Issues
Whether a court determining the “seriousness” of a defendant’s prior drug offense under the Armed Career Criminal Act should look to the maximum possible sentence for that offense at the time of the defendant’s prior conviction or at the time of the individual’s current federal sentencing.
In 2009, Petitioner Clifton Terelle McNeill was convicted and sentenced for the possession with intent to distribute a quantity of cocaine and for the possession of a firearm in furtherance of a drug trafficking crime. The district court determined that McNeill qualified for a sentencing enhancement under the Armed Career Criminal Act ("ACCA") because of his two prior convictions for common law robbery and felony assault, as well as six convictions for selling cocaine and possession of cocaine. The ACCA applies to “serious drug offenses,” which are defined as crimes that carry a maximum imprisonment term of at least ten years. McNeill argues that the ACCA did not apply because, although his drug offenses did carry a maximum of at least ten years when they were committed, North Carolina had since lowered its drug sentences by the time of his current sentencing. Conversely, the United States insists that because North Carolina decided not to make its drug sentencing change retroactive, the ACCA does in fact apply to McNeill.
Questions as Framed for the Court by the Parties
Whether the plain meaning of "is prescribed by law" which ACCA uses to define a predicate "serious drug offense" requires a federal sentencing court to look to the maximum penalty prescribed by current state law for a drug offense at the time of the instant federal offense, regardless of whether the state has made that current sentencing law retroactive.
Facts
The Armed Career Criminal Act (“ACCA”) imposes a mandatory minimum prison sentence of fifteen years to any criminal defendant convicted of a crime with a prison sentence exceeding one year who has had three prior convictions for a violent felony or “serious drug offense.” The ACCA defines a “serious drug offense” as any offense involving the manufacture, distribution, or possession of a controlled substance with the intent to manufacture or distribute for which the maximum sentence is ten years or more.
In February 2007, North Carolina police observed Petitioner Clifton Terelle McNeill run a red light and attempted to perform a routine traffic stop. McNeill, however, evaded the officers for a few miles, and then proceeded to flee on foot, whereupon the officers tackled McNeill, recovered a revolver underneath him, and—after performing a search—found 3.1 grams of crack cocaine on McNeill that was packaged for distribution.
McNeill’s criminal history included prior convictions in 1992 and 1995 for the sale of cocaine and possession of cocaine with intent to sell, which at those times carried maximum penalties of ten years. Subsequently, North Carolina revised its sentencing statutes for these two offenses, which at the time of McNeill’s 2007 arrest carried a lower maximum penalty of twenty-five months in prison. In this revision, North Carolina specifically noted that the new sentences did not apply to crimes committed before the revisions took effect.
For his 2007 arrest, McNeill was indicted for (1) the unlawful possession of a firearm; (2) the possession with intent to distribute crack cocaine; and (3) the possession of a firearm in relation to a drug trafficking crime.McNeill pled guilty to the first two counts and the district court dismissed the third. Interpreting the ACCA’s “serious drug offense” provision as incorporating the applicable sentences for McNeill’s prior offenses at the time of those convictions, the district court held that McNeill was an armed career criminal under the ACCA.
On appeal, the United States Court of Appeals for the Fourth Circuit rejected McNeill’s argument that the ACCA’s “serious drug offense” provision limited the court’s inquiry to whether that offense was “serious,” (i.e. had a maximum sentence of ten or more years), at the time of federal sentencing. The Fourth Circuit affirmed the district court’s assessment of the ACCA, noting specifically that because North Carolina’s sentencing revisions were not retroactive, McNeill’s 1992 and 1995 offenses carried maximum sentences of ten years. The court thus ruled that McNeill was properly classified as an armed career criminal.
McNeill subsequently filed a petition for rehearing and for rehearing en banc in March 2010, both of which the Fourth Circuit denied. The Supreme Court of the United States granted McNeill’s petition for writ of certiorari in January 2011 to resolve a circuit split.
Analysis
Under the Armed Career Criminal Act (“ACCA”), certain defendants face a minimum prison term of fifteen years if they committed three prior violent felonies or “serious drug offenses.”A “serious drug offense” is defined as a state law drug offense “for which a maximum term of imprisonment of ten years or more is prescribed by law.” In this case, the Supreme Court will determine whether a state’s subsequent revision of its drug crime sentences has any bearing on the definition of “serious drug offense.”
Plain Meaning of the Statute
Petitioner Clifton Terelle McNeill insists that by looking at the Armed Career Criminal Act’s plain language, it is clear that Congress intended for the state’s present statutory maximum for drug offenses to determine the seriousness of a crime, and not the previously prescribed penalty. Particularly, McNeill maintains that Congress used the present tense (“is prescribed by law”) instead of the past tense (“was prescribed”) to ensure that a court looks to the current penalty when making a sentencing determination. McNeill also points out that other courts considering this issue found that the language “is prescribed” refers to the prison term an offense presently mandates. Furthermore, McNeill posits that in order to ensure that a defendant is being punished for his instant crime and not for past offenses, the federal court should use an offense’s current status to gauge its seriousness.
Respondent United States argues that regardless of whether the Court looks at North Carolina’s sentencing guidelines from the time McNeill committed his previous offenses or whether the Court looks to North Carolina’s current sentencing guidelines, the law considers his predicate offenses to be a “serious drug offense.”The United States argues that the structure of the ACCA, its text, and the Court’s prior decisions all supports this conclusion. In response to McNeill’s argument concerning congressional intent, the United States insists that McNeill’s focus on the use of the present tense (“is prescribed by law”) language is inaccurate. Specifically, the United States asserts that when placed in proper context, the verb refers to the date on which a defendant was sentenced for his predicate offense. Furthermore, if the Court looked at how the ACCA defines other crimes, the United States asserts that the use of present tense verbs doesn’t warrant ignoring when a prior offense was committed. Moreover, elsewhere in the ACCA, the definition of a “violent felony” refers to the date of the underlying felony, and not the time of current sentencing. The same interpretation is true for the Federal Three Strikes Law, 18 U.S.C. § 1097, another federal recidivist statute.
The Effect of Non-retroactivity
The parties also disagree over the effect of North Carolina’s decision to make its revised sentencing guidelines prospective in nature rather than apply retroactively to crimes committed prior to the sentencing modifications. McNeill argues that a state’s decision on retroactivity has no bearing on that state’s opinion on the seriousness of a crime. McNeill asserts that the Supreme Court’s decision in United States v. Rodriquez, 553 U.S. 377 (2008), established that the term “an offense” is defined as a crime in its generic form, without any reference to when it was committed. McNeill posits that the Fourth Circuit was mistaken in believing that the state’s decision on retroactivity was a verification of the seriousness of an offense. McNeil insists that North Carolina’s decision to make the drug sentences non-retroactive was based on its desire to protect existing prosecutions and avoid ex post facto challenges.
In response to this point, the United States argues that McNeill’s interpretation of Rodriguez creates confusing results. For example, under McNeill’s interpretation, the maximum sentence prescribed by law for his prior offense is lower than the sentence that he actually received. Furthermore, the United States insists that McNeill’s interpretation does not serve the ACCA’s purposes. Under his interpretation, if a state chooses to change the status or definition of an offense after a defendant’s original conviction but before his ACCA conviction, that state would be forced to retroactively apply the new sentencing guidelines, even if they purposely chose to make the new guideline exclusively prospective. For example, if a state decides to legalize a drug and its distribution, any previous convictions for the use or sale of that drug would “vanish for ACCA purposes.” This would be so even if, as a matter of law, the state decided it wanted to maintain those convictions. The United States further points out that, currently, mandatory minimum sentences depend on when a defendant commits a criminal offense. However, McNeill’s interpretation would allow mandatory minimum sentences to be dependent on the coincidence of the timing of a defendant’s ACCA sentencing.
McNeill insists that ample evidence supports the fact that North Carolina’s decision not to make the drug sentencing guidelines retroactive was based on budgetary and administrative concerns. McNeill maintains that since North Carolina was facing a complete overhaul of its sentencing laws and policies, as well as a threat of federal takeover, making the amendments non-retroactive enabled it to ensure that it would have adequate funding to implement these new policy changes. Furthermore, North Carolina expected that their prisoners would end up spending the same amount of time in jail under the new guidelines as they had under the old one. McNeill argues that this, in effect, removed any motivation for North Carolina to make the new law retroactive.
The United States argues that the fact that this sentencing change is not retroactive should be respected. It insists that the only relevant inquiry should be to determine what the maximum prison term for a defendant’s prior offense is, and not why North Carolina decided to change their sentencing guidelines without making it retroactive. Since North Carolina did not choose to make its sentencing changes retroactive, the maximum sentence for McNeill’s underlying offense remains at least 10 years, making it a “serious drug offense.”
Consistency in the Law
Finally, McNeill posits that the Fourth Circuit’s interpretation of ACCA cannot be consistently applied, especially in cases involving such issues as statute of limitations or choice of law. Alternatively, the United States insists that McNeill’s interpretation wouldn’t put defendants on sufficient notice. The ACCA is meant to be a deterrent to the subset of defendants with prior convictions by imposing upon them longer prison sentences for any subsequent violations of the law. In the government’s view, these repeat offenders will be more likely to know the sentencing guidelines they were exposed to during their prior proceedings rather than the current sentence for the same offense.
Discussion
The Supreme Court’s decision in this case will determine whether, under the Armed Career Criminal Act (“ACCA”), a court determining whether a defendant convicted of a “serious drug offense” —a drug offense with a maximum prison sentence of ten years or more—must look to the penalty of that offense as it existed on the date of the defendant’s original conviction or the date on which the defendant was sentenced under the ACCA in federal court. The outcome of the case raises potential constitutional concerns, and creates the possibility of sentencing disparities between similarly-situated defendants.
Sixth Amendment Concerns
A decision in favor of the United States may implicate a defendant’s Sixth Amendment right to a trial by an impartial jury. For example, if a federal court sentencing a defendant under the ACCA determines the “seriousness” of the defendant’s prior convictions by looking to the state law as it existed at the time the defendant committed the offense, then that court is arguably making a determination that part of the “offense” includes the date the defendant committed the offense. This is problematic because if the prior state law lowers the maximum prison sentence for an offense from ten years to less than ten years, a court using this approach would be forced to rule that the defendant’s prior offense was sufficiently “serious” enough because it was committed on a date before the law changed. However, because the date of the offense is not an issue that is submitted to a jury or proved beyond a reasonable doubt, the defendant’s Sixth Amendment right to an “impartial jury” on that issue would be violated.
The counterpoint is that a defendant’s Sixth Amendment rights may not be violated by the absence of a jury’s consideration of certain sentencing factors. For example, in Almendarez-Torres, the Supreme Court ruled that a prior qualifying conviction under a federal sentencing statute was a sentencing factor rather than an element of an offense. The Court reasoned that judges traditionally use this factor to alter the maximum sentence for a crime, and thus held that a “penalty provision” of the statute at issue in that case required neither proof by the prosecution nor jury consideration. Hence, if the Supreme Court similarly considers the date of a defendant’s prior offense as a non-elemental sentencing factor in this case, and that the ACCA’s “serious drug offense” provision was merely a “penalty provision,” then the Sixth Amendment concerns raised by the Darden court may be unfounded.
Sentencing Consequences for Defendants
On the one hand, a decision in favor of the United States may produce disparate sentencing outcomes for defendants receiving ACCA sentencing who committed the same previous offense at different times. For example, if a court examines state law as it existed at the time of a defendant’s original conviction to decide whether the offense was “serious,” then a defendant who committed a drug offense the day before the state legislature lowered the penalty for that offense may expose the defendant to a mandatory 15-year sentence under the ACCA, whereas if the same defendant committed the crime a day later, he would not be subject to the 15-year sentence. This disparity could raise equal protectionconcerns because the ACCA would be imposing different penalties on similarly-situated defendants with identical criminal histories simply because they committed the same crime on different days.
In contrast, a decision in favor of McNeill may similarly produce unfair sentencing results for defendants committing the same crime in different places. Most notably, if a court sentencing a defendant under the ACCA examines the law for that offense at the time of federal sentencing to determine whether the offense is “serious,” then two identical defendants committing the same offense on the same day could be subject to a harsher penalty if one of the defendants, but not the other, committed the crime in a state whose legislature subsequently changed the maximum penalty for that offense to less than ten years, thus no longer making the crime a “serious” offense.
Ultimately, in this case, the Supreme Court will have to decide whether the date of original conviction or the date of federal sentencing should be used by a court determining whether a defendant committed a “serious drug offense” under the ACCA. A decision in favor of the United States could pose Sixth Amendment concerns for defendants in the future. Moreover, a decision in favor of either party could create sentencing inequities for defendants who commit the same crime at different times or in different places.
Conclusion
The Supreme Court will determine if an amendment to a state’s sentencing guidelines affects the definition of “serious drug offense” under the Armed Career Criminals Act. The Supreme Court will have to factor in North Carolina’s decision not to apply its sentencing revisions retroactively. McNeil argues that the plain language of statute , combined with North Carolina’s recognition of the non-serious nature of his prior crimes, indicate that he did not commit a “serious drug offense.” The United States disputes McNeil’s reading of the statute, arguing that it ignores the intentions of the North Carolina legislature and would lead to illogical outcomes. While a decision in favor of McNeill might result in unfair sentencing results for two defendants who committed the same exact crime in different places, a decision in favor of the United States may result in different sentencing results for two defendants who committed the same exact previous offense at different times.
Written by
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Acknowledgments
Additional Resources
· The Drug Policy Alliance: Mandatory Minimum Sentences
· Congressional Research Service, Charles Doyle: Armed Career Criminal Act: An Overview (Oct. 13, 2010)
· North Carolina Bar Association, Carl Horn III The Changing Landscape Governing Armed Career Criminal Sentences (June 8, 2010)