During oral arguments in two consolidated cases involving Rashaad Brown and Eugene Jackson — convicted felony drug dealers later prosecuted for gun possession — the Supreme Court's liberal block appeared most concerned by the government's position, which says courts sentencing a defendant under the Armed Career Criminal Act, or ACCA, should adopt the federal list of illegal drugs in effect at the time of the defendant's prior state drug offense.
Brown and Jackson, who both received ACCA's 15-year mandatory minimum sentence because of prior state drug offenses, said the government's view is wrong. They argue that the ACCA incorporates the controlled substance list in effect either at the time of the federal gun offense or when the defendant is sentenced for the federal gun offense.
The three viewpoints track a deep circuit rift. In the Fourth Circuit, courts use the version of federal law in effect at the time of sentencing. The Third, Eighth, and Tenth circuits look at federal law at the time of the federal firearm offense. The Eleventh Circuit is the only U.S. court of appeals to embrace the government's view.
Arguing for the government, Austin Raynor said its rule "flows from the ACCA's text."
"That language dictates a backward-looking inquiry that requires courts to assess the attributes of a prior conviction at the time that it occurred," he said. But he also clarified that were the ACCA to include a static list of banned drugs, rather than referencing the Controlled Substances Act, or CSA, as it does currently, courts should look at the law in effect at the time of the federal gun offense.
Several unconvinced justices saw that as a double standard, starting with Justice Sonia Sotomayor.
"I think this is the most serious weakness in your argument because it doesn't make much sense to me," she said. "When you're cross-referencing something, you're taking everything with it. You're picking and choosing, and now saying, 'I'm only going to take a piece of it, not all of it.'"
Justice Elena Kagan had similar doubts.
"Your whole argument rests on treating differently a list of five substances or any other attribute of ACCA, treating it differently from a controlled substance as defined in Section 102 [of the CSA]. And that seems a little bit mysterious to me," she said.
Justice Ketanji Brown Jackson, the only member of the court with significant criminal defense experience, stood up as the most critical voice against the government's position; she pointed out that by taking out a drug from its controlled substance schedule, Congress makes it clear that possessing that substance is no longer a crime.
"Why would Congress want to incapacitate defendants who have committed crimes that federal law no longer regards as serious?" she said. "I'm trying to understand why the government's position is that they should still be ACCA predicates."
Raynor replied that it "makes sense" to look at the legal landscape at the time that the federal gun offense occurred.
"Why? We're doing sentencing today," Justice Jackson continued. "We're trying to determine whether this person today needs to be put in jail for 15 more years. So why does the seriousness or the label or the perception of the past as to what he did matter? Why wouldn't the criteria for determining that be what we think about his prior crimes today?"
Raynor concluded that line of inquiry by saying that a person's conduct at the time of their crime matters because "it's relevant to his willingness to disregard the law."
But even one of the court's moderate members who could provide critical votes in deciding the case, Justice Neil Gorsuch, appeared skeptical of the government's view. Justice Gorsuch asked Raynor which part of the ACCA's text suggested the backward-looking approach he argued for. Raynor's response didn't appear to satisfy the justice, who moved on to other questions.
In enacting the ACCA in 1984, Congress aimed to lock up people who are deemed to be dangerous to society based on their priors involving violent behavior or a "serious drug offense" for a longer time.
Under the law, felons hit with firearm charges are subject to a maximum 10-year sentence. But a defendant who has at least three serious drug offenses or violent felony convictions meets the threshold for the 15-year mandatory minimum.
To determine whether the three strikes have occurred, federal courts determine whether the elements of a state drug offense or violent felony match those of its federal counterpart using a method known as the "categorical approach," which was established by the Supreme Court in the 1990 Taylor v. United States
decision.At the time Brown and Jackson committed their state offenses, all the substances covered by state law were also "controlled substances" under the CSA. However, the government later removed some of those substances from the federal CSA schedules.
The case before the justices Monday deals with how a serious drug offense is defined by the ACCA in light of those substance schedule changes.
Brown was charged as a felon in possession of a firearm after police found cocaine, money and a gun in his apartment. In 2018, hemp was decriminalized federally, but it continued to be illegal in Pennsylvania. After his guilty plea, a federal court counted Brown's prior Pennsylvania drug convictions — one for delivering cocaine and four for possessing marijuana — as predicates under the ACCA, and sentenced him to 15 years.
On appeal, Brown challenged the mandatory minimum sentence on the grounds that while Pennsylvania punished conduct — in this case, hemp possession — the federal government did not. Brown argued the sentencing court should have looked at the version of federal law in effect at the time of federal sentencing, but the Third Circuit disagreed.
Jackson was also sentenced to the 15-year minimum in 2021 after he pled guilty to being a felon in possession of a firearm. In his case, the Southern District of Florida said it was bound by federal appeals court precedent to consider his two state drug convictions as serious drug offenses, which together with two violent felonies — an armed robbery conviction and one for aggravated assault — met the mandatory minimum prison time under the ACCA.
Jackson argued unsuccessfully that the sentencing court should have looked at federal law in effect at the time of his federal gun offense when it considered ioflupane, a cocaine analogue, legal, while Florida still banned it.
The Eleventh Circuit first reversed Jackson's enhanced sentence, but after the federal government filed briefs in opposition, the appellate court decided the correct analysis involved looking at federal law at the time he was convicted in state court.
Arguing on behalf of Brown, Jeffrey T. Green of Sidley Austin LLP said the correct controlled substance list to look at is the one in effect at the time of sentencing.
"At its core, the ACCA is a sentencing enhancement. It is not a crime unto itself," he said. "This court has said that the ordinary practice is to apply current law, including at sentencing, there is no reason to deviate from that ordinary practice here."
Meanwhile, Andrew Lee Adler, a federal public defender representing Jackson, argued that courts must apply ACCA's criteria effect at the time of the federal gun offense.
During oral arguments Monday, several justices expressed concerns about the positions of petitioners as well, in particular Brown's. Justice Sotomayor hinted that the rule embraced by Brown could undermine the deterrent effect of the ACCA.
"Can I ask you what purpose your rule has to putting a defendant on notice as to what his potential liability may be at the moment he commits the federal offense?" Justice Sotomayor asked. "Your rule doesn't do anything to enhance rejection of a criminal from committing a crime again."
Green didn't budge.
"Respectfully, Justice Sotomayor, I think that's an odd conception of notice, to be honest with you," he said. "I think it's an odd conception to say that you should be culpable for some future act that you had not even committed yet because you were on notice at that time."
Brown is represented by Jeffrey T. Green, Peter A. Bruland, Drew Langan and Meredith R. Aska McBride of Sidley Austin LLP.
Jackson is represented by Andrew Lee Adler of the Federal Public Defender's Office for the Southern District of Florida.
The U.S. government is represented by Austin Raynor, assistant to Solicitor General Elizabeth B. Prelogar of the U.S. Department of Justice.
The cases are Justin Rashaad Brown, Petitioner v. United States, case number 22-6389, and Eugene Jackson, Petitioner v. United States, case number 22-6640, both in the Supreme Court of the United States.
--Editing by Caitlin Wolper.