Amicus Curiae Brief — Eddie Lee Shular, Petitioner v. United States
Supreme Court briefOct 2, 2019
Ask Donna
What actually matters in this document.
Text
No. 18-6662
IN THE
pìéêÉãÉ=`çìêí=çÑ=íÜÉ=råáíÉÇ=pí~íÉë=
EDDIE LEE SHULAR,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
On Writ of Certiorari
To the United States Court of Appeals
For the Eleventh Circuit
BRIEF OF FAMM AS AMICUS
CURIAE IN SUPPORT OF PETITIONER
MARY PRICE
FAMM FOUNDATION
1100 H Street, N.W.
Suite 1000
Washington, D.C. 20005
(202) 822-6700
PETER GOLDBERGER
50 Rittenhouse Place
Ardmore, PA 19003
peter.goldberger@verizon.net
DAVID DEBOLD
Counsel of Record
MATTHEW GUICE AIKEN
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
ddebold@gibsondunn.com
AVI WEITZMAN
LEE R. CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
Counsel for Amicus Curiae
i
QUESTION PRESENTED
Whether the determination of a “serious drug
offense” under the Armed Career Criminal Act
requires the same categorical approach used in the
determination of a “violent felony” under the Act.
ii
TABLE OF CONTENTS
Page
INTEREST OF AMICUS CURIAE............................. 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT ............................................................... 4
I. The Eleventh Circuit Erred In Not
Applying The Traditional Categorical
Approach To Section 924(e)(2)(A)(ii). .................... 4
A. The Eleventh Circuit Did Not Apply
The Traditional Categorical Approach
Articulated By This Court.............................. 4
B. Section 924(e)(2)(A)(ii)’s Plain Text
Requires The Categorical Approach’s
Traditional Application. ............................... 10
C. The Eleventh Circuit’s Version Of The
Categorical Approach Will Undercut
Uniformity And Consistency In
ACCA’s Application. ..................................... 16
D. The Eleventh Circuit’s Expansive
Interpretation Of Section 924(e)(2)(A)
Raises Serious Practical And
Constitutional Concerns............................... 20
II. The Eleventh Circuit’s Version Of The
“Categorical Approach” Would Make
Mandatory Minimums The Rule, Not The
Exception, Proliferating Their Detrimental
Effects Without Basis. ......................................... 26
CONCLUSION .......................................................... 31
iii
TABLE OF AUTHORITIES
Page(s)
Cases
Bordenkircher v. Hayes,
434 U.S. 357 (1978) .............................................. 29
Chambers v. United States,
555 U.S. 122 (2009) .............................................. 17
Descamps v. United States,
570 U.S. 254 (2013) ........................................ 2, 5, 6
Harmelin v. Michigan,
501 U.S. 957 (1991) .............................................. 19
Jennings v. Rodriguez,
583 U.S. —, 138 S. Ct. 830 (2018) ................. 21, 24
Kawashima v. Holder,
565 U.S. 478 (2012) .............................................. 13
Lockhart v. United States,
577 U.S. —, 136 S. Ct. 958 (2016) ................. 13, 21
Mathis v. United States,
579 U.S. —, 136 S. Ct. 2243 (2016) ............. passim
McBoyle v. United States,
283 U.S. 25 (1931) ................................................ 22
McFadden v. United States,
576 U.S. —, 135 S. Ct. 2298 (2015) ................. 9, 15
iv
Mellouli v. Lynch,
575 U.S. —, 135 S. Ct. 1980 (2015) ............. passim
Moncrieffe v. Holder,
569 U.S. 184 (2013) .............................................. 13
Morissette v. United States,
342 U.S. 246 (1952) .............................................. 10
Pub. Citizen v. U.S. Dep’t of Justice,
491 U.S. 440 (1989) .............................................. 21
Rehaif v. United States,
588 U.S. —, 139 S. Ct. 2191 (2019) ............. passim
Russello v. United States,
464 U.S. 16 (1983) ................................................ 14
Scheidler v. Nat’l Org. for Women, Inc.,
537 U.S. 393 (2003) .............................................. 13
Sessions v. Dimaya,
584 U.S. —, 138 S. Ct. 1204 (2018)
(plurality opinion) .......................................... 11, 22
Shepard v. United States,
544 U.S. 13 (2005) ................................................ 13
Staples v. United States,
511 U.S. 600 (1994) ........................................ 15, 25
State v. Adkins,
96 So.3d 412 (Fla. 2012) .................................. 9, 25
Taylor v. United States,
495 U.S. 575 (1990) ...................................... passim
v
United States v. Bass,
404 U.S. 336 (1971) .............................................. 24
United States v. Brandon,
247 F.3d 186 (4th Cir. 2001) .............. 17, 22, 23, 24
United States v. Bynum,
669 F.3d 880 (8th Cir. 2012) .................... 17, 18, 19
United States v. Eason,
919 F.3d 385 (6th Cir. 2019) ................................ 19
United States v. Estrella,
758 F.3d 1239 (11th Cir. 2014) ............................ 15
United States v. Faust,
853 F.3d 39 (1st Cir. 2017) .................................. 25
United States v. Fish,
368 F.3d 1200 (9th Cir. 2004) .............................. 14
United States v. Franklin,
904 F.3d 793 (9th Cir. 2018) .......................... 15, 18
United States v. Gibbs,
656 F.3d 180 (3d. Cir. 2011) ................................ 20
United States v. King,
325 F.3d 110 (2d Cir. 2003) ................................. 23
United States v. Park,
421 U.S. 658 (1975) .............................................. 25
United States v. Randall,
171 F.3d 195 (4th Cir. 1999) .................................. 9
vi
United States v. Shular,
736 Fed. Appx. 876 (11th Cir. 2018) ..................... 3
United States v. Smith,
775 F.3d 1262 (11th Cir. 2014) ................ 3, 8, 9, 14
United States v. Stitt,
586 U.S. —, 139 S. Ct. 399 (2018) ......................... 2
United States v. U.S. Gypsum Co.,
438 U.S. 422 (1978) .............................................. 25
United States v. Whindleton,
797 F.3d 105 (1st Cir. 2015) ................................ 17
United States v. White,
837 F.3d 1225 (11th Cir. 2016) ...................... 17, 23
United States v. Wilfong,
733 Fed. Appx. 920 (10th Cir. 2018) ................... 13
United States v. Windley,
864 F.3d 36 (1st Cir. 2017) .................................. 15
United States v. Wong Kim Bo,
472 F.2d 720 (5th Cir. 1972) ................................ 15
Statutes
8 U.S.C. § 1101 .......................................................... 13
18 U.S.C. § 922 ............................................................ 4
18 U.S.C. § 924 .................................................. passim
18 U.S.C. § 1961 ........................................................ 13
vii
18 U.S.C. § 2252 ........................................................ 13
21 U.S.C. § 801 et seq. ........................................... 7, 16
21 U.S.C. § 951 et seq. ........................................... 7, 16
California Penal Code Ann. § 469 (West
2010) ....................................................................... 6
First Step Act of 2018, Pub. L. No. 115391, 132 Stat. 5194 (2018) ............................... 4, 29
Fla. Stat. § 893.13 ................................................... 8, 9
Fla. Stat. § 893.101 ..................................................... 9
Fla. Stat. § 893.1351 ................................................. 19
S.C. Stat. § 44-53-370 ................................................ 20
Other Authorities
Alfred Blumstein & Allen J. Beck,
Population Growth in U.S. Prisons,
1980-1996, 26 CRIME & JUST. 17
(1999) .................................................................... 28
Andrew D. Leipold, Is Mass
Incarceration Inevitable?, 56 AM.
CRIM. L. REV. 1579 (2019) .................................... 28
Barbara S. Vincent & Paul J. Holfer,
The Consequences of Mandatory
Minimum Prison Terms: A Summary
of Recent Findings 23 (1994) ............................... 28
viii
Daniel S. Nagin et al., Imprisonment
and Reoffending, 38 CRIME & JUST.
115 (2009) ............................................................. 28
David M. Zlotnick, The Future of
Federal Sentencing Policy, 79 U.
Colo. L. Rev. 1 (2008) ........................................... 19
Eric Martin, Hidden Consequences: The
Impact of Incarceration on
Dependent Children, 278 NAT’L.
INST. JUST. 10 (2017) ............................................ 28
H.R. Rep. No. 98-1073 ............................................... 27
Henry J. Friendly, Benchmarks 209
(1967) .................................................................... 30
Jeffrey T. Ulmer et al., Prosecutorial
Discretion and the Imposition of
Mandatory Minimum Sentences, 44
J. RES. CRIM. & DELINQ. 427 (2007) ..................... 29
La Raza, Disparate Impact of Federal
Mandatory Minimums on Minority
Communities in the United States
(2006) .................................................................... 28
Lucius T. Outlaw III, Time for a
Divorce: Uncoupling Drug Offenses
from Violent Offenses in Federal
Sentencing Law, Policy, and
Practice, 44 Am. J. Crim. L. 217, 234
(2017) .................................................................... 26
ix
Marc Mauer, The Impact of Mandatory
Minimums Penalties in Federal
Sentencing, 94 JUDICATURE 6 (2010) ....... 27, 28, 29
Michael Tonry, Less Imprisonment Is
No Doubt a Good Thing, More
Policing Is Not, 10 CRIMINOLOGY &
PUB. POL. 137 (2011) ........................................... 28
Michael Tonry, The Mostly Unintended
Effects of Mandatory Penalties: Two
Centuries of Consistent Findings, 38
CRIME & JUST. 65 (2009) ...................................... 27
New Oxford American Dictionary 915
(3d ed. 2010) ......................................................... 12
Webster’s II New College Dictionary
598 (3d ed. 2005) .................................................. 12
Rules
Supreme Court Rule 37.3 ............................................ 1
Supreme Court Rule 37.6 ............................................ 1
1
INTEREST OF AMICUS CURIAE 1
Amicus FAMM (formerly Families Against
Mandatory Minimums) is a national, nonprofit,
nonpartisan organization whose primary mission is to
promote fair and rational sentencing policies and to
challenge mandatory sentencing laws and the ensuing
inflexible and excessive penalties. Founded in 1991,
FAMM currently has more than 50,000 members
nationwide. By mobilizing prisoners and their families adversely affected by unjust sentences, FAMM
illuminates the human face of sentencing as it
advocates for state and federal sentencing reform.
FAMM advances its charitable purposes in part
through education of the general public and through
selected amicus filings in important cases.
In recognition of the destructive toll mandatory
minimums exact on FAMM’s members in prison, their
loved ones, and their communities, FAMM submits
this brief in support of Petitioner. The decision below
poses a serious risk to the viability of the categorical
method, which has long served to limit the application
of harsh mandatory minimum sentences and to
provide fair warning of what conduct can subject
individuals to such sentences. In light of the grave
harm mandatory minimums impose, FAMM is keenly
interested in ensuring they are used sparingly and
only in accordance with due process.
1
Pursuant to Supreme Court Rule 37.6, counsel for amicus
curiae states that no counsel for a party authored this brief in
whole or in part and no one other than amicus and its counsel
made a monetary contribution to fund the preparation or
submission of this brief. Pursuant to Supreme Court Rule 37.3,
counsel for amicus curiae states that counsel for Petitioner and
Respondent have both granted consent to the filing of this brief.
2
SUMMARY OF ARGUMENT
This Court has frequently reaffirmed application
of the categorical approach to determine whether a
prior conviction qualifies as a “violent felony” predicate offense under the Armed Career Criminal Act
(“ACCA”), a statute that requires imposition of a
fifteen-year mandatory minimum sentence for those
who possess firearms after three predicate offenses.
Taylor v. United States, 495 U.S. 575 (1990); see also
United States v. Stitt, 586 U.S. —, 139 S. Ct. 399, 405
(2018); Descamps v. United States, 570 U.S. 254, 257
(2013). Under the categorical approach, a trial court
looks “only to the statutory definitions of [a defendant’s] prior offenses, and not to particular facts
underlying those convictions” to determine whether a
prior offense constitutes a predicate under ACCA.
Taylor, 495 U.S. at 600. The proper application of that
approach, as detailed by this Court, requires courts to
“compare the elements of the crime of conviction with
the elements of the ‘generic’ version of the listed
offense—i.e., the offense as commonly understood.”
Mathis v. United States, 579 U.S. —, 136 S. Ct. 2243,
2247 (2016). If the elements of the crime of conviction
“are the same as, or narrower than, those of the
generic offense,” then the conviction counts as an
ACCA “violent felony” predicate. Id. But if the crime
of conviction “covers any more conduct than the
generic offense,” it is not an ACCA “violent felony”
predicate capable of triggering a mandatory minimum
sentence. Id. at 2248.
As a matter of statutory construction, due process,
and fundamental fairness, this same categorical
approach must also apply to 18 U.S.C.
§ 924(e)(2)(A)(ii), which—parallel to ACCA’s “violent
felony” provision—provides that certain “serious drug
3
offense[s]” are mandatory-minimum predicate offenses. The relevant language that requires the categorical approach in the “violent felony” prong similarly requires the same categorical approach for the
“serious drug offense” prong. And were there any
doubt as to the text’s plain meaning, applying the
categorical approach to Section 924(e)(2)(A)(ii) would
be warranted under numerous canons of statutory
construction, including avoidance of absurd statutory
interpretation and serious constitutional questions,
and the rule of lenity.
Petitioner is correct that the court below erred in
failing to apply the categorical approach as this Court
has described it; that is, the court of appeals did not
compare Petitioner’s crime of conviction to the generic
serious drug offense. See United States v. Shular, 736
Fed. Appx. 876 (11th Cir. 2018).
Instead, the
Eleventh Circuit, applying circuit precedent, looked
solely to whether a defendant’s prior conviction
“‘involv[es]’ … certain activities related to controlled
substances.” United States v. Smith, 775 F.3d 1262,
1267 (11th Cir. 2014). Disclaiming any need to
“search for the elements of ‘generic’ definitions of
‘serious drug offense’ and ‘controlled substance
offense,’” id., the Eleventh Circuit bypassed this key
component of the categorical approach and failed to
analyze either this Court’s ACCA precedent or Section
924(e)’s plain text. The result was the imposition of a
fifteen-year mandatory minimum sentence for
Petitioner based on underlying crimes of conviction
that under idiosyncratic Florida law, and quite unlike
the generic crime, lacked a mens rea element.
The government’s approach here—as well as its
defense of the Eleventh Circuit’s decision in Smith—
ignores ACCA’s plain text and this Court’s clear
4
precedent. It is also unduly capacious: unlike the
categorical approach, the government’s proffered test
is not grounded in the certainty that comes from
comparing the elements of the crime of conviction
with the elements of a “generic” crime. As a result,
the government’s approach to the “serious drug
offense” prong of Section 924(e) fails to provide
uniformity, predictability, and fair notice.
Indeed, the government’s position would result in
an unjust statutory scheme hardly faithful to this
Court’s prior rulings interpreting ACCA. It would
also cause mandatory minimums to proliferate at a
time when Congress is limiting them. See First Step
Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194
(2018). Simply put, if the government prevails in this
case, in States like Florida that lack a mens rea
requirement for certain drug offenses, including the
sale of a controlled substance, an individual could be
convicted and sentenced to a mandatory minimum
fifteen-year term based on a strict-liability statutory
scheme.
The categorical approach and its traditional
application are well worth protecting. This Court
should reverse.
ARGUMENT
I. The Eleventh Circuit Erred In Not Applying
The Traditional Categorical Approach To
Section 924(e)(2)(A)(ii).
A. The Eleventh Circuit Did Not Apply The
Traditional Categorical Approach
Articulated By This Court.
ACCA provides that anyone convicted pursuant to
18 U.S.C. § 922(g)—the felon-in-possession statute—
5
with three previous “violent felon[ies]” or “serious
drug offense[s]” is subject to a fifteen-year mandatory
minimum sentence. 18 U.S.C. § 924(e)(1). Section
924(e)(2), the provision at issue, sets forth what
offenses count as predicate “serious drug offense[s]”
and “violent felon[ies].” This Court has frequently
analyzed the statute’s violent felony prong—Section
924(e)(2)(B)—which defines “violent felony” as:
any crime punishable by imprisonment for a
term exceeding one year, or any act of
juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive
device that would be punishable by
imprisonment for such term if committed by
an adult, that—
(i) has as an element the use, attempted
use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion,
involves use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B). In particular, this Court has
considered whether a previous conviction counts as
“burglary” under the statute. See e.g., Taylor, 495
U.S. at 579-80; see Descamps, 570 U.S. at 258-59. And
each time this Court has held that courts must apply
the categorical approach by comparing the prior
offense to the “generic” definition of burglary to
determine whether a prior conviction counts as a
burglary predicate. See, e.g., Taylor, 495 U.S. at 602;
see Descamps, 570 U.S. at 257-58.
The categorical approach, as articulated by this
Court, has two essential components: First, courts
6
must look only to the elements of the previous
conviction, not the underlying facts, in assessing
whether that conviction constitutes an ACCA
predicate. As this Court has often said, “[t]he key” in
applying the categorical method is to look to
“elements, not facts.” Descamps, 570 U.S. at 261; see
also Mathis, 136 S. Ct. at 2248 (“Distinguishing
between elements and facts is [] central to ACCA’s
operation.”).
Second, courts must compare the
elements of the crime of conviction to the elements of
the generic crime. See Mathis, 136 S. Ct. at 2247;
Descamps, 570 U.S. at 261; Taylor, 495 U.S. at 602. If
the conviction matches the generic offense or “defines
the crime more narrowly,” the conviction counts as an
ACCA predicate. Descamps, 570 U.S. at 261. But if
the conviction “sweeps more broadly than the generic
crime,” it does not qualify as a predicate. Id.
In Descamps, for instance, this Court assessed
whether a conviction under California Penal Code
Ann. § 469 (West 2010) qualified as a “burglary” under
ACCA. The California statute provided that “a
‘person who enters’ certain locations ‘with intent to
commit grand or petit larceny or any felony is guilty
of burglary.’” Id. at 258-59. To determine if that crime
was an ACCA violent felony predicate, the Court
compared the California statute’s elements to the
generic elements of burglary: an “unlawful or
unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” Id. at 261
(citing Taylor, 495 U.S. at 598).
Because the
California offense lacked a key element—unlawful
entry—and therefore went “beyond the normal,
‘generic’ definition of burglary,” it was not an ACCA
predicate. Id. at 265.
7
At issue here is whether this same categorical
approach applies to the “serious drug offense” prong of
the ACCA—which is defined as follows:
(i) an offense under the Controlled
Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export
Act (21 U.S.C. 951 et seq.), or chapter 705 of
title 46 for which a maximum term of
imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving
manufacturing, distributing, or possessing
with intent to manufacture or distribute, a
controlled substance (as defined in section
102 of the Controlled Substances Act (21
U.S.C. 802)), for which a maximum term of
imprisonment of ten years or more is
prescribed by law.
18 U.S.C. § 924(e)(2)(A).
As shown infra Section I.B, the categorical
approach this Court has applied to the “violent felony”
predicate should, as a matter of statutory
construction, apply with equal force to ACCA’s
“serious drug offense” predicate. The government
seemingly agrees that “the [categorical] approach is
required here.” U.S. Br. at 9-10. But the parties vary
significantly in how the categorical approach works.
The government agrees only to the first prong: courts
should look to elements, not underlying circumstances, of the crime of conviction. The government,
however, disagrees that those elements should be
compared to the generic version of serious drug
offenses—the categorical approach’s second prong.
Defending the Eleventh Circuit’s approach, the
government contends that courts should look solely to
8
whether the crime of conviction “‘involv[es]’ … certain
activities related to controlled substances,” Smith,
775 F.3d at 1267, with no need to compare the prior
offense to the elements of a “generic” crime listed in
Section 924(e)(2)(A)(ii)—i.e., “manufacturing, distributing, or possessing with intent to manufacture or
distribute, a controlled substance,” 18 U.S.C.
§ 924(e)(2)(A)(ii); U.S. Br. at 10 (arguing Section
924(e)(2)(A)(ii) only requires courts to determine “on a
categorical basis whether the state-law predicate
offense ‘involves’ the conduct specified in [the statute],
rather than whether the state-law offense ‘is’
completely equivalent to … the definition of a generic
crime.”).
The differences between Petitioner’s categorical
approach and the government’s are significant.
Under Petitioner’s approach, a state offense will only
qualify as Section 924(e)(2)(A)(ii) predicate if it has
the same elements as the generic definition of “manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.”
But the government’s iteration would greatly expand
the state offenses that constitute ACCA predicates,
sweeping in any state offense that involves the act of
“manufacturing, distributing, or possessing with
intent to manufacture or distribute, a controlled substance,” irrespective of whether the elements for the
state offense are broader than those of the related
generic offense.
Take the Florida statute underlying Petitioner’s
prior convictions: Florida Statute § 893.13 makes it
unlawful for a person to “sell, manufacture, or deliver,
or possess with intent to sell, manufacture, or deliver,
a controlled substance.” Applying the traditional categorical method, a court would take the Florida crime
9
and compare it to a generic analogue like possession
with intent to sell. The generic version of that crime
includes three elements: (1) possession of the
controlled substance; (2) knowledge that the item
possessed was a controlled substance; and (3) intent
to sell the substance. United States v. Randall, 171
F.3d 195, 209 (4th Cir. 1999); see McFadden v. United
States, 576 U.S. —, 135 S. Ct. 2298, 2302 (2015)
(holding federal possession with intent to sell statute
requires knowledge that item is a controlled
substance). The Florida statute, on the other hand,
includes only two of those generic elements: (1) possession of a controlled substance and (2) intent to sell
it. Fla. Stat. § 893.13. The statute makes clear that—
unlike with the generic crime—“knowledge of the
illicit nature of a controlled substance is not an element of any offense under this chapter.” Fla. Stat.
§ 893.101(2) (emphasis added). Under the traditional
categorical approach, then, a Section 893.13 conviction cannot serve as an ACCA predicate, because
that statute, in common with only two other states,
State v. Adkins, 96 So.3d 412, 423 n.1 (Fla. 2012)
(Pariente, J., concurring), lacks a mens rea and thus
sweeps far broader than the generic crime for possession with intent to sell.
The government’s approach would produce a far
different, unpredictable, and unfair result. Applying
the Eleventh Circuit’s decision in Smith, a trial court
would simply ask if a conviction under Section 893.13
“involved” the act of possession with intent to sell.
That completely eschews the core of the categorical
approach. It does not require courts to place crimes
into generic categories or to compare the elements of
any generic crime with the crime of conviction.
Section 893.13 cannot be properly categorized as prohibiting possession with intent to sell because,
10
contrary to long-standing principles of criminal law, it
lacks any mens rea requirement. Rehaif v. United
States, 588 U.S. —, 139 S. Ct. 2191, 2195 (2019);
Morissette v. United States, 342 U.S. 246, 256-58
(1952). Nonetheless, the Eleventh Circuit held, and
the government argues, that a conviction for this
strict-liability crime should qualify as an ACCA
predicate.
B. Section 924(e)(2)(A)(ii)’s Plain Text
Requires The Categorical Approach’s
Traditional Application.
For many of the reasons this Court has repeatedly
applied the categorical approach to the “violent
felony” predicate in Section 924(e)(2)(B), the categorical approach should also apply to the “serious
drug offense” predicate embodied in Section
924(e)(2)(A)(ii) of ACCA.
This Court first considered Section 924(e) in
Taylor, which determined which offenses qualify as
“burglary” under ACCA’s violent felony prong—
Section 924(e)(2)(B)(ii). Taylor applied the categorical
method: a State conviction “constitutes ‘burglary’ …
if … its statutory definition substantially corresponds
to ‘generic’ burglary.” 495 U.S. at 602.
Taylor rested to a large extent on Section
924(e)(1)’s plain language. In particular, the Court
reasoned that because Section (e)(1) “refers to ‘a
person who … has three previous convictions’ for—not
a person who has committed—three previous violent
felonies or drug offenses,” the categorical approach is
statutorily commanded. Taylor, 495 U.S. at 600
(emphasis added). This Court further stressed that
(e)(1)’s key language “supports the inference that Congress intended the sentencing court to look only to the
11
fact that the defendant had been convicted of crimes
falling within certain categories, and not to the facts
underlying the prior convictions.” Id. The text’s focus
on the crime of conviction, Taylor instructs, shows
that Congress meant for courts to look to the elements
of the prior offense, not solely at the offense as defined
by the States or the underlying facts of a prior crime.
495 U.S. at 590-92, 600-01.
This Court was right to apply the categorical
approach to Section 924(e)(2)(B), and there is no
reason to treat subsection (e)(2)(A)—the “serious drug
offense” predicate—any differently.
Sections
924(e)(2)(A) and (B) are governed by the same prefatory clause, Section 924(e)(1), which includes the
generic term “conviction” on which Taylor focused.
495 U.S., at 600. That focus makes sense. Section
(e)(2) is derivative of (e)(1): Section (e)(2) defines
“violent felony” ((e)(2)(B)) and “serious drug offense”
((e)(2)(A)) to determine whether a mandatory minimum sentence will be imposed under Section (e)(1).
As this Court recognized in an analogous context just
last term, a prefatory section of a statute must “retain
[the] same meaning” when applied across derivative
subsections. United States v. Davis, 588 U.S. —, 139
S. Ct. 2319, 2328 (2019).
Moreover, subsection (e)(2)(A)(ii)’s specific language, which identifies the relevant serious drug
“offense under State law,” (emphasis added) confirms
that the categorical approach this Court has applied
to Section 924(e)’s other subparts should apply here.
“Simple references to ‘conviction,’ ‘felony,’ or ‘offense,’
… are ‘read naturally’ to denote the ‘crime as generally
committed.’” Sessions v. Dimaya, 584 U.S. —, 138 S.
Ct. 1204, 1217 (2018) (plurality opinion) (internal
citations omitted). In other words—just as the word
12
“conviction” in Section (e)(1) evidences the need for
application of the categorical method in all of section
(e), so, too, does the word “offense” used in Section
(e)(2)(A), which defines a “serious drug offense.”
The government’s main textual argument in
response is that the term “involving” in Section
924(e)(2)(A)(ii) permits a broader categorical
approach. U.S. Br. at 9-10. Not so. “Involving” means
to “include (something) as a necessary part or result.”
New Oxford American Dictionary 915 (3d ed. 2010);
Webster’s II New College Dictionary 598 (3d ed. 2005)
(“To have as an essential feature … : ENTAIL”). That
definition does not suggest any change in the
application of the categorical approach but rather
comports with its traditional application. In fact,
although the government purports to agree that the
categorical
approach
applies
to
Section
924(e)(2)(A)(ii), the government’s interpretation of the
term “involving” is not about categorizing crimes and
comparing elements.
Rather, the government’s
approach invites judges to decide whether a crime—
even a disfavored strict-liability crime—normally
involves the conduct described in Section
924(e)(2)(A)(ii). That is not how this Court has ever
applied the categorical approach to enumerated
offenses. Although the government claims to accept
the categorical approach’s “central feature”—a focus
on the crime of conviction’s elements—the government rejects the approach’s “basic method”—comparing the crime of conviction to its generic analogue.
Descamps, 570 U.S. at 263.
Contrary to the government’s position, the language of Section 924(e)(2)(A)(ii) tracks nearly verbatim
to this Court’s traditional formulation of the categorical approach—including use of the word “involve.”
13
As the Court has explained, under the categorical
approach, a court determines if the elements of the
state offense “ ‘necessarily’ involve[] … facts equating
to [the generic offense].” Shepard v. United States,
544 U.S. 13, 24 (2005) (plurality opinion) (emphasis
added); see Moncrieffe v. Holder, 569 U.S. 184, 190-91
(2013) (describing categorical approach as examining
what “the state conviction necessarily involved”—i.e.,
whether the “least of th[e] acts criminalized” by state
crime “are encompassed by the generic” offense)
(emphasis added; internal quotations, citations
omitted). Cf. Scheidler v. Nat’l Org. for Women, Inc.,
537 U.S. 393, 409 (2003) (holding a statute “involves”
extortion if can be “generically classified” as such).
Use of the word “involve” in Section 924(e)(2)(A)(ii) is
no reason to depart from the traditional categorical
approach, which this Court has consistently applied
to other statutes—including those that use the word
“involve”2—and to which the lower courts have
applied other provisions of ACCA that use that word,
too.3
2
Scheidler, 537 U.S. at 409 (applying categorical approach to
18 U.S.C. § 1961(1) even though it uses the term “involving”); see
Lockhart v. United States, 577 U.S. —, 136 S. Ct. 958, 968 (2016)
(suggesting the categorical approach would apply to 18 U.S.C.
§ 2252(b)(2) even though it uses term “relating to”); Kawashima
v. Holder, 565 U.S. 478, 483 (2012) (applying categorical
approach to term “involves fraud or deceit” in 8 U.S.C.
§ 1101(a)(43)(M)(i)).
3
Under Section 924(e)(2)(B)(ii), a state offense that “involves
use of explosives” qualifies as “violent felony.” 18 U.S.C.
§ 924(e)(2)(B)(ii) (emphasis added). Lower courts have applied
the traditional categorical approach to the “explosives” predicate.
See, e.g., United States v. Wilfong, 733 Fed. Appx. 920, 928-29,
929 n.6 (10th Cir. 2018) (concluding the crime of making a bomb
threat did not qualify as a violent felony because it was not a
categorical match with the generic definition of “use of explo-
14
Likewise erroneous is the Eleventh Circuit’s
contention that a sentencing court can ignore the
“generic” serious drug offense crimes because “[n]o
element of mens rea with respect to the illicit nature
of the controlled substance is expressed or implied by”
the statute’s text. Smith, 775 F.3d at 1267. Section
924(e)(2) does not purport to identify the required
elements for listed offenses, whether they be violent
felonies or serious drug offenses. See Taylor, 495 U.S.
at 597. Instead, for listed offenses—e.g., “burglary” or
“possession” of a controlled substance “with intent to
distribute”—the elements are those found in the
generic version of the offense. Id. at 598. The
Eleventh Circuit effectively treated (e)(2)(A)(ii) as an
“elements” clause. But only (e)(2)(B), the violent
felony definition, has an elements clause. 18 U.S.C.
§ 924(e)(2)(B)(i) (applying to offenses that have “as an
element the use, attempted use, or threatened use of
physical force against the person of another”). If
Congress had meant for (e)(2)(A)(ii) to operate as an
elements clause—one dispensing with the need for a
mens rea element in the state offense—it would have
tracked (e)(2)(B)(i) by referring to a state offense that
“has as an element manufacturing, distributing, or
possessing with intent to manufacture or distribute a
controlled substance.” But Congress did not draft
(e)(2)(A)(ii) using the language of a clause that sets
forth the minimum requisite elements. See Russello
v. United States, 464 U.S. 16, 23 (1983) (“Where
Congress includes particular language in one section
sives”); cf. United States v. Fish, 368 F.3d 1200, 1205 (9th Cir.
2004) (holding term “involves use of explosives” in § 4B1.2(a) of
Federal Sentencing Guidelines requires crime of conviction to be
a categorical match with generic definition of “use of explosives”),
abrogated on other grounds by United States v. Barker, 689 Fed.
Appx. 555 (9th Cir. 2017).
15
of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion
or exclusion.”) (quoting United States v. Wong Kim Bo,
472 F.2d 720, 722 (5th Cir. 1972)).
The Eleventh Circuit’s interpretation of ACCA also
contradicts the presumption of scienter that attaches
to criminal laws. Rehaif, 139 S. Ct. at 2195; Staples
v. United States, 511 U.S. 600, 605 (1994) (applying
presumption of mens rea in interpreting criminal
statutes).4 This presumption is especially strong here
because most drug statutes, including those referenced in Section 924(e)(2)(A), require mens rea.
McFadden, 135 S. Ct. at 2302 (holding 21 U.S.C.
§ 841(a)(1) requires proof that defendant had
knowledge). Additionally, when the “serious drug
offense” prong was added to ACCA in 1986, almost
every state required mens rea as an element of their
respective drug crimes. See Pet. Br. at 21-22. Similarly, the predicate convictions identified in Section
924(e)(2)(A)(i) refer to specific laws (e.g., the Con4
Courts have routinely concluded that state offenses are not
predicates under ACCA (or similar statutes) if the mens rea
element under the state statute is broader than the mens rea
element for the generic crime. See, e.g., United States v. Windley,
864 F.3d 36, 37-39 (1st Cir. 2017) (concluding the Massachusetts
assault and battery with a dangerous weapon offense is not a
categorical match under Section 924(e)(2)(B)(i), because it has a
broader mens rea requirement); cf. United States v. Estrella, 758
F.3d 1239, 1253-54 (11th Cir. 2014) (concluding when the mens
rea of the generic crime and the crime of conviction do not match,
the crime of conviction is not a predicate offense under the
Sentencing Guidelines). One lower court has squarely held that
a state offense is not a serious drug offense under Section
924(e)(2)(A)(ii) because the mens rea element in the state offense
was broader. See United States v. Franklin, 904 F.3d 793, 802803 (9th Cir. 2018).
16
trolled Substances Act) that unquestionably contain
an element of mens rea. Id. at 16-17, 16 n.6 (citing 21
U.S.C. § 801 et seq.; 21 U.S.C. § 951 et seq.). The
Eleventh Circuit’s view that no mental state is
implied by ACCA’s definition of its predicate offenses
begs inconsistent application of the categorical
approach to different predicate offenses without any
rational, textual basis.
Section 924(e)’s text limits the definition of
“serious drug offense” to the generic crimes of “manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance.”
§ 924(e)(2)(A)(ii). The categorical approach enumerated by the Supreme Court in the “violent felony”
prong of Section 924(e)(2)(B) applies with equal force
to the “serious drug offense” predicate in Section
924(e)(2)(A).
C. The Eleventh Circuit’s Version Of The
Categorical Approach Will Undercut
Uniformity And Consistency In ACCA’s
Application.
Applying the categorical approach to Section
924(e)(2)(A)(ii) also supports the approach’s underlying purposes—uniformity, “efficiency, fairness, and
predictability.” Mellouli v. Lynch, 575 U.S. —, 135 S.
Ct. 1980, 1987 (2015); see Taylor, 495 U.S. at 591
(concluding Congress intended for there to be
“uniform categorical definitions” of the predicate
offenses). By listing a set of crimes that could serve
as mandatory minimum predicates—including “serious drug offense[s]”—Congress intended to establish
uniform and consistent categories of predicates. See
Taylor, 495 U.S. at 597. That way, only individuals
who have three previous convictions for a specific
“offense” identified in ACCA would qualify for the
17
Act’s mandatory minimum sentencing. See Chambers
v. United States, 555 U.S. 122, 126 (2009) (The
“categorical approach requires courts to choose the
right category”), abrogated on other grounds by
Johnson v. United States, 576 U.S. —, 135 S. Ct. 2551
(2015).
In contrast, the Eleventh Circuit’s expansive
application of the categorical approach, supported by
the government, frustrates the categorical approach’s
chief purposes by sowing confusion and conflict.
Indeed, the lower courts that have adopted the
government’s position have created different standards for articulating it, sapping it of any uniform or
predictable application. For example, some lower
courts have concluded that a crime “involves” the
conduct described in Section 924(e)(2)(A)(ii) when it
“relate[s] to or connect[s] with” drug manufacturing,
distribution, or possession with intent to manufacture
or distribute. See United States v. Bynum, 669 F.3d
880, 886 (8th Cir. 2012) (internal citations omitted);
see also United States v. Whindleton, 797 F.3d 105,
109 (1st Cir. 2015). Other courts have put it slightly
differently: a state offense is an ACCA predicate
when manufacturing, distribution, or possession with
intent to manufacture or distribute, a controlled substance, is an “inherent part or result of the … crime of
conviction.” United States v. Brandon, 247 F.3d 186,
191 (4th Cir. 2001) (relying on pre-Johnson residual
clause cases to interpret the term “involving”). The
government’s proffered categorical test has been
applied by some courts to include as a “serious drug
offense” under Section 924(e)(2)(A) crimes that are not
manufacturing, distributing, or possessing with
intent to manufacture or distribute a controlled substance. See, e.g., United States v. White, 837 F.3d
1225, 1235 (11th Cir. 2016) (concluding a trafficking
18
conviction for mere possession of “at least 28 grams of
cocaine constitutes a serious drug offense”). How one
could possibly anticipate under these varying standards what crimes could constitute ACCA predicates,
these courts do not (and cannot) say. That shortcoming is significant. See Taylor, 495 U.S. at 592
(recognizing need for the fair notice the categorical
method, as traditionally applied, provides).5
Take, for example, the Eighth Circuit’s application
of the word “involving” in Bynum: a state offense
“involve[s]” the conduct described in Section
924(e)(2)(A)(ii) when it constitutes an act to
“intentionally enter the highly dangerous drug distribution world.” 669 F.3d at 886 (internal citations
omitted). Under that interpretation, the Eighth Circuit held that a state statute that criminalizes even a
non-genuine offer to sell drugs, made without any
actual intent to distribute a controlled substance,
constitutes a “serious drug offense.” Id. at 887. This
reading of the term “involving” would “stop nowhere”—any crime related to drugs, even tangentially, would apply under that approach. Mellouli,
135 S. Ct. at 1990 (internal quotations and citations
omitted).
5
The government has previously argued a state offense
“involves” the conduct described in Section 924(e)(2)(A)(ii) when
it simply “includes the words ‘manufacturing, distributing, or
possessing [with intent to manufacture or distribute].’”
Franklin, 904 F.3d at 800. But this approach—ungrounded in
any comparison to a generic crime—was expressly rejected in
Taylor in analyzing subsection 924(e)(2)(B). There, this Court
concluded that if the definition of “serious drug offense” was
dependent on “labels employed by various States[]” it would lead
to “odd” and inconsistent results. 495 U.S. at 591-92.
19
Indeed, many state offenses do not include “manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance” as
elements but could still qualify as ACCA predicates
under the government’s approach. See, e.g., Fla. Stat.
§ 893.1351(2) (criminalizing someone having actual or
constructive possession of a place they know is used to
traffic or manufacture drugs); see also United States
v. Eason, 919 F.3d 385, 391-92 (6th Cir. 2019) (holding
that “purchasing an ingredient that could be used to
manufacture methamphetamine with a reckless disregard of its intended use involves the manufacture of
a controlled substance”).6 Members of this Court have
argued that “drugs relate to [violent] crime,” Harmelin
v. Michigan, 501 U.S. 957, 1003 (1991) (Kennedy, J.,
concurring) (emphasis added); accord Mellouli, 135 S.
Ct. at 1990 (recognizing relationship between “convictions for offenses related to drug activity more generally, such as gun possession”), suggesting that a
plethora of violent crimes having only tangential
relationship to the “highly dangerous drug … world,”
Bynum, 669 F.3d at 866, might apply as a “serious
drug offense” under ACCA. Lower courts have even
found violent crimes that “relate[] to or connect[]
with,” id., the conduct described in Section
924(e)(2)(A)(ii) qualify as serious drug offenses. See,
e.g., United States v. Gibbs, 656 F.3d 180, 188-89 (3d
6
Under ACCA, many state drug laws—even petty ones—
already qualify as predicates because many have ten-year
maximum sentences. David M. Zlotnick, The Future of Federal
Sentencing Policy, 79 U. Colo. L. Rev. 1, 53 (2008). The
government’s approach would sweep up as ACCA predicates
numerous lesser crimes, like mere possession crimes that have
harsh maximum sentences.
See, e.g., S.C. Stat. § 44-53370(e)(2)(A) (providing a ten-year maximum sentence for mere
possession of ten grams of cocaine).
20
Cir. 2011) (holding a conviction for wearing body
armor while committing a felony can qualify as a
serious drug offense where felony in question was
possession with intent to deliver drugs). That unbounded interpretation would potentially collapse the
“violent felony” and “serious drug offense” predicates,
resulting in improper statutory redundancy. See
Marinello v. United States, 584 U.S. —, 138 S. Ct.
1101, 1107 (2018); Taylor, 495 U.S. at 597.
In sharp contrast, under the traditional categorical
approach, whether the defendant is exposed to Section
924(e)(2)(A)(ii)’s mandatory minimum requirement is
clear and certain on the face of the indictment: If the
defendant has committed an offense under a State law
that meets the generic definition of manufacturing,
distributing, or possessing with intent to manufacture
or distribute, a controlled substance, then Section
924(e)(2)(A)(ii) is satisfied. But if the charged predicate offense has elements that are different from or
broader than those in the generic crime, Section
924(e)(2)(A)(ii) is not satisfied. This predictability and
clarity provides constitutionally mandated fair notice
to defendants and cabins the discretion of prosecutors
and judges. See infra Section II. In short, the traditional categorical approach is predictable and uniform.
D. The Eleventh Circuit’s Expansive
Interpretation Of Section 924(e)(2)(A)
Raises Serious Practical And
Constitutional Concerns.
Apart from contradicting the statute’s text and
purposes, the government’s approach would lead to
absurd results, raise serious constitutional issues,
and violate the rule of lenity applied in criminal cases.
21
1. Absurdity. This Court has expressly declined to
adopt “unqualified[]” and limitless interpretations of
“woolly” statutory phrases. Pub. Citizen v. U.S. Dep’t
of Justice, 491 U.S. 440, 452 (1989); accord Mellouli,
135 S. Ct. at 1986, 1989-91 (rejecting government’s
“sweeping interpretation” of “relating to” in an immigration statute “in favor of a narrower reading”—the
categorical approach) (internal quotations and citations omitted). But the government’s interpretation
here would do just that. Defining “involving” to mean
“relating to,” or something similar—as the government and lower courts have done—would create
boundless indeterminacy. See Mellouli, 135 S. Ct. at
1990 (emphasizing the phrase “relating to” is “broad”
and “indeterminate”) (internal quotations and
citations omitted); cf. Lockhart, 136 S. Ct. at 968
(concluding using the traditional categorical approach
with a statute that uses the term “relating to” would
prevent “bizarre or unexpected state offenses” from
becoming predicates). In fact, such an interpretation
would yield a mandatory minimum sentencing regime
so expansive as to be absurd, and would expand the
“serious drug offense” predicate to encompass a large
swath of crimes neither contem-plated by the plain
language of ACCA nor encom-passed in the
categorical method’s normal application.
2. Constitutional Avoidance. The government’s
interpretation would also result in a statute plagued
by ambiguity and vagueness, raising “serious constitutional doubts.” Jennings v. Rodriguez, 583 U.S. —,
138 S. Ct. 830, 836 (2018). In Johnson, this Court held
that the residual clause in Section 924(e)(2)(B)—
which defines a violent felony as any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another,” 18 U.S.C.
§ 924(e)(2)(B)(ii)—was unconstitutionally vague be-
22
cause it left “grave uncertainty about how to estimate
the risk posed by a crime.” 135 S. Ct. at 2557. Unlike
the traditional categorical approach—where judges
compare actual prior convictions against the elements
of the actual generic crimes—the residual clause
required judges to assess “risk” based on a “judicially
imagined ‘ordinary case’ of a crime.” Id. Leaving
sentencing to judicial imagination “leaves uncertainty
about how much risk it takes for a crime to qualify as
a violent felony.” Id. at 2558.
The government’s interpretation of Section
924(e)(2)(B) presents this fundamental problem. It
would leave individuals convicted of crimes somehow
related to drug distribution in the dark as to whether
their conviction qualifies as an ACCA sentenceenhancing predicate. Davis, 139 S. Ct. at 2325;
McBoyle v. United States, 283 U.S. 25, 27 (1931)
(Holmes, J.) (Criminal laws must give “fair warning
… of what the law intends to do if a certain line is
passed.”). Whether a conviction is or is not a “serious
drug offense” under Section 924(e) will depend entirely on a judge’s assessment of whether a crime
ordinarily involves “manufacturing, distributing, or
possessing with the intent to manufacture or distribute, a controlled substance.” Without an identifiable
guidepost, judges will arrive at different answers. See
Dimaya, 138 S. Ct. at 1212 (emphasizing vagueness
doctrine “insist[s] that a statute provide standards to
govern the actions of police officers, prosecutors,
juries, and judges”).
These vagueness concerns are not merely
theoretical; they are already playing out in the lower
courts’ interpretations of Section 924(e)(2)(B)(ii).
Compare Brandon, 247 F.3d at 195-96 (holding a
conviction for possession under North Carolina’s drug
23
trafficking law is not a serious drug offense because it
only requires possession of 28 grams of cocaine); with
White, 837 F.3d at 1235 (concluding a conviction for
possession under Alabama’s drug trafficking law is a
serious drug offense even though it only requires possession of 28 grams of cocaine); see supra Section I.C.
This type of uncertainty led this Court to hold ACCA’s
residual clause unconstitutionally vague. Johnson,
135 S. Ct. at 2560 (stressing the residual clause has
“created numerous splits among the lower federal
courts, where it has proved nearly impossible to apply
consistently”) (internal quotations omitted); id. (“The
most telling feature of the lower courts’ decisions is …
pervasive disagreement about the nature of the
inquiry one is supposed to conduct and the kinds of
factors one is supposed to consider.”).7
The government’s interpretation of “involving” has
already generated ambiguity and vagueness in lower
courts. If this Court adopts that interpretation, that
indeterminacy will only proliferate. This Court
should decline to adopt such an approach and avoid
7
The government claims seven other circuits have adopted the
Eleventh Circuit’s interpretation, U.S. Br. at 11, but many of
these decisions were issued before Johnson and Mellouli. See,
e.g., United States v. King, 325 F.3d 110, 113 (2d Cir. 2003).
Johnson rejected as unconstitutionally vague the residual-clause
approach some courts used to take to determine the nature of a
“serious drug felony.” See, e.g., Brandon, 247 F.3d at 191
(explaining the standard is “whether the abstract crime
intrinsically involves the proscribed conduct”). And Mellouli—
decided after King—expressly rejected in an analogous context
the use of such expansive interpretations as that the government
advances here.
24
the ensuing serious constitutional
Jennings, 138 S. Ct. at 842.8
questions.
3. Lenity. If the plain language of a statute is
ambiguous, “doubts are resolved in favor of the
defendant.” United States v. Bass, 404 U.S. 336, 348
(1971); see Davis, 139 S. Ct. at 2333. This rule of
lenity—much like the vagueness doctrine—rests on
notions of fair notice and separation of powers. Id.
This rule reflects a historical principle of criminal law:
“serious[] criminal penalties” that “represent[] the
moral condemnation of the community” should only be
imposed when Congress has spoken “plainly and
unmistakably.” Bass, 404 U.S. at 348.
Here, the government’s proposed expansive
application of the categorical approach will classify a
great number more state offenses as ACCA predicates. This, in turn will increase the number of mandatory minimum sentences district courts will impose
and exacerbate the already serious deleterious implications of mandatory minimum sentences—including,
as in this case, by sweeping into the fold crimes that
8
The government’s position also raises Sixth Amendment
issues to the extent it invites judges to make factual findings
about the nature of a particular crime to trigger a mandatory
minimum and increase the available statutory maximum
sentence. See Mathis, 136 S. Ct. at 2252. The government claims
its version of the categorical approach does not require courts to
look to the facts underlying the conviction, but in practice that
interpretation actively pushes courts to look at underlying facts.
See Brandon, 247 F.3d at 191-94 (assuming if the amount of
drugs possessed was large enough, the crime would “involve[]”
possession with intent to distribute; recognizing state statute at
issue gave range of quantities (28-200 grams); and looking to presentencing report to determine the actual amount of drugs
defendant had possessed).
25
lack mens rea requirements.9 By contrast, the traditional categorical approach is narrower: The crime of
conviction will only qualify as a predicate if it is a
“match” with the generic offense. Mathis, 136 S. Ct.
at 2248. This, in turn, “serves to narrow the scope of
[ACCA’s] mandatory sentencing enhancement,” thus
limiting the number of individuals subjected to longer
sentences. United States v. Faust, 853 F.3d 39, 65 (1st
Cir. 2017) (Barron, J., concurring).
The categorical approach also cabins prosecutorial
discretion. It provides pre-trial certainty to (i) prosecutors, who will know which state convictions constitute predicate offenses and can make more informed
and reasonable charging decisions, limiting prosecutorial overreach; (ii) defendants and defense
counsel, who will know whether the charged predicate
conviction will automatically satisfy Section 924(e),
permitting more intelligent and informed plea
bargaining decisions; and (iii) district judges, who will
know whether a prior conviction will automatically
9
Strict-liability crimes—those that require no mens rea—are
generally disfavored. Rehaif, 139 S. Ct. at 2195; Staples, 511
U.S. at 605; cf. United States v. Park, 421 U.S. 658 (1975) (strict
liability permitted for certain health and safety offenses because
“[t]he duty imposed by Congress on responsible corporate agents
is … one that requires the highest standard of foresight and
vigilance”). In fact, only two states besides Florida—Washington
and North Dakota—have eliminated the mens rea requirement
from their drug laws. Adkins, 96 So.3d at 429 (Pariente, J.,
concurring). As this Court has said, the “existence of a mens rea
is the rule of, rather than the exception to, the principles of
Anglo-American criminal jurisprudence.” United States v. U.S.
Gypsum Co., 438 U.S. 422, 436 (1978) (internal citations
omitted). Allowing convictions for crimes without a mens rea
requirement to form the basis of a sentencing enhancement
would threaten to make the exception the rule.
26
satisfy Section 924(e), simplifying and enhancing the
predictability of sentencing determinations.
To the extent the Court finds Section
924(e)(2)(A)(ii) ambiguous, the rule of lenity favors
rejection of the government’s and Eleventh Circuit’s
version of the categorical approach.
II. The Eleventh Circuit’s Version Of The
“Categorical Approach” Would Make
Mandatory Minimums The Rule, Not The
Exception, Proliferating Their Detrimental
Effects Without Basis.
The government’s construction of Section
924(e)(2)(A) is expansive and dangerously delimited.
See supra Section I.C. Under its interpretation, even
state offenses that do not mention “manufacturing,
distributing, or possessing with intent to manufacture
or distribute, a controlled substance,” could count as
predicate offenses under ACCA. A broad swath of
state offenses would potentially fall within ACCA’s
ambit, drastically increasing the potential for mandatory minimum sentences.10
10
Drug crimes are among the most prosecuted in federal and
state court. In the federal system, there were almost 25,000 drug
cases filed in 2017, which was more than 30% of the criminal
cases that year. See Table D-2, U.S. District Courts - Criminal
Defendants Commenced (Excluding Transfers), by Offense,
During the 12-Month Periods Ending December 31, 2013
Through 2017, Admin. Office of the U.S. Courts (Dec. 31, 2017).
In Florida, there were 49,300 drug cases filed in FY 2016-17,
which made up more than 28% of its felony docket. Fla. Office of
the State Courts Adm’r, Circuit Criminal Overview 3-2-3-3.
Consequently, “[w]hile the reach of enhanced penalties for
‘violent’ offenses shrinks, the reach for drug offenses has only
known growth.” Lucius T. Outlaw III, Time for a Divorce:
Uncoupling Drug Offenses from Violent Offenses in Federal
27
That is not the regime Congress adopted (or
intended) with Section 924(e). In fact, when ACCA
was originally passed in 1984, Congress intended to
target only a “small group” of the most violent
offenders. See H.R. Rep. No. 98-1073, at 2-3 (noting
“[b]oth Congress and local prosecutors around the
nation have recognized the importance of incapacitating [the small group of] repeat offenders [responsible for a large number of crimes]”); Taylor, 495 U.S.
at 587-88 (noting Congress focused its efforts on
career offenders “who commit a large number of fairly
serious crimes as their means of livelihood” and “who
… present at least a potential threat of harm to
persons”). And even when ACCA was expanded in
1986 to include “serious” and repeat drug offenders,
Congress never suggested it intended to punish prior
drug offenders more broadly and severely than those
who committed “violent felonies.”
There is no logical reason to impose such a reading
on the statute either. Indeed, the justifications for
mandatory minimums are much weaker as applied to
the broad swaths of offenders whose conduct only in
some expansive sense “involves” drugs. Generally,
the deterrence value of mandatory minimums is statistically nonexistent. See Michael Tonry, The Mostly
Unintended Effects of Mandatory Penalties: Two
Centuries of Consistent Findings, 38 CRIME & JUST.
65, 68 (2009). And mandatory minimums are utterly
ineffective at combating drug offenses. Marc Mauer,
The Impact of Mandatory Minimums Penalties in
Federal Sentencing, 94 JUDICATURE 6, at 6-7 (2010).
Nor do mandatory minimums advance any relevant
benefits of incapacitation: Low-level drug offenders—
Sentencing Law, Policy, and Practice, 44 AM. J. CRIM. L. 217, 234
(2017).
28
those who would be most impacted if the government’s
view prevails—are usually replaced quickly in their
criminal enterprises, rendering any societal benefits
of incapacitation minimal at best. Alfred Blumstein
& Allen J. Beck, Population Growth in U.S. Prisons,
1980-1996, 26 CRIME & JUST. 17, 57 (1999).
By contrast, the costs of mandatory minimum
sentences are severe. Longer sentences increase the
difficulties of reentry after release, as family and
community ties, connections to the job market, and
the development of job skills are increasingly frayed
by time spent behind bars. Andrew D. Leipold, Is
Mass Incarceration Inevitable?, 56 AM. CRIM. L. REV.
1579, 1586 (2019); Mauer, supra, at 7. Children of
incarcerated individuals are further harmed, as they
run greater risks of health and psychological
problems, lower economic well-being, and decreased
educational attainment. Eric Martin, Hidden Consequences: The Impact of Incarceration on Dependent
Children, 278 NAT’L. INST. JUST. 10, 10-16 (2017).
Mandatory minimums also engender distrust of the
criminal justice system, particularly in minority
communities, which are often most affected. See
FAMM & Nat’l Council of La Raza, Disparate Impact
of Federal Mandatory Minimums on Minority
Communities in the United States 3-4 (2006); Barbara
S. Vincent & Paul J. Holfer, The Consequences of
Mandatory Minimum Prison Terms: A Summary of
Recent Findings 23, (1994).
In fact, long mandatory terms may exacerbate
crime rather than reduce it. See Daniel S. Nagin et
al., Imprisonment and Reoffending, 38 CRIME & JUST.
115, 121 (2009); see also Michael Tonry, Less Imprisonment Is No Doubt a Good Thing, More Policing Is
Not, 10 CRIMINOLOGY & PUB. POL. 137, 137-38 (2011)
29
(“The effects of imprisonment on individual deterrence are most likely perverse; people sent to prison
tend to come out worse and more likely to reoffend
than if they had received a lesser punishment”). Mandatory minimum sentencing if anything increases
recidivism. Mauer, supra, at 7.
If mandatory minimums proliferate, the power to
sentence will shift even more from judges to
prosecutors—engendering more distrust in the criminal justice system. Wielding mandatory minimum
sentences, prosecutors can effectively “pre-set”
defendants’ sentences through charging decisions,
which are virtually unreviewable. See Bordenkircher
v. Hayes, 434 U.S. 357, 364 (1978) (“[T]he decision
whether or not to prosecute, and what charge to file …
generally rests entirely in [the prosecutor’s] discretion.”); Jeffrey T. Ulmer et al., Prosecutorial Discretion and the Imposition of Mandatory Minimum
Sentences, 44 J. RES. CRIM. & DELINQ. 427, 451 (2007)
(“Our findings support the long-suspected notion that
mandatory minimums are not mandatory at all but
simply substitute prosecutorial discretion for judicial
discretion.”).
At bottom, the government’s position would
undercut Congress’s rationale of sentencing the most
dangerous, frequent, and hardened offenders and
would directly conflict with the growing national
consensus that our country’s federal sentencing
regime for drug offenses is excessive. Indeed, Congress recently passed the First Step Act, broadly
reducing the length of mandatory minimums for
repeat drug offenders, both prospectively and in
certain cases retroactively. Pub. L. No. 115-391, 132
Stat. 5194. The government’s attempt to undo that
progress here—to increase the availability of
30
mandatory minimums for drug crimes—is not what
the law or legislative policy requires.
***
The Eleventh Circuit’s version of the categorical
approach, which the government asks this Court to
impose nationwide, undermines the limited system of
mandatory minimum penalties Congress enacted.
Mandatory minimums can have extremely detrimental and long-lasting impacts, and, as Congress
has recognized, should only apply in limited circumstances. As Judge Friendly explained more than
a half century ago: people should not “languish[] in
prison unless the lawmaker has clearly said they
should.” Henry J. Friendly, Benchmarks 209 (1967).
In this case, the traditional application of the
categorical approach ensures that only individuals
identified by Congress’s clear words will be punished.
Any other approach should be roundly rejected.
31
CONCLUSION
For the foregoing reasons, the judgment of the
court of appeals should be reversed.
Respectfully submitted,
MARY PRICE
FAMM FOUNDATION
1100 H Street, N.W.
Suite 1000
Washington, D.C. 20005
(202) 822-6700
DAVID DEBOLD
Counsel of Record
MATTHEW GUICE AIKEN
GIBSON, DUNN & CRUTCHER LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
(202) 955-8500
ddebold@gibsondunn.com
PETER GOLDBERGER
50 Rittenhouse Place
Ardmore, PA 19003
AVI WEITZMAN
peter.goldberger@verizon.net LEE R. CRAIN
GIBSON, DUNN & CRUTCHER LLP
200 Park Avenue
New York, NY 10166
(212) 351-4000
October 2, 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.