Cert Grant: Under ACCA, Is Maximum Punishment for Prior Offense Determined By Current Law or By Law In Effect at the Time of That Offense?

Under the ACCA, a "serious drug offense" is one carrying a maximum term of imprisonment of at least 10 years.  In determining whether a prior offense is a serious drug offense, does the court look at the maximum punishment authorized at the time the defendant committed the offense, or at the time of sentencing for the new federal offense?

That is the question on which the Supreme Court granted certiorari last week in McNeill v. United States, 10-5258.  And no, the case does not involve the situation where the maximum punishment for an offense was increased after the defendant committed the offense; in McNeill, the maximum punishment was actually reduced.  As you can see, opinions on the correct answer to the question presented could depend on whose defendant is being gored.

The question has produced a 2-2 circuit split.  The Fifth Circuit has held—in a situation in which the maximum was reduced and the reduced penalty was not made retroactive—that the court must look at the law in effect at the time of the prior offense, not at the current law.  United States v. Hinojosa, 349 F.3d 200 (2003).

Pleadings, etc. available at SCOTUSblog.