Descamps v. United States

Issues

1. Whether the Ninth Circuit can find a missing element to be satisfied by using a modified categorical approach.
2. Whether imposition of the Armed Career Criminal Act should require a separate indictment and trial.
3. Whether the Ninth Circuit’s application of the modified categorical approach was a deviation from Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).

 

Matthew Descamps was sentenced to 262 months in prison after the Ninth Circuit found that he had committed his third violent felony, in violation of the Armed Career Criminal Act (ACCA). The contested violent felony was a 1978 conviction for burglary of a California grocery store. Under the California burglary statute, one can be convicted of burglary without an explicit finding that entry into the burgled premises was itself unlawful.  The element of unlawful entry is required under the generic burglary statute described in the ACCA. The Ninth Circuit found the “unlawful entry” element to be necessarily satisfied by the plea bargain agreed to by Descamps, thus subjecting him to the mandatory fifteen-year minimum prison sentence required under the ACCA. How the Supreme Court decides this case will determine how sentencing courts use factual assertions surrounding a prior conviction in situations where a violent crime as defined under the ACCA contains elements absent from the crime for which the defendant was convicted.

Questions as Framed for the Court by the Parties

1. Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.

2. Whether is it time for this Court to overrule Almandez-Torres v. United States, 523 U.S. 224 (1998), apply Apprendi v. New Jersey, 530 U.S. 224 (2000), and require an Indictment and trial on the issue of application of the Armed Career Criminal Act.

3. Whether the Ninth Circuit's ruling in the instant case was in derogation of the requirements in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).

Petitioner Matthew Descamps was arrested on March 25, 2005 in Stevens County, Washington. See Brief for Respondent, United States at 2–3. Officers from the Stevens County Sheriff’s Department responded after receiving an emergency call that a handgun had been fired. See 

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DePierre v. United States

Issues

Whether Congress’s intention, in enacting the Anti-Drug Abuse Act of 1986, to target users of crack cocaine should limit the scope of the term “cocaine base” or whether the term should be given its ordinary chemical definition.

 

Reacting to the growing concern over “crack” cocaine, Congress passed the Anti-Drug Abuse Act of 1986 (ADAA), part of which imposes a 10-year mandatory minimum prison sentence for offenses involving either 5 kilograms or more of powder cocaine or coca leaves, or “50 grams or more of a substance…which contains a cocaine base.” Petitioner Frantz DePierre sold 55.1 grams of drugs to a police informant and received a sentence of 10 years in prison for distributing 50 grams or more of “cocaine base.” The court of appeals affirmed the sentence, holding that the term “cocaine base” covers all base forms of cocaine, including but not limited to crack. DePierre argues that in light of the purpose and language of the statute, “cocaine base” applies only to crack cocaine, while the United States claims that interpreting the ADAA to include all chemically-classified “base” forms of cocaine is consistent with the ADAA as a whole. The Supreme Court’s  decision in this case will resolve a circuit split by establishing the scope of “cocaine base” and will ultimately determine the mandatory minimum sentence lengths for offenses involving non-crack cocaine.

Questions as Framed for the Court by the Parties

Section 841(b)(1)(A) of Title 21 requires the imposition of a ten-year mandatory minimum sentence upon persons who engage in a drug-related offense involving either (a) five kilograms or more of "coca leaves" or "cocaine," or (b) fifty grams (.05 kilograms) or more of those substances, or of a mixture of those substances, "which contain[] cocaine base."

The question presented is whether the term "cocaine base" encompasses every form of cocaine that is classified chemically as a base - which would mean that the ten-year mandatory minimum applies to an offense involving 50 grams or more of raw coca leaves or of the paste derived from coca leaves, but that 5000 grams of cocaine powder would be required to trigger the same ten-year minimum - or whether the term "cocaine base" is limited to "crack" cocaine.

Sentencing under the Anti-Drug Abuse Act of 1986

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Additional Resources

· National Drug Intelligence Center: Crack Cocaine Fast Facts

· National Institute on Drug Abuse: Cocaine

· Drug Watch International, David Risley: Mandatory Minimum Sentences – An Overview

· RAND Corporation: Are Mandatory Minimum Drug Sentences Cost-Effective?

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Department of Revenue of Kentucky v. Davis

Issues

Does Kentucky’s tax policy of taxing income bonds issued by sister states but exempting from taxation bonds issued by Kentucky violate the dormant Commerce Clause of the United States Constitution?

 

Currently, Kentucky taxes interest income earned by holders of out-of-state municipal bonds but does not tax interest income earned by holders of in-state municipal bonds. Catherine and George Davis, Kentucky taxpayers and owners of out-of-state bonds, argue that Kentucky’s tax policy violates the Commerce Clause of the United States Constitution by interfering with interstate commerce. Kentucky argues, in response, that it is free to set the economic terms of the bonds it sells, and that its policy represents a legitimate balance between its desire to encourage investment in local public infrastructure and its need to raise tax revenue. The Kentucky Court of Appeals agreed with the Davises and found Kentucky’s tax scheme unconstitutional. The Supreme Court’s decision in this case will impact the validity of similar tax schemes in at least 41 other states. A ruling in the Davises’ favor would eliminate tax considerations in an investor’s decision between bonds issued by the investor’s State and bonds issued by another State, arguably benefiting all states by eliminating inefficient market segmentation. On the other hand, a ruling in Kentucky’s favor would prevent a disruptive change in the status quo, which would permit states to exercise greater discretion as they strike a balance between economic development and revenue collection.

Questions as Framed for the Court by the Parties

Whether Kentucky’s income tax scheme violates the Commerce Clause of the United States Constitution in its negative, or dormant, aspect by exempting from taxation interest income on bonds issued by Kentucky and its local governmental subdivisions while taxing interest income on bonds issued by other States and local governmental subdivisions.

The Commonwealth of Kentucky (“Kentucky”) taxes interest income on state and local bonds of sister states but does not tax interest income derived from municipal bonds issued by Kentucky or its political subdivisions. Davis v. Dep’t of Revenue of the Fin. and Admin. Cabinet of Ky., 197 S.W.3d 557, 560 (Ky. Ct. App. 2006). In April 2003, Catherine and George Davis (“the Davises”) filed a class action suit alleging Kentucky’s tax scheme was invalid under the Commerce Clause of the United States Constitution. Id. at 557, 560.

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Decker, et al., v. Northwest Environmental Defense Center,Georgia-Pacific West, et al., v. Northwest Environmental Defense Center

Issues

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the National Pollutant Discharge Elimination System permit requirement.

If a citizen's lawsuit is permissible, what level of deference, if any, should be given to the EPA’s interpretation of the Clean Water Act and the NPDES permit requirements with respect to the logging industry.

 

The Environmental Protection Agency ("EPA") has interpreted the Clean Water Act ("CWA") in such a way so that certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center ("NEDC") brought a citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability of federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s ("EPA") rules implementing the Clean Water Act’s ("CWA") National Pollutant Discharge Elimination System ("NPDES") permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to the EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. The EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater? 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER 

Since passage of the Clean Water Act, the Environmental Protection Agency ("EPA") has considered runoff of rain from forest roads--whether channeled or not--to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The Ninth Circuit--in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to the EPA--rejected the EPA’s longstanding interpretation. Instead, it directed the EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:

Whether the Ninth Circuit should have deferred to the EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that the EPA regulate such runoff as industrial stormwater subject to NPDES.

The Clean Water Act (“CWA”) prohibits the discharge of pollutants from a point source into the navigable waters of the United States without a National Pollutant Discharge Elimination System (“NPDES”) permit. The Act defines a “point source” as “any discernible, confined and discrete conveyance.” 33 U.S.C.

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Dean v. United States

Issues

Does a federal law imposing a ten-year minimum additional sentence on a defendant who fired a gun during a violent crime apply even if the firing was an accident?

 

Petitioner Christopher Michael Dean was convicted for a bank robbery in which he fired, probably by accident, a pistol. In addition to his sentence for the bank robbery, Dean was sentenced under 18 U.S.C. § 924(c)(1)(A)(iii), which imposes a ten-year mandatory minimum sentence for the discharge of a firearm during a violent crime. The question presented to the Supreme Court is whether courts can apply the sentence enhancement under § 924(c)(1)(A)(iii) if the discharge was accidental, or whether prosecutors must first prove that the defendant intended to fire the gun. Dean argues that prosecutors must prove that the defendant intended to fire the gun for the additional ten-year mandatory minimum to apply. The United States, on the other hand, contends that sentence enhancement statutes are not standalone criminal offenses and, therefore, that courts can apply these statutes without proof of intent. The outcome of this case could affect how often convicted individuals will receive enhanced sentences, based on whether the Supreme Court decides that prosecutors must prove intent for sentence enhancement factors, or whether the Court views sentence enhancement statutes as merely tailoring sentences to the specific facts of the underlying offense.

 

    Questions as Framed for the Court by the Parties

    Whether 18 U.S.C. § 924(c)(1)(A)(iii), establishing a ten-year mandatory minimum sentence for a defendant who "discharge[s]" a firearm during a crime of violence, requires proof that the discharge was volitional, and not merely accidental, unintentional, or involuntary.

    Petitioner Christopher Michael Dean and his brother-in-law, Ricardo Curtis Lopez, were convicted in federal district court for a bank robbery that occurred on November 10, 2004, in Rome, Georgia. See United States v.

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    Day v. Crosby

    Issues

    Whether after an individual files a habeas corpus petition in federal court, and the State admits in its answer that the petition was filed within the statute of limitations, the State has then waived a statute of limitations defense to a petition, which in fact was not timely filed.
     
    Whether the district court, after asking the State to file an answer to a habeas petition, and after the State's answer is filed, can then dismiss the habeas petition of its own volition under Habeas Rule 4.

     

    Patrick Day is currently incarcerated in the state of Florida, serving a 55-year sentence for second-degree murder. Florida State Courts affirmed his conviction, and in 2003 Day petitioned for habeas corpus review in United States District Court. Under 28 U.S.C. 2254, Day was allowed to petition for a writ of habeas corpus, but the habeas rules provide a statute of limitations for filing the writ, and allows a district court to dismiss the petition sua sponte (or on its own volition) for any one of a number of reasons. In fact, Day's petition was late, but the district court did not dismiss the petition for this reason until after it asked for the State to file a response to Day's petition. In its response the state failed to raise the statute of limitations defense. In this case the Supreme Court must decide whether the State waived its statute of limitations defense when it failed to raise the defense in its responsive pleading and whether the district court was correct in dismissing the petition sua sponte even after the State erroneously admitted Day's petition was timely in its response. The case raises legal and policy considerations, especially in regard to the federal review of otherwise final state court criminal decisions.

    Questions as Framed for the Court by the Parties

    Does the State waive a limitations defense to a habeas corpus petition when it fails to plead or otherwise raise that defense and expressly concedes that the petition was timely?
     
    Does Habeas Rule 4 permit a district court to dismiss a habeas petition sua sponte after the State has filed an answer based on a ground not raised in the answer?
    State Court Proceedings
     
    A Florida jury convicted Patrick Day of second degree murder and sentenced him to prison in September 1998. Brief for the Petitioner ("Pet'r"). at 3. Day appealed his conviction to the Florida First District Court of Appeal, which affirmed the sentence on December 21, 1999. Respondent's Brief on the Merits ("Respt") at 1. Day did not file a petition for certiorari to appeal the decision to the United States Supreme Court, thereby allowing the March 20, 2000 deadline to pass. Id.
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    Davis v. Washington

    Issues

    Are 911 calls — previously admissible as evidence in court even when the witness was absent under exceptions to the hearsay rule — "testimonial" statements and therefore no longer admissible under the new Crawford standard?

     

    The Confrontation Clause of the Sixth Amendment codifies the long-recognized right of an accused to confront his/her accuser, and the corresponding “hearsay rule” requires that if the  accuser  does not testify at trial his/her statements can not be used as evidence.  The trial  judge in this case  allowed a 911 call made by Davis' alleged victim into evidence even though the victim failed to appear at trial.  The Washington Court of Appeals and Washington Supreme Court upheld that decision based on a well-recognized exception to the hearsay rule for reliable or spontaneous statements. Davis now appeals that these decisions were improper in light of the recent Crawford standard which forbids "testimonial" statements from being introduced in the absence of the witness.  Davis claims that the Framers of the Constitution understood the Confrontation Clause to apply to immediate reports of crime to government agents, and therefore, despite the change of technological context, the Clause also applies to 911 calls.  Washington responds that the motivation of the Confrontation Clause — preventing prosecutorial abuse — will not be served by Davis’s interpretation since 911 operators are unlikely to be soliciting testimony with an eye towards trial.  This case, which will be heard back-to-back with Hammon v. Indiana, is the first in which the Court will address the admissibility of the content of 911 calls in the absence of the witness under the reformulated Crawford standard.  Along with the rights of defendants, the case will also have a significant effect on the ability of prosecutors nationwide to convict the accused in "evidence-based" cases where the alleged victim is unavailable to testify, which are especially prevalent in the domestic violence context.

    Questions as Framed for the Court by the Parties

    Whether an alleged victim's statements to a 911 operator naming her assailant — admitted as "excited utterances" under a jurisdiction's hearsay law — constitute "testimonial" statements subject to the Confrontation Clause restrictions enunciated in Crawford v. Washington, 541 U.S. 36 (2004).

    At 11:54 a.m. on February 1, 2001, a 911 operator in Kent, Washington, picked up a call only to hear a dial tone — the party on the other end had hung up before speaking.  Brief for Respondent at 1, State v.

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    Davis v. United States

    Issues

    Where Supreme Court precedent is retroactively applied to invalidate a search, should the results of the search be allowed into evidence as a good-faith exception to the exclusionary rule?

     

    Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to the arrest, Officer Miller searched the vehicle and discovered a gun. Davis was subsequently charged with being a convicted felon in possession of a firearm. At trial, Davis made a motion to suppress the gun as evidence, but the district court denied the motion and let the evidence come in. While Davis’s appeal was pending, the Supreme Court decided Arizona v. Gant, holding that searches like the one conducted in Davis’s case violate the Fourth Amendment. Davis argued on appeal that the retroactive application of Gant to his case should result in exclusion of the gun as evidence. The Eleventh Circuit Court of Appeals ruled against Davis, who now appeals to the Supreme Court. The United States maintains that the evidence of the gun should not be suppressed because Officer Miller, in objectively reasonable good faith, believed his search was proper when it was conducted. This case will determine whether retroactive application of the rule in Arizona v. Gant requires exclusion of evidence acquired under a prior rule, or whether a good-faith exception to the exclusionary rule should apply.

    Questions as Framed for the Court by the Parties

    Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.

    In 2007, Officer Curtis Miller made a routine traffic stop of a car in which Petitioner Willie Davis was riding. See United States v. Davis, 598 F.3d 1259, 1261 (11th Cir.

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    Davenport v. Washington Education Association; Washington v. Washington Education Association

    Issues

    1. Does a labor union have a First Amendment right to spend the wages of non-union members for political purposes?
    2. Does a law requiring labor unions to obtain the permission of non-union members before using their paid fees for political purposes (instead of allowing the unions to use such fees from any nonmembers who do not expressly opt out of such use) unconstitutionally violate the unions' First Amendment rights?

     

    The State of Washington and several Washington educational employees brought suit against the Washington Education Association alleging that the union impermissibly used non-union member “shop fees” to finance political activities in violation of Wash. Rev. Code § 42.17.760's requirement that the union receive affirmative authorization from nonmembers before using their fees for political purposes. The Washington Supreme Court sided with the union and struck down § 760 as unconstitutional. Washington argues that the union does not have a First Amendment right to use shop fees for political purposes. The union responds that § 760 essentially blocks its ability to assert a collective political voice and must survive strict scrutiny to pass constitutional muster. The Supreme Court's decision will determine the balance of First Amendment protection granted to a labor union relative to the protection afforded to dissenting nonmembers who pay shop fees.

    Questions as Framed for the Court by the Parties

    1. Do labor union officials have a First Amendment right to seize and use for politics the wages of employees who have chosen not to become union members?
    2. Does a state campaign finance law that prohibits labor unions and their officials from seizing and using the wages of nonmembers for partisan political campaigns without obtaining the nonmembers' affirmative consent violate the First Amendment rights of labor unions?
    3. Does the requirement in Wash. Rev. Code § 42.17.760 that nonmembers must affirmatively consent (opt-in) before their fees may be used to support the union's political agenda violate the union's First Amendment rights?

    The Washington Employment Association (WEA) is the exclusive bargaining agent for 70,000 Washington state educational employees. Washington State Public Disclosure Commission v. Washington Education Association (WEA), 130 P.3d 352, 354 (2006).

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    Danforth v. Minnesota

    Issues

    Are state courts compelled to use the federal retroactivity standards outlined by the United States Supreme Court in Teague v. Lane to determine the retroactivity of a new federal rule of criminal procedure, or may the state courts devise their own standards for determining retroactivity?

     

    Stephen Danforth was convicted of first degree criminal sexual misconduct in a Minnesota state criminal trial that included videotaped testimonial evidence from Danforth's victim. After Danforth's conviction became final, the United States Supreme Court found that use of such evidence violated a defendant's Sixth Amendment right to confront witnesses against him. But the Court later found this decision did not apply retroactively to convictions finalized before the decision was announced. The court made this decision using Supreme Court retroactivity standards. Danforth now asks the Supreme Court to decide whether a state post-conviction court can use state retroactivity standards to apply a new Supreme Court decision on criminal procedure to a final conviction, or if it must use the retroactivity standards the Supreme Court has established. This decision will clarify the boundaries between state and federal authority in state post-conviction proceedings that address federal questions.

    Questions as Framed for the Court by the Parties

    Are state supreme courts required to use the standard announced in Teague v. Lane, 489 U.S. 288 (1989), to determine whether United States Supreme Court decisions apply retroactively to state-court criminal cases, or may a state court apply state-law- or state-constitution-based retroactivity tests that afford application of Supreme Court decisions to a broader class of criminal defendants than the class defined by Teague?

     
    The following facts are taken from the opinion of the Minnesota Court of Appeals in which Stephen Danforth's first appeal was denied. In 1996, a Minnesota jury in Hennepin County District Court found Stephen Danforth guilty of first degree criminal sexual misconduct for the sexual abuse of a six-year-old boy named J.S. At trial, the court found that J.S. was incompetent to testify at trial and admitted a videotaped interview in which J.S.
    Acknowledgments

    The authors would like to thank Professors John Blume and Kevin Clermont for their invaluable insights into this case.

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