Becoming a “Career Criminal” in One Night: The Supreme Court is Poised for an Important Criminal Sentencing Decision in Wooden v. United States
Few federal statutes have vexed the Supreme Court as much as the Armed Career Criminal Act (hereinafter “ACCA”). The ACCA is a federal recidivist sentencing enhancement, which imposes a fifteen-year mandatory minimum sentence for a defendant convicted of knowingly possessing a firearm if that defendant has three previous convictions for offenses that qualify as a “violent felony” or “serious drug offense” and were “committed on occasions different from one another.”1 Enacted in 1984, the ACCA was designed to deter dangerous, repeat criminals from possessing firearms, and to separate them from society for a significant period of time.2
The ACCA has been continually criticized and legally challenged. First, the severe minimum sentence gives prosecutors overwhelming leverage in charging decisions and plea negotiations.3 Second, the ACCA’s requirements generate complicated constitutional issues clogging federal courts, such as Sixth Amendment challenges regarding unconstitutional judicial fact-finding regarding a defendant’s prior qualifying offenses.4 Third, the ACCA has racially disparate outcomes, with Black individuals accounting for 70.5% of federal defendants sentenced under the ACCA and also receiving longer sentences than any other racial group sentenced with the enhancement.5 Finally, the ACCA’s legislative history indicates that it was intended for the most serious recidivist offenders, and yet it is being applied in cases where Congress did not intend.6
This fourth critique—that the ACCA is applied where Congress would not have intended—is at the foreground in Wooden v. United States, a fascinating case that the Supreme Court heard on the first day of its 2021–22 term.7 The question in Wooden is what it means for offenses to be “committed on occasions different from one another” such that they constitute separate convictions for the application of the ACCA’s severe mandatory sentence. The facts in Wooden illustrate the problem. On one night, Mr. Wooden entered a storage facility and burglarized ten separate units, taking a few items from each, by drilling through one to access the others. The government argues these were separate burglaries that occurred on “occasions different from one another” and that Mr. Wooden is therefore subject to the 15-year mandatory ACCA enhancement.8 If, instead, Mr. Wooden’s actions constitute one “occasion,” his applicable guideline recommendation should have been 21 to 27 months, with a statutory maximum of ten years.
The government’s argument—that burglarizing several attached storage units in one night constitutes burglaries committed on “occasions different from one another”—is wrong. First, as the Petitioner argues, the common usage of the term “occasion” does not mean one precise moment in time, and the circumstances and context matter.9 Moreover, the meaning of “occasions” includes consideration such as statutory structure, the ACCA’s title (indicating the enhancement is intended for “career” criminals), and congressional intent. Third, as amicus counsel argued, the ACCA’s “occasions” requirement violates the Sixth Amendment, because determining whether a defendant’s prior offenses were committed on occasions “different from one another” necessitates judicial findings regarding the factual circumstances underlying each qualifying conviction.10
The scenario in Wooden, where Mr. Wooden’s convictions arise from a single evening at a storage facility and resulted in being punished as a “career criminal,” is not unique. The ACCA’s “occasions” requirement is also problematic where a defendant is charged with a conspiracy drug offense along with substantive drug transactions related to that conspiracy. For example, in United States v. Longoria, the ACCA fifteen-year enhancement was based on two drug sales committed within the temporal span of the conspiracy, three counts for which Mr. Longoria was charged in one indictment, pled guilty to at one hearing, and sentenced for on one day.11 As Mr. Longoria argued unsuccessfully to the Eleventh Circuit and Supreme Court, the ACCA’s “different occasions” analysis is inappropriate when one of the three prior offenses is conspiracy. Conspiracy is a continuous offense, and if the other qualifying prior offenses are transactions within that conspiracy, counting these as different “occasions” for an ACCA enhancement years later is problematic.12
During oral argument last week in Wooden, the Justices recognized that the “occasions different from one another” language was amended into ACCA after United States v. Petty, an Eighth Circuit case, where, like Mr. Wooden and Mr. Longoria, the defendant received an ACCA sentence based on six robbery charges stemming from robbing several seated patrons at a diner.13 The Supreme Court reversed the ACCA enhancement, and, on remand, the Eighth Circuit held that the ACCA was intended “to reach multiple criminal episodes that were distinct in time, not multiple felony convictions arising out of a single criminal episode.”14 In response to Petty, Congress amended the ACCA, adding the clause.15Notably, then Senator Biden, Chairman of the Judiciary Committee, explained the “occasions different from one another” requirement as follows:
[the] concept of what is meant by a “career criminal”, [sic] that is, a person who over the course of time commits three or more of the enumerated kinds of felonies and is convicted therefor. It is appropriate to clarify the statute . . . to ensure that its rigorous sentencing provisions apply only as intended in cases meriting such strict punishment.16
17
Finally, at least two Justices—Thomas and Barrett—expressed concern that the ACCA’s “different occasions” finding requires unconstitutional judicial fact-finding.18 The Supreme Court has repeatedly prohibited increasing a defendant’s sentence based on judicial findings about “the who, what, when, and where of a conviction.”19 Basing an increased mandatory sentence on judicial finding regarding non-elemental facts, such as when precisely a crime occurred and whether it was a different occasion from another crime, is profoundly unfair to defendants. The Court recognizes that a “defendant, after all, often has little incentive to contest facts that are not the elements of the charged offense—and may have good reason not to” in the earlier criminal proceeding.20 When a defendant has no reason to object to facts related to the conduct of a prior offense, “such inaccuracies,” “should not come back to haunt the defendant many years down the road by triggering a lengthy mandatory sentence.”21
The ACCA’s legislative history and the Petty amendment demonstrate that the extreme punishment, a 15-year mandatory minimum, was designed to be reserved for individuals who make repeat decisions to commit crimes. As seen in Longoria, conspiracy is inappropriate for the ACCA’s “occasions” paradigm, is particularly problematic when the conspiracy count is counted separately from substantive offenses within that conspiracy, and raises significant constitutional concerns. Thus, the Court’s upcoming decision in Wooden is eagerly anticipated by federal criminal practitioners and the many critics of the ACCA’s application. The Court could decide to adopt one of the parties’ interpretations, or it could write a broader decision about the viability of the ACCA’s “occasions different from one another” requirement within an already problematic mandatory minimum sentencing scheme.
1✕ 18 U.S.C. § 924(e) (2018). Ordinarily, the crime of being a felon in possession of a firearm carries a sentence of zero to ten years, and each defendant’s sentence depends on a variety of sentencing factors. But when a defendant has three prior convictions for specific qualifying offenses that have been “committed on occasions different from one another,” the ACCA demands the judge impose a fifteen-year mandatory minimum. 18 U.S.C. § 924(a)(2).
2✕ See H. R. Rep. No. 98-1073, at 2 (1984) (stating that “both Congress and local prosecutors around the nation have recognized the importance of incapacitating these repeat offenders”).
3✕ For example, there is no expiration date for the offenses that can trigger the ACCA. Qualifying prior offenses include felonies punishable by a year or more in prison, even if the individual was actually sentenced to less time for the offense. 18 U.S.C. § 921(a)(20) (2012).
4✕ The ACCA’s “occasions” requirement has given rise to a deluge of constitutional challenges. See, e.g., Mathis v. United States, 136 S. Ct. 2243 (2016). There is also constant litigation regarding what constitutes a “violent felony” and “serious drug offense” for purposes of the ACCA.
5✕ U. S. Sentencing Comm’n, Mandatory Minimum Penalties for Firearms Offenses in the Federal Criminal Justice System 6 (2018); see U.S. Sentencing Comm’n, Federal Armed Career Criminals: Prevalence, Patterns, and Pathways (2021), https://perma.cc/NQ8J-LQXU.
6✕ Rachel E. Barkow, Categorical Mistakes: The Flawed Framework of the Armed Career Criminal Act and Mandatory Minimum Sentencing, 133 Harv. L. Rev. 200, 201 (2019) (arguing that ACCA causes “[t]housands of [less culpable] individuals [to] receive[] punishments disproportionate to their offenses because they were treated on par with the worst offenders Congress had in mind when passing its laws.”);see United States v. McElyea, 158 F.3d 1016, 1020 (9th Cir. 1998) (“[Armed career criminals are] people who have demonstrated, by virtue of their definition, that locking them up and letting them go doesn’t do any good. They go on again, you lock them up, you let them go, it doesn’t do any good, they are back for a third time. At that juncture we should say, ‘That’s it; time out; it is all over. We, as responsible people, will never give you the opportunity to do this again.’”).
7✕ Search Results: No. 20-5279, Sup. Ct., https://perma.cc/87BE-DTEQ (last visited Oct. 14, 2021) (providing the docket information for Wooden v. United States).
8✕ See generally Brief for the United States in Opposition, Wooden v. United States, No. 20-5279, 2020 WL 9906244 (Dec. 2020).
9✕ For example, when describing a pitcher’s outing in a particular game, it would be common usage to say “she struck out 6 hitters and threw 45 pitches” referring to different moments, but one occasion. See Latte Liberal, Strict Scrutiny Podcast (Oct. 11, 2021),https://perma.cc/VEE8-UTPJ.
10✕ U.S. Const. amend. VI; see Brief for Amicus Curiae the National Association of Criminal Defense Lawyers in Support of Petitioner, Wooden v. United States, No. 20-5279, 2021 WL 2316272 (May 2021).
11✕ United States v. Longoria, 874 F.3d 1278 (11th Cir. 2017).
12✕ See Aliza Hochman Bloom, Time and Punishment: How the ACCA Unjustly Creates a “One-Day Career Criminal,” 57 Am. Crim. L. Rev. 1 (2020). Current law improperly considers three interrelated drug counts that arise out of the exact same conduct and are charged in the same indictment to be separate drug convictions. Id. at 24–25.
13✕ 798 F.2d 1157, 1160 (8th Cir. 1986).
14✕ United States v. Petty, 828 F.2d 2, 3 (8th Cir. 1987) (noting on remand that the Solicitor General admitted error in applying an ACCA enhancement to Mr. Petty).
15✕ Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 7056, 102 Stat. 4181, 4402.
16✕ 134 Cong. Rec. S17370 (daily ed. Nov. 10, 1988) (remarks of Sen. Biden).
17✕ Daniel Harawa, A Hypothetical-Filled Argument Proves How Tricky It Is to Define an “Occasion”, SCOTUS blog (Oct. 5, 2021, 1:39 PM), https://perma.cc/S85J-8XWW.
18✕ Id.
19✕ Pereida v. Wilkinson, 141 S. Ct. 754, 765 (2021); see, e.g., Descamps v. United States, 570 U.S. 254, 259, 269 (2013) (“The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt.”).
20✕ Descamps, 570 U.S. at 270.
21✕ Mathis v. United States, 136 S. Ct. 2243, 2253 (2016).