in conduct constituting the elements of the offense." He characterizes the ACCA as being focused on "serious" or "violent" offenses, and argues that applicable state sentencing enhancements for recidivists "say[] nothing about" the seriousness of the offense in question. Rather, Rodriquez asserts, the focus is properly on the acts constituting the particular offense and the penalty prescribed for that offense. Because recidivism is not typically an element of an offense (and is not so in this case), the recidivist enhancement is not factored into the ACCA analysis.

Rodriquez again finds support for his position in the "categorical" approach used for ACCA analyses in Taylor and James, an approach that focuses solely on the elements of an offense to determine whether the offense qualifies as a predicate violent felony under the ACCA. He repeatedly emphasizes that the government's position "“ viz., that whether an offense qualifies as an ACCA predicate offense "depending on who commits" the offense "“ cuts squarely against the text and purpose of the ACCA, which focus on the severe nature of the offense rather than the identity of the offender. He contrasts the ACCA's focus on the nature of the offense with other statutes' focus on the identity of the offender, such as the statute in question in LaBonte (28 U.S.C. 994(h)), and asserts that, had Congress wished to focus on the identities of offenders in the ACCA (as opposed to the seriousness of the offense), it could have done so.

Addressing the government's position that as a recidivist statute, the ACCA contemplates incorporating recidivist enhancements in calculating the maximum term, Rodriquez dismisses the argument as a form of "perverse bootstrapping" by which a defendant becomes a recidivist subject to the ACCA merely because he is treated as a recidivist under state law.

Rodriquez further criticizes the government's approach as unworkable, explaining that it requires a "complex and confusing inquiry" to determine the maximum term of imprisonment. Under the government's approach, he maintains, federal courts will frequently be called on to resolve unsettled issues of state law and complex factual inquiries about the applicable sentences for particular offenses in the defendant's past criminal history. Moreover, use of past court records may involve reliance on state court judicial findings resolving disputed facts. He argues that this reliance on judicial findings will pose a constitutional problem because Shepard held that the Sixth and Fourteenth Amendments required that any disputed facts "essential to increase the ceiling of a potential sentence" be found by a jury. Rodriquez also avers that the government's rule will undermine state procedural rules that control the application of recidivist enhancements, as well as the exercise of prosecutorial discretion in not to seek such enhancements.

Rodriquez further contends that the government's rule presents no principled basis for distinguishing between applicable recidivist enhancements, which the United States would count as the maximum term of imprisonment, and maximum penalties possible under applicable state sentencing guidelines, which the United States would not count as the maximum term of imprisonment. Under the sentencing guidelines then in effect in Washington, Rodriquez could not have been sentenced to more than 57 months in prison. In Rodriquez's view, "both pre- and post-Blakely, binding guidelines" such as those that applied to his case, "set the sentence for which the defendant was "eligible'; under the government's test, this is what matters." He maintains that "the government's insistence [that such guidelines] do not affect the maximum sentence under the ACCA "“ but that recidivist enhancements do "“ powerfully demonstrates that its approach lacks any grounding in law or principle."

Rodriguez concludes by arguing that the changes to state sentencing guidelines since the ACCA was enacted "“ namely, the increase in recidivist enhancements under state law "“ suggest that to the extent the correct interpretation of the ACCA is "unclear," the Court should follow the rule of lenity and rule in favor of the defendant. Because it is not clear whether Congress ever intended to apply the ACCA to such state recidivist enhancements, any ambiguity in the ACCA "should be resolved by Congress."

Posted in US v. Rodriquez, Uncategorized