Reed v. United States

Brief for Amicus Curiae of the National Association of Criminal Defense Lawyers in Support of Petitioner.

Brief filed: 11/30/2022

Documents

Reed v. United States

United States Supreme Court; Case No. 22-336

Argument(s)

The Court has explained “over and over” for more than twenty years that under the Sixth Amendment, “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.” E.g., Mathis v. United States, 579 U.S. 500, 511-20 (2016) (citing, inter alia, Apprendi v. New Jersey, 530 U.S. 466, 490 (2000)). A sentencing court “can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.” Id. at 511-12; see also, e.g., Alleyne v. United States, 570 U.S. 99, 111-12 (2013). Yet in the context of applying the Armed Career Criminal Act’s “occasions” test, the circuits routinely permit sentencing courts to do much more. Specifically, any factfinder conducting the inquiry prescribed in Wooden v. United States, 142 S. Ct. 1063 (2022), must make a series of fine-grained determinations pertaining not just to the elements of a defendant’s prior convictions, but also to the factual circumstances and real-world conduct that gave rise to them. When such findings are made to support an increased maximum penalty (as they indisputably are in this context), they must be made by a jury, on proof beyond a reasonable doubt. “That simple point” has become a “mantra” in this Court’s jurisprudence. Mathis, 579 U.S. at 510. But both before and since Wooden, lower courts conducting the occasions inquiry have routinely ignored it. Despite this Court’s repeated teachings, they routinely sift through “legally extraneous circumstances” to support ACCA enhancements, thus conducting the precise inquiry the Sixth Amendment and this Court’s precedents unambiguously prohibit. Descamps v. United States, 570 U.S. 254, 270 (2013); see also, e.g., Mathis, 579 U.S. at 510.

As Justices Gorsuch and Sotomayor suggested in Wooden, 142 S. Ct. at 1079, 1082-87, the time has come for the Court to reestablish the controlling force of its decisions. The courts of appeals have “missed more than a few * * * clear signs” that their current approach to the occasions inquiry is unconstitutional, United States v. Perry, 908 F.3d 1126, 1135 (8th Cir. 2018) (Stras, J., concurring) (citing, inter alia, Mathis, 579 U.S. at 510-11, Descamps, 570 U.S. at 268-69, and Alleyne, 570 U.S. at 111 n.1), and, despite the existence of at least five unambiguously correct separate opinions addressing the issue,  there is no indication that any lower court will change its approach unless and until this Court intervenes. The error on which the decision below (along with many others like it) depends will thus persist until the Court reaffirms its Sixth Amendment “mantra,” Mathis, 579 U.S. at 510, yet again. The Court should grant certiorari and do so. 

Author(s)

Jeffrey T. Green, David Oscar Markus, NACDL, Washington, DC; Peter B. Siegal, David T. Kearns, Norton Rose Fulbright US LLP, Washington, DC.

Explore keywords to find information

RECENTLY ADDED & UPCOMING

  1. The Champion
    /Nacdl/media/image_library/StayInformed/Champion/ChampionCovers/March-April-2025.jpg?ext=.jpg

    March/April 2025

    What are the evidentiary implications of field sobriety tests in marijuana cases? Does the odor of marijuana give officers probable cause to search a vehicle?

  2. Amicus Brief
    /Nacdl/media/image_library/Elements/global/amicus.png

    Jenner & Block LLP v. U.S. Department of Justice

    Brief of the National Association of Criminal Defense Lawyers and New York Council of Defense Lawyers as Amici Curiae in Support of Plaintiff’s Motion for Summary Judgment.

  3. News Release
    /Nacdl/media/image_library/Elements/global/newsrelease.png

    News Release ~ Law Enforcement Executive Order

    NACDL Warns Executive Order's Dangerous Overreach Undermines Community Safety and Trust in Police – Washington, DC (April 29, 2025) – The National Association of Criminal Defense Lawyers (NACDL) expressed deep concern regarding the Executive Order titled "Strengthening and Unleashing America’s Law Enforcement to Pursue Criminals and Protect Innocent Citizens," cautioning that several of its proposals represent a dangerous overreach that undermines these goals by jeopardizing individual rights and the legitimacy of law enforcement in the eyes of the community.

  4. Event
    /Nacdl/media/image_library/Learn/nacdlcleinstitute/2025_Post-Dobbs_Trial_Tactics_2025-02-26_v02_Event-Listing_2.jpg?ext=.jpg

    Trial Tactics for Pregnancy-Related Cases: Skills for Every Defender

    LOCATION: The University of Texas School of Law, Austin, TX
    DATE: May 16-17, 2025
    COST: FREE (registration is required)
    CLE Credit: Up to 14.5 credits 

  5. Webinar
    /assets/img/nacdl_og.png

    Collaborative Approaches to Appellate Defense: Recognizing Clients' Legal Expertise

    WHEN: Thursday, May 8, 3:00-4:30pm ET / 12:00-1:30pm PT
    CLE CREDIT: not available
    COST: Free

Featured Products