Tuesday, May 20, 2008

Applicable Recidivist Enhancements Determine "Maximum Term of Imprisonment" for ACCA "Serious Drug Offense" Predicate

United States v. Rodriquez, No. 06-1646 (U.S. May 19, 2008)

The Court has been struggling recently with the interpretation of the Armed Career Criminal Act. What's striking about these recent decisions is that they don't seem to apply any predictable or consistent framework for interpreting the poorly-drafted provisions of the ACCA, and that you're about as likely to predict the voting lineup by pulling the justices names out of a hat as you are by tracking their votes and reading their opinions in these cases. (see, e.g., Professor Anita Krishnakumar's ruminations on Begay and Rodriquez at Concurring Opinions). If anything, yesterday's decision in Rodriquez is the most perplexing of them all, as it includes a holding that doesn't seem at all reconcilable with the Court's recent explication of the rule of Apprendi (with the agreement of two Apprendi stalwarts, no less). But on the up side, it recognizes an important procedural limitation on the application of the ACCA, so you'll want to put the case on your to-read-soon list.

The ACCA, as you know, provides for an enhanced punishment for gun-possessing felons who have at least three prior convictions for a "violent felony" or "serious drug offense." An SDO is a drug offense "for which a maximum term of imprisonment of ten years or more is prescribed by law." The question is Rodriquez is whether the "maximum term of imprisonment" takes recidivist enhancements into account.

The question arose in Rodriquez's case because of his three prior Washington state convictions for delivery of a controlled substance (he also had two prior California residential burglary convictions). The relevant state statutes established a maximum sentence of five years for that basic offense, but also authorized a sentence of up to ten years for "[a]ny person convicted of a second or subsequent offense." The state judgment listed the maximum sentence as "ten years," but Rodriquez was sentenced to only 48 months on each count, which was apparently the maximum term authorized by the Washington sentencing guidelines.

The Court held---in an opinion written by Justice Alito for a six-robe majority---that the plain meaning of the terms "offense," "law," and "maximum term" mean that the "the maximum term prescribed by Washington law for at least two of respondent's state drug offenses was 10 years." In so holding, the Court reversed the Ninth Circuit's decision below, which had held that the "maximum term of imprisonment" under the ACCA is determined without regard to recidivist enhancements. The Court concluded that the Ninth Circuit's approach would lead to absurd results; for example, if Rodriquez had been sentenced to six years on the drug charges, the Ninth Circuit's approach would still treat those offenses as being subject only to a five-year maximum for ACCA purposes. The Court also found "[t]he Ninth Circuit's interpretation . . . inconsistent with the way in which the concept of the 'maximum term of imprisonment" is customarily understood by participants in the criminal justice process."

Rodriquez made a laundry list of arguments, all of which the Court rejected. (I'll only discuss a few of the more significant ones here.) He argued that the term "offense" typically refers only to the elements of a crime, and that because prior convictions are not typically treated as offense elements, they are not part of the "offense" for ACCA purposes. The Court, begging the question, simply responded that
[Rodriquez's] argument is not faithful to the statutory text. [He] reads ACCA as referring to "the maximum term of imprisonment prescribed by law" for a defendant with no prior convictions that trigger a recidivist enhancement, but that is not what ACCA says. ACCA instead refers to "the maximum term of imprisonment prescribed by law" for "an offense," and, as previously explained, in this case, the maximum term prescribed by Washington law for each of respondent’s two relevant offenses was 10 years.
Rodriquez also argued that it'll be a huge headache for district courts to determine whether a defendant faced a recidivist enhancement for a prior offense. The Court---in a very important paragraph that reveals a significant procedural limitation on the ACCA enhancement---was more sanguine:
First, in some cases, a defendant will have received a recidivist enhancement, and this will necessarily be evident from the length of the sentence imposed. Second, as the present case illustrates, the judgment of conviction will sometimes list the maximum possible sentence even where the sentence that was imposed did not exceed the top sentence allowed without any recidivist enhancement. Third, as respondent himself notes, some jurisdictions require that the prosecution submit a formal charging document in order to obtain a recidivist enhancement. Such documents fall within the limited list of generally available documents that courts already consult for the purpose of determining if a past conviction qualifies as an ACCA predicate. See Shepard v. United States, 544 U. S. 13, 20 (2005). Fourth, in those cases in which the defendant pleaded guilty to the state drug charges, the plea colloquy will very often include a statement by the trial judge regarding the maximum penalty. This is mandated by Federal Rule of Criminal Procedure 11(b)(1)(H), and many States have similar requirements. Finally, in those cases in which the records that may properly be consulted do not show that the defendant faced the possibility of a recidivist enhancement, it may well be that the Government will be precluded from establishing that a conviction was for a qualifying offense. The mere possibility that some future cases might present difficulties cannot justify a reading of ACCA that disregards the clear meaning of the statutory language.

(record cites omitted). This paragraph is critical, because it reveals that the Government must establish that the defendant actually faced a recidivist enhancement in the prior proceedings, not simply that a recidivist enhancement was possible. So, for example, it would not be enough to show that a defendant was convicted of a drug offense under a statute providing for a recidivist enhancement, and that he had previously been convicted of a qualifying predicate. If that was the case, then the Court would have just said that. Instead, the Court's examples demonstrate the Government must show---based on the sentence imposed, Shepard-type documents, or maybe a transcript of a plea colloquy---that the enhanced penalty was actually in play in the state case. And if the Government can't do that, then the ACCA enhancement would not apply.

The Court saved the most controversial holding for last. And by "controversial" I mean that it completely ignores recent Supreme Court holdings from the Apprendi line of cases. It also involves a question that Rodriquez conceded, in his brief in opposition, that he'd waived, so there's good reason to question why the Court addresses the issue in the first place.

Rodriquez argued that, in a state where mandatory sentencing guidelines cap a sentence below the theoretically applicable statutory maximum, the guidelines maximum is the "maximum term of imprisonment" for ACCA purposes. For example, even though the relevant statutes authorized a sentence of up to ten years' imprisonment for at least two of Rodriquez's drug convictions, it appears that the Washington sentencing guidelines authorized a sentence of no more than 48 months.

But the Court held that Congress intended for the "maximum term of imprisonment" to be the highest sentence authorized by statute, not the highest sentence available under sentencing guidelines. First, the Court said, "the top sentence in a guidelines range is generally not really the 'maximum term . . . prescribed by law' for the 'offense' because guidelines systems typically allow a sentencing judge to impose a sentence that exceeds the top of the guidelines range under appropriate circumstances."

Astonishingly, the Court doesn't attempt to reconcile this conclusion with its recent holdings in Blakely or Cunningham. The effect of those decisions is that the highest possible maximum sentence is not authorized in every case; that is, for some defendants in Washington, California, and other states that have Blakely-ized their guidelines, a sentence in excess of the guidelines maximum (or California's DSL default middle-term) would violate the Fifth and Sixth Amendment rights to proof beyond a reasonable doubt and to trial by jury. But not only is the Court completely silent on this glaring conflict, it actually cites the availability of upward departures under the current post-Booker advisory federal Sentencing Guidelines, and under the pre-Blakely Washington sentencing guidelines, as evidence that "essentially the same characteristic was shared by all of the mandatory guidelines systems in existence at the time of the enactment of the ACCA provision at issue in this case."

And that appears to be the lynchpin of the Court's holding, because it adds that "the concept of the 'maximum' term of imprisonment or sentence prescribed by law was used in many statutes that predated the enactment of ACCA and the federal Sentencing Reform Act of 1984, and in all those statutes the concept necessarily referred to the maximum term prescribed by the relevant criminal statute, not the top of the sentencing guideline range." Thus, "[i]n light of this established pattern and the relative newness of sentencing guidelines systems when the ACCA provision at issue here was added, we conclude that Congress meant the concept of the 'maximum term of imprisonment' prescribed by law for an 'offense' to have [the] same meaning in ACCA.

Recognizing that this result also seems inconsistent with the Court's construction of the Federal Juvenile Delinquency Act in United States v. R.L.C., the Court had this to say:
The statutory provision there, 18 U. S. C. §5037(c), set out the term of official detention for a juvenile found to be a delinquent. This provision was amended by the Sentencing Reform Act, and then amended again two years later. As thus amended, the provision did not refer to the "maximum term of imprisonment" prescribed for an "offense." Rather, the provision focused on the particular juvenile being sentenced. It provided that, "‘in the case of a juvenile who is less than eighteen years old,’" official detention could not extend beyond the earlier of two dates: the juvenile’s 21st birthday or "‘the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.’" Because this provision clearly focuses on the circumstances of the particular juvenile and not on the offense, it is not analogous to the ACCA provision that is before us in this case.

(most citation clutter omitted).

All this brings up a couple of questions. First, the Court is likely correct about circa ACCA/SRA-era understanding of the interaction between guidelines and statutory maximums. But that's no answer to the question of why that understanding should remain controlling more than twenty years later after the Court has repeatedly addressed that very issue and held that, depending on the operation of the state sentencing scheme, a sentence in excess of the guidelines maximum may be constitutionally prohibited. It also calls into question the so-called remedy in Booker, which rested on the notion that Congress originally intended for the federal Guidelines to be mandatory, but would not have wanted them to be mandatory if that would implicate constitutional procedural protections concerning pleading, the burden of proof, and the identity of the fact-finder for Guidelines calculations. If the Court could revise the Sentencing Reform Act to take into account what it believed Congress' intent would have been in light of the Booker merits holding, then why can't it reevaluate Congressional understanding of the term "maximum term of imprisonment" in light of Blakely, Booker, and Cunningham?

A second question is whether the same would hold true for a defendant whose relevant state convictions, in a mandatory-guidelines state, occurred after Blakely, especially a state that formally "Blakely-ized" its guidelines by judicial decision or legislative action. We know that, by that time, the understanding of a guidelines maximum was different than it was twenty-odd years ago. And we know that, at least as of 2004, Congress is well aware that in some states the guidelines maximum "trumps" a higher statutory maximum. It's hard to say for sure whether the Court would view that situation differently, but the majority opinion does provide some support for an argument that in such a situation the guidelines maximum is the controlling one for ACCA purposes:
The United States Sentencing Guidelines, for example, permit "upward departures," see United States Sentencing Commission, Guidelines Manual §5K2.0 (Nov. 2007), and essentially the same characteristic was shared by all of the mandatory guidelines system in existence at the time of the enactment of the ACCA provision at issue in this case. (Following this pattern, Washington law likewise provided at the time of respondent’s state convictions that a sentencing judge could "impose a sentence outsidethe standard sentence range" upon a finding "that there [were] substantial and compelling reasons justifying an exceptional sentence." Wash. Rev. Code §9.94A.120(2) (1994).)

(emphasis added). That's hardly conclusive, I know, but it's hard not to ask the question when it might provide some explanation for the Court's otherwise inexplicable silence on Blakely and kin.

You might read this portion of the case as a refusal on the part of some justices to accept the entire Apprendi line of cases, similar to Justice Breyer's position in Harris. But that doesn't explain why both Justices Scalia and Thomas join the majority here. They've both been staunch proponents of the rule of Apprendi (with Justice Thomas being arguably the staunchest), and Justice Scalia wrote Blakely. Why they joined this opinion is a mystery, as neither one of them wrote a separate opinion in the case. And their two votes were critical for the six-justice majority.

In fact, you might have expected them to join Justice Souter's outstanding dissent, as Justices Stevens and Ginsburg did. Justice Souter's major disagreement is elegantly simple: the statute is ambiguous on the question presented because the Government's and defendant's competing interpretations are at least equally plausible, thus triggering the rule of lenity. That rule prohibits reading the statute "so as to increase the penalty that it places on an individual when such an intepretation can be based on no more than a guess as to what Congress intended." As applied here, that would mean that the "maximum term of imprisonment" be read to refer to the maximum for the base offense, without reference to any recidivist enhancements.

Apart from that, Justice Souter catalogues a number of problems with the majority's interpretation of the statute, including the wide variation in the mechanics and severity of states' recidivist schemes, and the practical problems in determining exactly what the maximum sentence might have been for a particular recidivist, as opposed to the maximum for a basic offense. He also takes issue with the majority's resolution of the guidelines-vs.-statutory maximum question, although (strangely) without mentioning Blakely, Booker, and Cunningham. Instead, Justice Souter points out the arbitrariness of relying on one particular offender characteristic (recidivism) to the exclusion of other offender characteristics that are typically taken into account in guidelines calculations, as they are both "prescribed by law":
The Court tries to deflect the implication of its position by denying that state sentencing guidelines really do set maximum penalties, since typically they allow a judge to depart from them, up or down, when specified conditions are met. But while this is true, the objection stands. However a particular mandatory guideline scheme works, it sets a maximum somewhere; if it includes conditions affecting what would otherwise be a guideline maximum, the top of the range as affected should be the relevant maximum on the Court’s reading of the statute. Indeed, the factual conditions involved are usually offender characteristics, and if the ACCA is going to count them under offense-defining statutes or freestanding recidivism laws, those same facts ought to count under a guideline rule (whether setting, or authorizing a departure from, a particular limit). There is no practical difference whether maximums are adjusted by a statute, a statutorily mandated guideline, or a guideline-specified departure; wherever a "prescri[ption] by law" resides, itought to be honored by the ACCA court.
I encourage you to read the whole thing.

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