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Volume XI, Number 217

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Supreme Court Update: California v. Texas (No. 19-840), Fulton v. City of Philadelphia (No. 19-123), Nestle USA v. Doe (No. 19-416), Borden v. United States (No. 19-5410), Greer v. United States (No. 19-8709), Terry v. United States (No. 20-5904)

Some big decisions this week as The Nine turn into the final stretch. Yesterday, the Court issued hotly anticipated decisions in California v. Texas (No. 19-840), dismissing the latest challenge to the Affordable Care Act on standing grounds, and Fulton v. City of Philadelphia (No. 19- 123), holding that Philadelphia violated the free-exercise clause when it stopped working with a Catholic social-service organization that refused to certify same-sex couples as potential foster parents (but refusing to go further and reversing the Court’s controversial decision in Employment Division v. Smith (1990), which held that neutral laws of general applicability don’t violate the free-exercise clause even if they incidentally burden religion). It also decided Nestle USA v. Doe (No. 19-416), holding that a lawsuit under the Alien Tort Statute alleging U.S. companies were complicit in trafficking and child labor in the Ivory Coast must be dismissed because it lacked a necessary nexus to the United States (but declining to go further and hold that the ATS does not apply to corporations at all).

We’ll have summaries of those decisions next time. For now, we’ve got the rest of this week’s decisions (from Monday), as well as a straggler from last week—criminal cases all.

First up, in Borden v. United States (No. 19-5410), a bare majority of the Court held that criminal offense with a mens reas of recklessness does not qualify as a “violent felony” under the Armed Career Criminal Act (ACCA).

As regular (and even irregular) readers know, ACCA mandates a 15-year minimum sentence for offenders found guilty of illegally possessing a gun if they have three or more prior convictions for a “violent felony.” A “violent felony” is defined to include a number of specifically enumerated offenses, as well as any offense that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” To determine whether a given offense satisfies this “elements clause,” the Court employs the so-called “categorical approach,” under which the underlying facts of the offense don’t matter; rather, the question is whether the offense necessarily involves the “use, attempted use, or threatened use of physical force against the person of another.”

The Court has devoted a great deal of ink over the years to explaining why a variety of offenses do or do not qualify as violent felonies under the ACCA’s elements clause. In this case, the question was whether petitioner Charles Borden’s prior conviction for reckless aggravated assault under Tennessee law qualified as a violent felony for purposes of triggering ACCA’s sentencing enhancement. Borden argued that it did not, because a violent felony requires a purposeful intent, while reckless aggravated assault can be committed with, well, recklessness. The District Court disagreed and the Sixth Circuit affirmed. The Supreme Court took up the case to resolve a circuit split over whether offenses criminalizing reckless conduct can qualify as a violent felony under ACCA.

A fractured majority of the Court sided with Borden, concluding that ACCA’s definition of violent felonies does not cover offenses that can be committed with a mens rea of recklessness. Justice Kagan took the pen for the majority, joined in full by Justices Breyer, Sotomayor, and Gorsuch. (Justice Thomas provided a begrudging fifth vote for the judgment.) As she explained, the conclusion that offenses with a reckless mens rea don’t qualify as violent felonies follows from ACCA’s statutory text. The phrase “against another,” when modifying a volitional act like the “use of force” necessarily requires that the perpetrator intentionally direct his force at another. (For this reason, the Government’s reliance on Voisine v. United States (2017) was misplaced, for that case interpreted the phrase “use of force” in defining a “misdemeanor crime of violence,” which, unlike a “violent felony” does not require the use of force against another.) The ordinary meaning of the term “violent felony” provides further support for this interpretation. As the Court has previously stressed, “we cannot forget that we ultimately are determining the meaning of the term ‘crime of violence.’” The Court has therefore limited the definition to mark out a “narrow category of violent, active crimes,” which are best understood to involve a purposeful or knowing mental state; not just indifference to the risk of harm, but the deliberate choice of causing harm. Finally, Justice Kagan argued that a narrow reading was consistent with ACCA’s purpose. The statute was passed to address “the special danger created when a particular type of offender—a violent criminal—possesses a gun.” Offenders who have repeatedly and deliberately committed violent offenses pose an uncommon danger of doing so again. The same cannot necessarily be said of those who have committed offenses, like a DUI, that reveal only a degree of callousness toward risk.

Justice Thomas provided the fifth vote for the majority, but he wasn’t thrilled about it. He agreed that the particular provision of ACCA at issue here does not encompass reckless conduct, but believed (as he has long argued) that the offense should never-the-less qualify as a violent felony under ACCA’s residual clause, which the Court invalidated in Johnson v. United States (2015). The solution, Thomas maintained, is to overrule Johnson. But until there is an opportunity to correct course, he concluded that it was better to “aggravat[e] a past error [than] commit[] a new one.”

Justice Kavanaugh dissented, joined by the Chief and Justices Alito and Barrett. He denounced the “mystifying” conclusion that an offense that concededly involves the “use of physical force” does not qualify as a violent felony merely because it does not necessarily involve the “use of physical force against the person of another.” Defendants convicted of such offenses, he insisted have made a “deliberate decision to endanger another,” and (where the offense is reckless aggravated assault, as here) have generally inflicted serious injury or death on another. And most states have criminalized reckless assault as an offense against the person. When Congress enacted ACCA in 1986, it intended to “cover the prototypical violent crimes, such as assault and homicide.” Congress would be surprised, Kavanaugh maintained, to learn that those prototypical offenses (which can be committed with reckless intent) might not in fact qualify as crimes of violence.

The Court managed a greater degree of agreement in the week’s other two decisions, both of which were unanimous, with solo Sotomayor concurrences.

Greer v. United States (No. 19-8709) is a follow-on to the Court’s 2019 decision in Rehaif v. United States where the Court held that the Government in a felon-in-possession case must prove that the defendant knew he was a felon at the time he possessed the weapon. But how does Rehaif apply to defendants whose convictions were on appeal when Rehaif was issued and in whose trials the government had not been required to prove that the defendant knew he was a felon? A nearly unanimous Court held that such defendants could only have their convictions vacated if they made a sufficient argument on appeal that they in fact did not know they were a felon.

To explain more, let’s take a step back. Federal law prohibits the possession of firearms by those convicted of a felony. Rehaif clarified that the mens rea requirement of this offense required the government to prove not just that the defendant knew he possessed a weapon (something everybody agreed on pre-Rehaif) but also that the defendant knew he was a felon (something that no court of appeals thought was so before Rehaif). Common-sense suggests that this rule might not have a huge impact on who can be charged under the felon-in-possession statute because most people convicted of a felony are probably aware they are felons. Before Rehaif was decided, both Gregory Greer had been convicted under and Michael Gary had pled guilty to violating the felon-in-possession statute. In neither case was the government required to prove they knew they were felons. But while their cases were on appeal, the Court decided Rehaif. Both then argued their convictions should be vacated because the government had failed to prove they knew they were felons. The Eleventh Circuit rejected Greer’s argument, affirming his conviction, but the Fourth Circuit agreed with Gary. The Court granted certiorari in both cases to resolve this split.

Writing for a majority of eight, Justice Kavanaugh framed the basic question. Because neither Greer nor Gary had preserved their argument that the evidence was insufficient to prove they knew they were felons at the time of their conviction, they were entitled at most to plain-error review. But plain-error review is narrow. It is permissive (not mandatory) and generally only applies when there is an error, when it’s “plain,” and when it affects “substantial rights,” meaning there is a “reasonable probability that, but for the error, the outcome would have been different.” If those three requirements are met, a court may grant relief if it also concludes the error had a serious effect on the fairness, integrity, or public reputation of judicial proceedings.

Everyone agreed that given Rehaif, the lower courts had erred by not requiring the government to prove that Greer and Gary knew they were felons and that this error was “plain.” But did that error affect their “substantial rights”? As noted, most of the time, one would assume that people convicted of a felony would know they were felons. So the mere fact that one has a criminal conviction would generally be enough for a jury to infer that the defendant knew their status as a felon. This made it difficult for defendants in the ordinary course to show a reasonable probability that but for the Rehaif error, the results of their trials would have been any different. That’s not to say a defendant could never meet this standard—Justice Kavanaugh acknowledged that in rare circumstances, a defendant might be able to meet that standard (such as where the defendant received only probation and may have been unaware their crime of conviction was a felony punishable by one year in jail). But on the facts of Greer’s and Gary’s cases, that was not so here, since there was substantial evidence they had in fact known they were felons.

Justice Kavanaugh then turned to several counterarguments presented by Greer and Gary, and if you’ve read this far, we’ll tell you this is probably the part you should pay the most attention to because it has broader application than just those convicted of violating the felon-in-possession statute. Greer argued that appellate courts conducting plain-error review can look only to the trial record and cannot consider other pieces of record evidence (like that in a presentence report) to decide whether there was evidence a particular defendant in fact knew he was a felon. But that was illogical, Justice Kavanaugh concluded, because had the government been forced to prove that Greer was a felon at trial, it likely would have introduced that outside-the-trial-record evidence to prove it, so the Court could consider that non-record evidence in conducting plain-error review. Now sometimes that non-trial-record evidence may not be reliable, and courts should discount it if so, but there is no per se bar on considering it.

Gary, for his part, contended that the Court should recognize a “futility” exception to plain-error review. At the time of his guilty plea, every court to consider the issue had held that knowledge of one’s status as a felon was not an element of the felon-in-possession statute, so it would have been futile for Gary to raise (and hence preserve) that argument. But the Court found no support for such a futility exception in the Rules of Criminal Procedure or its precedent; instead, the standard of review turns only on whether one in fact preserved an issue. Gary also argued that Rehaif errors are structural (at least in the context of his case), requiring automatic vacatur of a conviction. But no, structural errors are generally limited to errors that affect the entire conduct of the proceeding from beginning to end, not minor instructional or evidentiary defects. The bottom line, then, was that Rehaif errors could only provide for plain-error relief when defendants make a sufficient argument on appeal that they could have presented evidence at trial that they did not in fact know they were a felon. Absent that, the error is forfeited.

Justice Sotomayor, writing only for herself, concurred in Greer’s case, but dissented in part in Gary’s. She agreed that Greer had not provided a good reason to think the Rehaif error affected his substantial rights because the evidence was pretty strong that he in fact knew he was a felon at the time he possessed the gun. But recall that in Gary’s case, the Fourth Circuit had vacated his conviction, holding that defendants in Gary’s situation (namely those who had pled without being informed that the government had to prove they knew they were felons) were automatically entitled to plain-error relief. The United States sought cert only on whether this rule was correct. Justice Sotomayor agreed with the majority that it was not. But she would stop there and remand to the Fourth Circuit to decide in the first instance whether Gary might be able to make a case-specific showing that the Rehaif error in his case was potentially significant.

Finally, in Terry v. United States (No. 20-5904), the Court held that only those crack-cocaine offenders whose offenses triggered mandatory minimum sentences in the bad old days before the crack:powder disparity was mitigated are eligible to receive reduced sentences under the Fair Sentencing Act (which addressed the disparity) and the First Step Act (which made the Fair Sentencing Act retroactive). Offenders like Tarahrick Terry, whose offense did not trigger a mandatory minimum, do not qualify.

Writing for a unanimous Court, Justice Thomas described how Congress, responding to a perceived “crack epidemic,” overwhelmingly passed a crime bill that created mandatory-minimum penalties for various drug offenses, and set much lower trigger thresholds for crack offenses than for other drug offenses, including powder cocaine. (Thomas’s recounting of this history—and in particular a footnote pointing out that “[m]any black leaders in that era” supported the crackdown on crack—provoked a concurrence from Justice Sotomayor providing some additional context.) The Act created two base penalties that depended on drug quantity: a 5-year mandatory minimum (triggered by 5 grams of crack or 500 grams of powder) and a 10-year mandatory minimum (triggered by 50 grams of crack or 5 kilograms of powder). But it also created a third penalty—possession with intent to distribute an unspecified amount of a schedule I or II drug—that did not treat crack and powder offenses differently, did not depend on a drug quantity, and did not include a mandatory minimum. Terry was convicted and sentenced under the third penalty, for possessing with intent to distribute an unspecified amount of crack. He was sentenced to 188 months in prison, but the sentence was driven primarily by the fact that he was a career offender under the Sentencing Guidelines.

Two years after his conviction, Congress passed the Fair Sentencing Act, which reduced the powder:crack disparity by raising the crack quantity thresholds from 6 grams to 28 for the 5-year mandatory minimum and from 50 grams to 280 grams for the 10-year mandatory minimum. However, the changes did not apply to those (like Terry) sentenced before 2010. In 2018, Congress enacted the First Step Act, which made the 2010 changes retroactive and gave courts authority to reduce the sentences of certain crack offenders. Terry sought a sentencing reduction, arguing that he fell within the category of offenders covered by the two FSAs. The District Court and the Eleventh Circuit disagreed, holding that offenders are eligible for a sentence reduction only if they were convicted of a crack offense that triggered a mandatory minimum.

The Supreme Court affirmed, notwithstanding the Biden Administration’s decision not to defend the judgment. An offender is eligible for a sentence reduction only if he previously received “a sentence for a covered offense.” The First Step Act defines “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by” the Fair Sentencing Act. But the Fair Sentencing Act did not modify the statutory penalties for Terry’s offense. Before 2010, a person charged with possession with intent to distribute an unspecified amount of a schedule I or II drug was subject to imprisonment up to 20 years and up to a $1 million fine, or both. After 2010, the same penalties apply. Accordingly, he and others convicted of offenses that did not trigger the (modified) mandatory minimums are not eligible for resentencing.

Justice Sotomayor agreed with the Court’s judgment, though not with Justice Thomas’s “incomplete and sanitized history of the 100-to-1 ratio.” She wrote separately, not only to provide additional context to that history, but also to clarify the consequences of the Court’s decision—namely, that offenders like Terry have been left behind by Congress’s reforms, laudable as they have been. Justice Sotomayor argued that “[t]here is no apparent reason that career offenders sentenced under subparagraph (C) should be left to serve out sentences that were unduly influenced by the 100-to-1 ratio,” and urged Congress to “right this injustice.”  

That’s it for today’s Update. We’re expecting a lot of action at the Court next week: It’s scheduled to release opinions on Monday, Wednesday, and Friday. We’ll be back then to tell you all about them, as well as give you fuller discussions of yesterday’s three cases.

© 1998-2021 Wiggin and Dana LLPNational Law Review, Volume XI, Number 169
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Tadhg Dooley Appelate Attorney Wiggin Dana New Haven, CT
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Tadhg is a Partner in the firm’s Litigation Department, where his practice focuses on appellate and complex civil litigation. He has extensive experience handling appeals in state and federal courts throughout the country and has obtained favorable results for a diverse range of clients, from federal prisoners to foreign presidents, big companies to small towns. Among other recent successes, Tadhg helped a municipality overturn a $6.8 million verdict in the Connecticut Appellate Court, and helped a dental practice overturn a $3.7 million verdict in the Georgia Supreme Court. Tadhg has also...

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David Roth Litigation lawyer Wiggin Dana
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David is Counsel in Wiggin and Dana’s Litigation Department and a member of the firm’s Appellate, Art and Museum Law, and Intellectual Property Litigation practice groups. He has assisted insurers, universities, large companies, cultural institutions, and sovereign nations in a variety of complex civil litigation and appeals. Representative matters include trademark, copyright, and patent cases; insurance class-actions; art-ownership disputes; and high-stakes business litigation. David has also represented private individuals and companies in several criminal matters and...

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