Justices Asked to Parse Accelerated Sentencing Guidelines

WASHINGTON — The Supreme Court returned to the bench for its December session on Monday, considering a pair of cases whose outcome could have sweeping consequences for the sentencing of recidivist offenders charged with federal crimes.

The cases, which were consolidated for the sake of oral argument, involve Rashaad Brown and Eugene Jackson, both of whom are convicted drug dealers who were later prosecuted for gun possession.

Both were sentenced to 15 years in prison, the mandatory minimum under the Armed Career Criminal Act, and are challenging its provisions under very different interpretations of the law. 

When Congress enacted the act in 1984, its intention was to give longer sentences to individuals who are deemed to be dangerous to society based on their prior convictions involving violent behavior or a serious drug offense.

Under the law, felons hit with firearm charges are subject to a maximum 10-year sentence. But a defendant who has at least three serious drug offenses or violent felony convictions meets the threshold for the 15-year mandatory minimum.

In Jackson’s case, the 11th U.S. Circuit Court of Appeals held that the ACCA incorporates the federal controlled substance list schedules that were in effect at the time of the prior state drug conviction.

In Brown’s case, the 3rd U.S. Circuit Court of Appeals joined the 8th and 10th Circuits in holding that the ACCA incorporates the controlled substance list schedules that were in effect at the time of the federal firearm offense. 

Another federal appeals court, the 4th U.S. Circuit Court of Appeals, has held the ACCA incorporates the controlled substance list schedules in effect at the time of sentencing for the federal firearm offense.

The federal government, which was represented by Austin Raynor of the U.S. solicitor general’s office, contends the 11th Circuit has it right.

But the attorneys for Brown and Jackson, Jeffrey Green and Andrew Lee Adler, respectively, disagree, maintaining that the ACCA incorporates the controlled substance list in effect either at the time of the federal gun offense or when the defendant is sentenced for the federal gun offense.

The court’s ruling could have huge implications for criminal courts and those that appear before them because there are multiple recidivist statutes sprinkled throughout the U.S. Code that share similarities with the ACCA’s provision — 18 U.S.C. § 924(e) — relating to prior serious drug offenses.

The implications are also stark for Brown and Jackson. If either had been convicted in the 4th Circuit, neither would have been sentenced as armed career criminals.

If the justices ultimately adopt Brown’s time-of-federal-sentencing approach, which is the same as the 4th Circuit’s approach, both will be resentenced and have five years removed from their time behind bars.

If the court adopts Jackson’s time-of-federal-offense rule, only he would be resentenced to a maximum 10 years in prison.

If the government’s time-of-state-conviction prevails, Brown and Jackson’s current sentences will stand.

Arguing for the government, Raynor said its rule “flows from the ACCA’s text.”

“That language dictates a backward-looking inquiry that requires courts to assess the attributes of a prior conviction at the time that it occurred,” he said. 

But he also clarified that were the ACCA to include a static list of banned drugs, rather than referencing the Controlled Substances Act, as it does currently, courts should look at the law in effect at the time of the federal gun offense.

Justice Sonia Sotomayor said in her view, such a position is untenable and smacks of effectively “picking and choosing” what standard courts want to apply on a case by case basis.

“This is the most serious weakness in your argument,” she said. “It doesn’t make much sense to me.”

Justice Elena Kagan was left similarly in the dark by Raynor’s position.

“Your whole argument rests on treating differently a list of five substances or any other attribute of ACCA, treating it differently from a controlled substance as defined in Section 102,” she said.

“That seems a little bit mysterious to me.”

Justice Ketanji Brown Jackson, a former federal public defender, noted how serious drug offenses are defined as moving targets because Congress often removes substances from the list, making their possession perfectly legal.

“Why would Congress want to incapacitate defendants who have committed crimes that federal law no longer regards as serious?” she asked.

But Raynor insisted even in cases where a substance or substances were removed from the list, it still makes sense to consider what was in place at the time that the federal gun offense occurred.

“Why? We’re doing sentencing today,” Justice Jackson said.

“Why does the seriousness or the label or the perception of the past as to what he did matter [if the schedule has been changed in the interim between arrest and sentencing]? Why wouldn’t the criteria for determining that be what we think about his prior crimes today?” the justice wanted to know.

Raynor pushed back, arguing that a person’s conduct when they committed their crime is an indication of “his willingness to disregard the law.”

Arguing on behalf of Brown, attorney Jeffrey Green said at its core, “the ACCA is a sentencing enhancement. … [And] this court has said that the ordinary practice is to apply current law, including at sentencing, [and] there is no reason to deviate from that ordinary practice here.”

A decision in the case is expected by late June 2024.

Dan can be reached at [email protected] and @DanMcCue