Brown v. United States

Issues

When sentencing a defendant for a federal firearm offense, how should courts determine whether the defendant’s past state drug conviction is a “serious drug offense” warranting a higher minimum sentencing requirement?

Oral argument:

November 27, 2023

Court below:

United States Court of Appeals for the Third Circuit

This case asks the Supreme Court to determine when the Armed Career Criminal Act (18 U.S.C. § 924(e)) (“ACCA”) applies to a defendant with prior state drug offenses who is facing sentencing for a Gun Control Act (18 U.S.C. § 922(g)) (“GCA”) violation. The ACCA is a “three–strikes” law which imposes a 15–year mandatory minimum imprisonment term on defendants convicted of violating the GCA and at least three prior violent felonies or “serious drug offenses.” However, a prior state drug offense only counts as a “strike” under the ACCA if the relevant state drug prohibition categorically matches its federal counterpart. Brown argues that federal and state laws must match at the time of sentencing for the GCA violation. Brown claims that his interpretation most closely aligns with the ACCA’s plain meaning and serves judicial efficiency because compliance is easier. The United States argues that federal and state laws must match at the time of the prior state drug offense. The United States claims that its interpretation most aligns with the ACCA’s legislative intent and promotes consistency in the criminal justice system. This case touches on important questions regarding fair notice to criminal defendants as well as federal controlled–substances schedules’ responsiveness to scientific and social developments.

Questions as Framed for the Court by the Parties

Whether the "serious drug offense" definition in the Armed Career Criminal Act incorporates the federal drug schedules that were in effect at the time of the federal firearm offense or the federal drug schedules that were in effect at the time of the prior state drug offense.

Facts

The Armed Career Criminal Act (“ACCA”) imposes a fifteen–year mandatory minimum imprisonment term when a defendant violates the Gun Control Act, codified under 18 U.S.C. § 922(g) (“GCA”), and also has at least three prior federal or state convictions for violent felonies or “serious drug offenses.” United States v. Brown at 149. However, under the categorical approach in Mathis v. United States, a state conviction cannot serve as an ACCA predicate offense if the relevant state law is broader in scope than its federal counterpart. Id.

Petitioner Justin Rashaad Brown pled guilty in 2019 to two offenses: being a felon in possession of a firearm in violation of § 922(g) and one charge of cocaine possession and distribution. Id. at 148–49. Brown had five prior state drug convictions: a 2008 cocaine offense and four offenses from 2009 to 2014 related to marijuana. Id. at 149.

In 2021, the United States District Court for the Middle District of Pennsylvania reasoned that Brown’s state drug convictions were “serious drug offenses” and sentenced Brown to thirty years’ imprisonment. Id.

On appeal to the United States Circuit Court for the Third Circuit, Brown argued that his marijuana offenses were not a predicate offense under the ACCA. Id. at 150. Brown noted that Pennsylvania’s marijuana prohibition has been broader than its federal counterpart since the federal decriminalization of hemp in 2018. Id. at 150–51. Brown argued that the categorical approach precluded his Pennsylvania convictions from affecting his 2021 federal sentencing. Id.

The Third Circuit upheld Brown’s sentence, ruling that the ACCA’s “serious drug offense” classification looks to the match of the federal and state laws at the time of the federal offense, not the time of sentencing. Id. at 153. The Third Circuit reasoned that since Brown’s 2016 firearms offense preceded the 2018 change in federal marijuana law, his marijuana convictions were “serious drug offenses.” Id. at 155.

Brown’s case is consolidated with Jackson v. United States, which concerns similar facts.

Petitioner Eugene Jackson pled guilty to two offenses committed in 2017: being a felon in possession of a firearm and ammunition in violation of the GCA under 18 U.S.C. §§ 922(g)(1) and 924(e)(1). United States v. Jackson at 849.

Jackson conceded that he had two prior violent felony convictions, but he argued that his 1998 and 2004 cocaine–related convictions were not “serious drug offenses.” Id. The United States District Court for the Southern District of Florida applied the ACCA’s mandatory minimum and sentenced Jackson to fifteen years’ imprisonment. Id.

On appeal to the United States Court of Appeals for the Eleventh Circuit, Jackson argued that his cocaine offenses were not predicate offenses under the ACCA. Id. at 851. Jackson noted that Florida’s cocaine prohibition has been broader than its federal counterpart since the federal decriminalization of cocaine–derived ioflupane in 2015. Id. at 851, 854. Jackson argued that the categorical approach precluded his Florida convictions from affecting his 2017 federal firearms offense. Id at 851.

The Eleventh Circuit upheld Jackson’s sentence, ruling that the ACCA’s “serious drug offense” classification looks at the federal controlled–substances schedules from the time of the state drug conviction, not at the time of the later federal firearm offense. Id at 854. The Eleventh Circuit reasoned that, because Florida cocaine law matched its federal counterpart in 1998 and 2004, Jackson’s cocaine convictions were “serious drug offenses.” Id. at 861–62.

Brown and Jackson appealed to the United States Supreme Court, which granted certiorari on May 15, 2023. Brief for Petitioner, Brown v. United States of America at 2.

Analysis

STATUTORY INTERPRETATION OF SENTENCING UNDER 924(e)(2)(A)(ii)

Brown argues that 924(e)(2)(A)(ii) requires offenders to be sentenced according to the definition of a controlled substance, provided in Section 102 of the Controlled Substances Act, (“CSA”) at the time of sentencing, when convicted under the Armed Career Criminal Act (“ACCA”). Brief for Petitioner, Brown v. United States of America at 10. Brown states that this time-of-sentencing construction of the statute aligns with the statute’s plain meaning, as Congress could have made explicit reference to previous sentencing guidelines and declined to do so. Id. at 11. Brown asserts that this perspective on the statute aligns with the reference canon, which states that a reference to any law includes a reference to any subsequent development in the law. Id. at 11–12. Brown maintains that the provision, read as a whole, requires a “here-and-now” approach wherein courts first determine the elements of the crime at the conviction and then decide whether that conviction comports with the ACCA’s requirements. Id. at 13. Relatedly, Brown argues that the rule of lenity, where ambiguous statutes are resolved in the manner most lenient to the defendant, should resolve this ambiguity in his favor because the United States’ interpretation of the statute is not “unambiguously correct.” Id. at 25.

The United States emphasizes that the ACCA’s text directs courts to look at the controlled substances list in effect at the time of the state crime. Brief for Respondent, Brown v. United States of America at 17–19. The United States urges that the ACCA is meant to punish past crimes, so the appropriate sentence should consider the crime at the time of conviction. Id. at 19. The United States asserts that the plain meaning of the word “involving” in the statute directs courts to examine the attributes of the offense as defined historically. Id. at 19–20, 41–42. The United States argues that Brown’s view of the plain meaning of the statute is “not an obvious inference,” and that the possibility of clearer phrasing does not overcome Brown’s interpretation, because Congress could have explicitly departed from the “generally ‘backward-looking’ framework of the ACCA.” Id. at 21. The United States further posits that Brown’s position is inconsistent because he concedes that he can be punished under the version of the ACCA in place in 2017, which has the same enhanced sentencing guidelines under a “three strike” rule as in 2023. Id. at 40. The United States further counters that Brown’s reliance on the rule of lenity is incorrect because Brown’s approach would not result in lenity for everyone. Id. at 42–43. Rather, the rule of lenity approach would result in harsher sentences for certain offenders if their drug crimes are subsequently scheduled more severely under the CSA. Id.

WHETHER “SERIOUS DRUG OFFENSES” IS A BACKWARD-LOOKING RULE

Brown further argues that the ACCA’s statutory scheme requires sentencing courts to apply contemporary drug schedules. Brief for Petitioner at 14. Brown states that, unlike other statutory provisions which have not changed as a matter of common law, the “serious drug offense” clause has changed under Congress’ evolving regulation of controlled substances. Id. at 14–15. Brown notes that Congress could have passed a backward-looking rule but did not do so. Id. at 15. Brown further contends that his interpretation ensures that the statute does not become “self-defeating.” Id. at 16. Brown emphasizes that the United States’ construction of the statute would nullify many convictions from before May 1, 1971, because the CSA had not gone into effect. Id. Brown elaborates that such a result is not only absurd, but also runs counter to legislative history, which does not show that Congress intended such an outcome. Id. at 17–18.

The United States counters that the statutory context of sections 924(e)(2)(A)(i) supports a backward-looking rule, specifically that the provisions adjacent to 924(e)(2)(A)(ii) indicate a congressional preference for a backward-looking rule. Brief for Respondent at 22–23. The United States argues that Jackson’s reading would create a “loophole” depending on whether a defendant was charged at the state or federal level. Id. at 23. The United States urges that such an outcome is counterintuitive, and that it makes more sense for state and federal predicates to be treated consistently. Id. at 24. The United States maintains that this construction mirrors the 921(a)(20) rule for expungement of state convictions, because the statutory language creates a “negative implication” that courts may rely on convictions that are still on an offender’s record during sentencing. Id. at 25–26. Furthermore, the United States contends that Brown’s approach lacks contextual support because federal laws targeting recidivism are meant to further uniformity between state and federal convictions, which the United States’ approach achieves. Id. at 27. The United States further argues that Congress could have intended to leave out drug crimes from before 1970, so the “disappearing” issue that Brown highlights would not be a barrier to a ruling in the United States’ favor. Id. at 27–29.

STATUTORY PURPOSE AND JUDICIAL EFFICIENCY

Brown argues that a time-of-sentencing approach most advances the ACCA’s goals. Brief for Petitioner at 21. Brown asserts that Congress intended to incapacitate criminals by predicting future dangerousness on the basis of contemporary drug laws. Id. at 21–22. Brown states that a time-of-sentencing approach encourages courts to apply Congress’ most up-to-date judgment about which substances are most predictive of future capacity for recidivism. Id. at 22. Brown posits that his construction would allow courts to impose longer sentences by taking offenders’ previous conduct into consideration at sentencing independently from the controlled substance schedules. Id. at 22–23. Brown asserts that, under the government’s approach, courts would have to consult regulations that are no longer in effect. Id. Such an approach, Brown contends, would complicate federal sentencing because states regularly criminalize drugs before they are scheduled under the CSA. Id. at 24–25.

The United States argues that its time-of-state-conviction approach ensures that offenders are given notice of the consequences of a state-level conviction and tailors sentencing to the offender’s culpability. Brief for Respondent at 36. The United States maintains that culpability is best assessed at the time of offense because such an approach reflects the legislative concern that existed regarding future capacity for recidivism. Id. at 36–37. The United States claims that offenses are dangerous even if they are no longer statutorily punishable and are therefore a reflection of an offender’s prior culpability. Id. at 37. The United States further argues that the time-of-state-conviction approach provides defendants with notice because they would be able to determine in advance whether the ACCA would apply to their conduct, increasing judicial efficiency in plea bargaining as well. Id. at 37.

RELEVANCE OF PRECEDENT UNDER McNeill v. United States AND Mellouli v. Lynch

Brown argues that the Supreme Court’s precedent in McNeill v. United States, which found the time-of-state-conviction as the appropriate time to determine the maximum sentence for prior state drug offenses under the ACCA, does not control here. Brief for Petitioner at 26. Brown notes that McNeill dealt with the concern that criminal convictions would “disappear[]” with evolving drug statutes due to state legislative changes. Id. However, Brown asserts that the McNeill court did not address which version of federal law to apply when looking at “historical facts.” Id. at 26–27. Additionally, McNeill did not address the meaning of “controlled substance” in the context of the CSA or evolving changes to federal drug schedules. Id. at 27. Brown further asserts that Mellouli v. Lynch does not apply because it addressed the state schedules in place when Mellouli was convicted, instead of the federal schedules. Reply Brief for Petitioner, Jackson v. United States of America at 10–11. Brown also distinguishes Mellouli because it dealt with immigration law, which immediately imposes deportation for a state drug conviction. Id. at 10–11. Finally, Brown argues that his approach would allow Congress, instead of state legislatures, to determine the federal sentencing impact of federal convictions. Id. at 28.

The United States responds that the Supreme Court’s precedents indicate that the ACCA calls for a backward-looking approach. Brief for Respondent at 29. In McNeill, for instance, the Court determined that the sentencing guidelines under the ACCA referred to the time of the defendant’s conviction. Id. at 29–30. The United States emphasizes that the McNeill Court specifically denounced the time-of-sentencing approach that Brown endorses. Id. at 31. Similarly, the United States asserts that Mellouli instructs the Court to adopt a backward-looking rule. Id. at 33. The United States argues, in Mellouli, the Court found the Immigration and Nationality Act, like the ACCA, to impose penalties for prior convictions “relating to a controlled substance.” Id. at 34. The United States asserts that the Mellouli Court focused on the drug schedules in effect at the time of conviction and has precedential value here. Id. at 35.

Discussion

FEDERAL DEFENDANTS’ RIGHTS AND FAIR NOTICE CONCERNS

The National Association of Federal Defenders (“NAFD”), in support of Brown and Jackson, argues that a backward–looking rule would disadvantage federal defendants because, even for a defendant’s lawyer, the task of researching the correct law at the exact time of each prior conviction is an onerous burden. Brief of Amicus Curiae The National Association of Federal Defenders (“NAFD”), in Support of Petitioners at 24–25. The NAFD asserts that lay defendants would be confused because they lack the legal training and resources to calculate what sentences they could be eligible for. Id. at 26–27. The NAFD argues that, as a result, federal defendants would be more likely to accept otherwise unfavorable pleas. Id. at 25–26. The NAFD contends that such a result would be contrary to principles of fair notice because under Dubin v. United States, criminal statutes should be interpreted in the manner a reasonable layperson would. Id. at 26.

In its prior ruling, however, the Third Circuit reasoned that a backward–looking rule treats federal defendants relatively fairly because, while “[a]ny line–drawing exercise will create some arbitrariness,” defendants have control over the date of their criminal conduct. Brown v. United States at 153. The Third Circuit also explained that a backward–looking rule is transparent because it provides clear criteria for calculating a defendant’s sentencing range. Id. The Third Circuit posits that a time–of–sentencing rule would result in arbitrary disparities between defendants’ sentences, because it would be based not on their conduct but on when their plea and sentencing hearings were scheduled. Id.

REFLECTING SCIENTIFIC AND SOCIAL DEVELOPMENTS IN THE LAW

The National Association of Criminal Defense Lawyers (“NACDL”), in support of Brown and Jackson, argues that a backward–looking rule hinders the law from responding to new scientific developments because older statutes may rely on outdated research. Brief of Amicus Curiae The National Association of Criminal Defense Lawyers (“NACDL”), in Support of Petitioners at 8–11. The NACDL contends that sentencing courts should be particularly sensitive to the frequent changes in the federal drug schedule because those changes may reflect public safety concerns or new research around addiction and medicine. Id. at 8–11.

Furthermore, FAMM (previously known as Families Against Mandatory Minimums), in support of Brown and Jackson, argue that a backward–looking rule also risks replicating social policy mistakes because older statutes may rely on outdated criminal justice models, such as the assumption that drug offenders are likely to engage in recidivism. Brief of Amicus Curiae FAMM, in Support of Petitioners at 9–14. FAMM also warns that a backward–looking rule would replicate racial disparities in sentencing because Black and Hispanic men were disproportionally convicted of drug crimes under unfair policies like the different sentencing practices for crack cocaine versus powder cocaine. Id. at 28–32.

The Third Circuit reasoned, however, that a backward–looking rule would be sensitive to new scientific and social developments because legislators can retroactively repeal outdated penalties. Brown at 152. The Third Circuit found that backward–looking sentences comport with legislative intent because, for instance, the 2018 federal law decriminalizing hemp could have pardoned hemp offenses retroactively but declined to do so. Id. The Third Circuit added that a backward–looking rule would preserve a time–of–sentencing option because legislators can specify that rule when they pass legislation modifying the federal controlled–substance schedules. Id.

The United States contends that the petitioners’ proposed rules could lead to unjust social results of their own because some more recent versions of the federal schedules not only subtract but also add prohibited substances. Brief for Respondent, Brown v. United States of America at 42–43. The United States argues that defendants with minor prior convictions would suddenly become subject to the ACCA’s mandatory minimum because their past crimes involved a since–banned substance. Id. at 43. The United States submits that the petitioners’ proposals do not cure the ACCA’s harshness but instead shift that harshness to a new set of defendants. Id.