Archives for April 26, 2019

Yesterday’s argument in what appeared to be a relatively routine Armed Career Criminal Act case (see my preview here), developed into a fascinating discussion among the justices about statutory interpretation, led by Justices Elena Kagan and Neil Gorsuch. The justices focused on how best to interpret a federal statute when an issue is presented that was simply not on Congress’ mind when it wrote the statute. They also considered how the Supreme Court should apply a governing precedent when, as Kagan put it, “nobody could think that the person who [wrote the] opinion had this issue in mind.” When the opinion in Quarles v. United States is released (likely in a month or so), it may provide some interesting general guidance on questions broader than the particular statute at issue. 

Some necessary background

The ACCA statute enacted in 1986 has long produced difficulty and conflict among lower federal courts and the Supreme Court’s justices. Indeed, inconsistent and unpredictable applications of a “residual clause” in the statute — not now at issue in Quarles — led the court to strike down that provision as unconstitutionally vague in 2015. The act (codified as subsection (e) of 18 U.S.C. §924) was plainly intended to impose long prison sentences on serious repeat offenders who are found in unlawful possession of a firearm.  If such gun offenders have three prior convictions for “violent felonies” or serious drug crimes, they must receive a 15-year prison term.

Congress also clearly intended that the prior convictions counted for the ACCA sentencing enhancement should include both state and federal crimes. The statute defined “violent felony” generically, as any crime punishable by more than a year that “has as an element the use, attempted use, or threatened use of physical force,” or “is burglary, arson, or extortion.” The problem is that the laws of 50 states have multifarious ways of defining crimes. Jamar Quarles, for example, was previously convicted of a Michigan crime called “home invasion in the third degree,” which made it criminal not only to break into a dwelling with intent to commit a felony inside, but also to “enter[] a dwelling without permission and, at any time while … present …, commit[] a misdemeanor.” The federal district court that later sentenced Quarles after he pled guilty to unlawful federal firearms possession found that this Michigan statute was “the functional equivalent” of burglary, and (based on this and two prior assault-with-deadly-weapon convictions) sentenced Quarles under ACCA to 17 years in prison.

What are the current rules for determining an ACCA burglary?

The question of what constitutes an ACCA burglary is not new, and in 1990 the Supreme Court confronted how best to interpret and apply the statute. In Taylor v. United States, Justice Harry Blackmun announced a number of interpretive conclusions for a unanimous court. First, Congress intended that a uniform, generic definition of “burglary” be employed, rather than that burglary be governed by the “vagaries of state law” or the “arcane technicalities of the common-law definition.” Burglary was listed in the ACCA because of its “inherent potential for harm to persons,” and the failure to define it further (as a predecessor statute had) was merely “inadvertent.”

Second, the court announced its own generic definition of burglary: “any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” This was undoubtedly broader than the old common-law definition, but that is what Congress intended, even if some modern “burglaries” involve less “potential risk of physical injury to another.” “We believe that Congress meant” burglary “in the generic sense in which the term is now used in the criminal codes of most States.” Indeed, earlier this term in United States v. Stitt, the court repeated that whatever conduct “a majority of state law burglary statutes covered” in 1986 should govern the ACCA definition today.

Third, the court agreed that Congress intended a “categorical approach” to determining what prior state convictions were ACCA-qualified. That is, the elements of the applicable state statute should be examined, “not the particular facts underlying [individual] convictions.” If the state’s statutory definition could theoretically encompass conduct outside the generic definition of burglary, then prior convictions under such a statute do not count for the ACCA, whether or not the defendant’s actual conduct was violent.

The unanticipated question, and difficulties, here

Both the Michigan statute governing Quarles’ prior conviction and the Taylor definition of burglary encompass what the parties call “remaining in” burglaries: not just breaking and entering while having an intent to commit a crime inside, but also remaining in a structure without authorization and with that intent. Even an entry with permission, which becomes an unlawful trespass when that permission is revoked, can result in a conviction for burglary if the person who remains intends to commit a crime.

The question that this case presents is one of timing: At what point must the intent to commit a crime arise in a “remaining in” situation? Jeremy Marwell, representing Quarles, noted the common-law requirement that the criminal intent must coincide with the “entry,” and argued that although unlawful “entry” may not be required for the ACCA, an unlawful “remaining in” crime should also include a specific point-in-time intent requirement. That is, the intent to commit a crime inside must exist at the “initial moment of trespass,” not just develop at any time. Otherwise, the alternative requirement of “entry” becomes superfluous, because every unlawful entry is immediately followed by an unlawful “remaining in.” A number of states have construed their state burglary “remaining in” statutes, to be limited to persons who have the intent to commit a crime at the moment their authorized entry becomes unlawful. Because the Michigan statute would permit conviction for an unprivileged remaining in if the intent to commit a crime were developed “at any time,” Quarles’ “time of initial trespass” rule would make a conviction under the Michigan statute nonqualifying under ACCA’s categorical approach.

Zachary Tripp, the assistant to the solicitor general arguing for the government, posited a broader view of Taylor’s reference to “remaining in.” He argued that “remaining in” has a plain meaning that requires a “continuous presence” for the entire period of unauthorized remaining. He pointed out that more states than not currently interpret their burglary statutes that way. Moreover, Tripp argued, a person (or at least most persons) who develops a criminal intent at any time while in a structure without permission is potentially dangerous and thus appropriately sentenced under ACCA’s career violent offender provision.

The problem is that, as Kagan succinctly clarified, neither Congress nor most states, nor the court in Taylor, appear to have had this point-in-time intent distinction in mind some 30 years ago. “Remaining in” burglary statutes were relatively recent in 1986, and only a few at that time clearly accommodated the government’s broader definition. So this is where yesterday’s arguments got interesting. Kagan again added precision and clarity, noting that of course Congress intended to encompass the more recent “remaining in” burglaries, but asking whether Congress intended to make a small adjustment or to open ACCA to a much broader (but clearly, at that time, minority) view.

Confusion about how many states took exactly what position, and when, persisted throughout the argument. As Gorsuch resignedly queried toward the end of Tripp’s argument, must the court’s inquiry “just come back to counting”?  Gorsuch asserted that trying to interpret statutes and state court decisions across the country, as they existed over 30 years ago when ACCA was written, is “not very popular with lower courts, to say the least, and it’s not easy to do.” Even if Stitt recently seemed to embed that approach, Gorsuch asked, “has the government given any further thought to” it? Gorsuch seemed to suggest that, by his count, a majority of states in 1986 favored Quarles’ position (even if a majority today may not). Is the court “dependent upon this mathematical exercise”? Or “has the government considered” a different approach? He seemed interested in finding a simpler way to address the many arcane differences among various states’ burglary laws and interpretations without “ignor[ing] a thousand years worth of [common-] law” holding that small distinctions are significant for separating burglary from other, lesser crimes.

The argument overall

All the justices were engaged in this argument (to greater and lesser degrees; Justice Clarence Thomas did not speak). And not all expressed views in step with their perceived ideological bent. Gorsuch’s challenging questions were all reserved for Tripp. Justice Sonia Sotomayor noted, early in Marwell’s opening argument,  that Taylor said that “only a few” state statutes would be excluded under its generic definition. “[I]sn’t that enough,” she asked, to adopt a broad definition of “remaining in” that would not exclude them? Justice Ruth Bader Ginsburg seemed most interested in trying to nail down the numbers for the states’ positions in 1986, while Chief Justice John Roberts and Justices Samuel Alito and Brett Kavanaugh seemed to be leaning the government’s way. Meanwhile, Justice Stephen Breyer once again suggested that the government try an empirical approach, one that has never drawn much support, noting that “this is only the 50th time I’ve asked this question.”

Tripp closed by asserting that there is “no logical stopping point” regarding small variations among states’ laws, and that without a “broad definition of the category” of burglary, “you’re going to be knocking them out one after another, after another, until there’s really nothing left.” Gorsuch appeared to echo this concern, but he suggested that it favors Quarles’ position rather than the government’s. Of course, more than anything, such concerns point to the interpretative problems posed by the ACCA statute overall.

Conclusion

Throughout the argument, Kagan and Gorsuch pursued long-standing questions about how to interpret an old statute when a specific issue that is divisive today was not considered when the statute was enacted. It would be refreshing to see a Supreme Court opinion, or opinions, that confront such issues broadly and without a predictable ideological tilt. The particular answer in this case will of course be important to Quarles; a broader discussion, if there are competing opinions, could perhaps prove useful to the court in the future.

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