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U.S. Supreme Court debates Armed Career Criminal Act

By Kimberly Atkins
Dolan Media

The justices of the U.S. Supreme Court are pondering whether the Armed Career Criminal Act applies to a felon in possession of a firearm even after the penalty for one of the defendant’s triggering “serious drug offense” crimes has been reduced. And the answer, to quote former President Bill Clinton, “depends on what the meaning of the word ‘is’ is.”

Clifton Terrell McNeill, the defendant in McNeill v. U.S., pleaded guilty to unlawful possession of a gun and possession with intent to distribute cocaine. A U.S. District Court determined that he was an armed career criminal and increased his sentence by more than four years from the term indicated by the federal sentencing guidelines.

McNeill had two prior cocaine convictions under state law, received when the maximum sentence was 10 years. North Carolina later amended its sentencing laws to change the sentence for that offense to 25 months, but specified that the change would not be applied retroactively.

The ACCA defines a “serious drug offense” as an offense under state law involving drug crimes “for which a maximum term of imprisonment of ten years or more is prescribed by law.”

The district court and the 4th Circuit rejected McNeill’s argument — relying heavily on the present tense of the word “is” in the wording of the statute — that in order to qualify as a “serious drug offense” under the Act, the state offense must carry a maximum penalty of at least 10 years at the time of federal sentencing.

The U.S. Supreme Court agreed to hear the case.

‘The words of the statute matter’

Raleigh, N.C.-based federal public defender Stephen Gordon urged the Court to focus on the present tense of the statute’s wording and hold that the ACCA only applies to state law “presently in effect in the state.”

“When this Court construes a statute, the words of the statute matter, the purpose of the statute matters and the results produced by that construction matter,” Gordon said.

Justice Sonia Sotomayor pointed out that, under that theory, past misdemeanors that are later elevated to felonies would trigger the ACCA in cases where they wouldn’t have in the past.

“What logic do you think there is in that?” Sotomayor asked.

“Looking to … what his status is at that time under the law we think makes sense and is consonant with the purpose of what [the] ACCA is trying to do,” Gordon said.

Justice Antonin Scalia, pointing out that the state law change was not retroactive, wondered what difference the verb tense in the statute made at all.

“I don’t see why your argument requires us to ask what would be the term if he had committed the offense at a later date,” Scalia said. “The maximum term for his offense when he committed it is those years because the state didn’t retroactively reduce his sentence.”

Gordon said that pointed to the fundamental purpose of the law.

“[If] we have two individuals who commit a [similar] offense and they have similar records, but they sustain their state convictions on different days, do we want [to] distinguish them?” Gordon asked.

Curtis Gannon, assistant to the solicitor general, used only a fraction of his allotted argument time to urge the Court to affirm the lower court.

“The sentencing court should consider the offense and the punishment as they were defined by the body of law under which the defendant was convicted and sentenced,” Gannon said during his roughly 10-minute argument.

“What if the [state] legislature decreases the penalty [after coming] to the conclusion that this really is not nearly as serious as we previously thought?” asked Justice Samuel Alito, Jr. “Why should the prior judgment about the severity of the offense be taken into account under [the] ACCA?”

A state “could make the decreased maximum term of imprisonment retroactively applicable,” but did not choose to do so here, Gannon pointed out. “The state has not repudiated the judgment that these were serious offenses.”

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