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

Argument: 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. 

Letter to the U.S. Sentencing Commission regarding the economic crime package and other proposed amendments.

Brief For Amicus Curiae The National Association Of Criminal Defense Lawyers In Support Of Petitioner.

Argument: The Armed Career Criminal Act’s “occasions” requirement has led to a deluge of unconstitutional factfinding by sentencing courts. The Supreme Court has repeatedly made clear that under the Sixth Amendment, only a jury—not a judge—may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. But in analyzing whether a defendant’s three predicate offenses occurred on “occasions different from one another,” as they must have to support a penalty under the statute, lower courts around the country routinely make detailed factual findings regarding the timing, location, and conduct underlying each prior conviction, with no apparent jury involvement. The Supreme Court has repeatedly made clear in other statutory contexts that such findings are unconstitutional. Because there is no reason why the Sixth Amendment would apply any differently to the “occasions” requirement, it is likely that every sentence imposed under the Armed Career Criminal Act has been imposed unconstitutionally.

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

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.

Brief of Amici Curiae Defense Organizations in Support of Defendant-Appellee and Affirmance.

Argument: New York First Degree Manslaughter is not an ACCA Predicate. New York First Degree Manslaughter is not a predicate under the career offender guidelines.

Brief for National Association of Criminal Defense Lawyers, National Association of Federal Defenders, Families Against Mandatory Minimums, and Cato Institute as Amici Curiae in Support of Petitioner.

Argument: Despite this Court’s repeated efforts to divine a workable standard from the vague wording of ACCA’s residual clause, numerous circuit splits persist or have even deepened. The residual clause is unconstitutionally vague as to all possible predicates. ACCA’s imposition of a substantial, mandatory minimum sentence warrants heightened scrutiny. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers in support of Petitioner.

Argument: Under the Rule of Lenity, ambiguities in the prohibitions imposed by criminal statutes are construed in favor of the defendant to foster fairness and uniformity in the administration of the criminal justice system. The Rule of Lenity precludes application of the physical force element of the ACCA to the conduct – battery involving de minimis physical conduct – in this case.

NACDL amicus curiae brief in support of respondent.

Argument: The ACCA’s focus on the particular “offense” for which a defendant was previously convicted dictates that the top of the state’s standard sentencing range for that offense is the statutory maximum for that offense. 

Amicus curiae brief of the National Association of Criminal Defense Lawyers (NACDL) and Families Against Mandatory Minimums (FAMM).

Argument: The Armed Career Criminal Act (ACCA) applies to a person who “violates [18 U.S.C.] section 922(g)” and “has three previous convictions . . . for a violent felony or a serious drug offense.” 18 U.S.C. §924(e)(1). A “serious drug offense” is defined in relevant part as “an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” The Fourth Circuit Cour of Appeals affirmed the district court’s classification of petitioner’s North Carolina drug offenses as “serious drug offenses” under the ACCA, even though at the time of petitioner’s federal sentencing, North Carolina’s current sentencing law did not prescribe a maximum term of imprisonment of at least 10 years for those drug offenses.

The text and structure of the ACCA require consideration of the “seriousness” of a drug offense at the time of the federal firearms violation; the government’s rule would create unnecessary complexity and uncertainty.

Amicus curiae brief of the National Association of Criminal Defense Lawyers and the National Association of Federal Defenders in support of Petitioner.

Argument:  The Ninth Circuit construed the Supreme Court’s Modified Categorical Approach to permit a dramatic exception to the Categorical Approach’s limited elements-based inquiry, but the Modified Categorical Approach does not apply to missing-element statutes. Applying the Modified Categorical Approach to missing-element statutes would render the ACCA unconstitutional in many applications and poses significant practical difficulties and risks manifest unfairness. If there is no way to distinguish among applications of the Modified Categorical Approach, it should be abandoned, not expanded.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers as Amicus Curiae In Support of Petitioner

Argument: Congress’s definition of burglary as surreptitiously remaining embodies a contemporaneous intent requirement. Eliminating burglary’s contemporaneous intent requirement would violate the principles of due process and separation of powers underlying the rule of lenity.

Brief of FAMM and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari)

Argument: The question that has divided the circuits is of critical importance to thousands of federal prisoners. The decision below gravely misreads the federal post-conviction relief statute. The Eighth Circuit’s rule contradicts the plain text of § 2244. The Eighth Circuit’s rule leads to arbitrary results. The severity of the consequences to petitioner and many others similarly situated – and the disutility of their sentences to society – underline the urgency of granting review.

Brief of the National Association of Federal Defenders and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner. 

Argument: Shepherd documents are not reliable indicators of whether a particular statutory alternative is a "means" or an "element." State law is a reliable and accessible indicator of statutory divisibility. In the rare case where state law is inconclusive, courts must apply a presumption of indivisibility.

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

Argument: The Armed Career Criminal Act (ACCA) applies only to violent robberies. Because the use of violent force is not an element of robbery under Florida law, Florida robbery is not a “violent felony” under the ACCA. The Act’s legislative history, like its text, reflects Congress’s intent to target only violent robbery in ACCA. The government’s proposed focus on whether the facts of particular cases present some potential risk of slight injury would impermissibly expand the reach of the Elements Clause beyond its text. 
 

Brief of National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Respondents

Argument: When the ACCA was enacted in 1984 and amended in 1986, the majority of states’ burglary statutes distinguished between structures and both temporary spaces and mobile vehicles. The government’s position that there was a “broad consensus” in 1986 that burglary covered temporary spaces or mobile vehicles adapted or used for overnight accommodation ignores fundamental differences among the 1986 state statutes. The addition of temporary spaces and mobile vehicles adapted for overnight accommodation to the generic definition of burglary fails to close the purported “gap” between the ACCA and state-law definitions of burglary, as numerous state burglary statutes would remain overbroad. The ACCA is properly focused on form, rather than function, in delineating those spaces encompassed by generic burglary.