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Supreme Court Grants Cert.
The Supreme Court granted cert. in 17 cases, including cases raising the several important criminal law issues. Consider raising and preserving these in your appropriate pending cases.
I. ACCA Issues
Begay v. United States, No. 06-11543: The Supreme Court will be reviewing whether felony drunk driving is a “violent felony” within ACCA's residual clause. Decision below: 470 F.3d 964 (10th Cir. 2006).
Overview: In September 2004, Larry Begay threatened to shoot his sister with a rifle if she did not give him money. He repeatedly pulled the trigger but the rifle did not fire. Begay pleaded guilty to being a felon in possession of a firearm. Begay also had twelve previous convictions for driving while intoxicated (DWI), with three being felonies. The District Court for the District of New Mexico found that a felony DWI is a “violent felony” under the ACCA. With convictions for three such felonies, Begay was subject to a mandatory minimum of fifteen years.
Begay’s priors invoked ACCA status and an advisory Guideline sentencing range of 188 to 235 months. Begay contended the Guideline range was too high, for a variety of reasons and requested a sentence of 180 months, the mandatory minimum permitted under the ACCA. The District Court concluded that to go below the Guidelines, the sentence would have to be unreasonable, and the Guidelines range was not unreasonable. On appeal, the Tenth Circuit held that felony driving while intoxicated is a violent felony under the ACCA, and a district court may impose a sentence outside the Guideline range even if a sentence within that range would be reasonable. The Court of Appeals stated that in any given case there could be a range of reasonable sentences that includes sentences both within and outside the Guidelines range, and that the Guidelines are considered advisory. The government appealed.
United States v. Rodriquez, No. 06-1646, which raises the issue of whether a state drug crime conviction, for which state law authorized a ten-year sentence only because the defendant was a recidivist, qualifies as a “serious drug offense” under ACCA .
The defendant was previously convicted of three drug offenses in Washington State, the maximum penalty for which was five years; however, for a second or subsequent drug offense, the maximum penalty was 10 years. Under ACCA, a "serious drug offense" is a qualifying predicate offense if it carries a maximum penalty of ten years or more. The question then is whether the district court should consider the maximum penalty as provided in the five-year statute of conviction (which would not trigger the ACCA enhancement), or consider the maximum ten-year penalty resulting from the recidivism provision (which would trigger the ACCA enhancement). Following U.S. v. Corona-Sanchez, 291 F.3d 1201 (9th Cir. 2002) (en banc), the Ninth Circuit held that under the Taylor categorical approach, the district court could not consider the recidivism provision and affirmed the non-ACCA sentence imposed on the defendant. The government appealed. Decision below: 464 F.3d 1072 (9th Cir. 2006) .
Overview: The defendant had multiple warrants out for his arrest and was being watched by law enforcement prior to his arrest. When officers arrested defendant, they asked the resident of the apartment in which defendant was living if they could search the premises and the resident agreed. The officers found a handgun in the home and charged defendant with Felon in Possession of a Firearm. The district court denied defendant’s motion to suppress evidence based on an illegal search and subsequently found him guilty. The Ninth Circuit Court of Appeals found that the district court did not err in denying the motion to suppress by weighing the following five factors to determine if resident consented to the search: (1) resident was not in custody, (2) the arresting officers did not have their guns drawn, (3) Miranda warnings had been given to the defendant but not to resident, (4) the resident had been told that she had the right not to consent, (5) the resident had been told that a search warrant could be obtained. The court also found that defendant’s conviction for delivery of a controlled substance, in violation of Washington law, did not qualify as predicate “serious drug offense,” for purpose of sentencing enhancement under Armed Career Criminal Act (ACCA). Defendant has appealed consent issue and government has appealed the ACCA ruling.
Note: The First Circuit in U.S. v. Duval, 2007 U.S. App. LEXIS 18697, (1st Cir. 8/7/07) recently held Maine Assault and Battery, 17-A M.R.S.A. § 207, while normally a misdemeanor, on becomes a felony under Maine’s recidivism law 17-A M.R.S.A. § 1252(4-A) bumped the prior to felony status (2 priors increase sentencing class by 1 level, here from a D to a C). Court adopts “recidivist assault” as a felony noting “anomalies” and a circuit split.
II. Waiver of Right to Jury Selection by Article III Judge Gonzalez v. United States, No. 06-11612. Must a federal criminal defendant must personally (not just through counsel) waive his right to have an Article III judge (rather than the magistrate) preside over voir dire ? Here, the Magistrate judge asked if the parties consented to his presiding over jury selection, and the defendant's attorney answered, "yes." The defendant was present in court but it appears that he did not have a translator at the time the question about consent was asked, and the magistrate judge never asked the defendant personally whether he consented to the magistrate judge conducting voir dire. The Fifth Circuit held that the right to have an Article III judge conduct voir dire was not so fundamental that it required the personal waiver of the defendant. Decision below: 483 F.3d 390 (5th Cir).
III. Fourth Amendment: Search Incident to Arrest Virginia v. Moore, No. 06-1082. Does the Fourth Amendment require the suppression of evidence obtained incident to an arrest that is based on probable cause, but where the arrest violates a provision of state law.
Defendant was stopped for driving on a suspended license, a Class 1 misdemeanor punishable by a statutory maximum of 1 year in jail, for which under applicable state law he could only have received a summons and not been subjected to a full custodial arrest. Nonetheless, he was arrested in violation of state law. A search incident to the arrest revealed 16 g of crack and $516 in cash. He was charged with possession with intent to distribute. The Virginia supreme court suppressed the evidence, holding that the outcome was controlled by Knowles v. Iowa, 525 U.S. 113 (1998) (state law permitting full search of car upon issuance of speeding citation violates Fourth Amendment even if officer has probable cause to arrest). In 1998, in a unanimous opinion by Chief Justice Rehnquist, the U.S. Supreme Court refused to extend the bright-line exception of "search incident to an arrest," to situations involving a citation. Knowles v. Iowa. In this case, the Virginia Supreme Court unanimously held that law enforcement officers who had authority only to issue a summons to defendant, who was driving on a suspended license, and not to arrest him, violated his fourth amendment rights by conducting a full field-type search, and therefore the court suppressed the fruits of the search. The court distinguished the case of Atwater v. City of Lago Vista, in which the Supreme Court held that “[i]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender,” because in Atwater there was a Texas statute that expressly authorized “any peace officer [to] arrest without warrant a person found committing a violation” of [the Texas] seatbelt laws, whereas the Virginia statute did not authorize officers to arrest for driving on a suspended license. Decision below: 636 S.E.2d 395.
IV. Eighth Amendment: Death Penalty / Lethal Injection Baze v. Rees, No. 07-5439. This case raises a host of issues pertaining to the constitutionality of lethal injections, including: 1. Whether the Eighth Amendment prohibits methods of execution that create an unnecessary risk of pain and suffering, as opposed to a substantial risk of the wanton infliction of pain; 2. Whether a method of execution creates an unnecessary risk of pain and suffering in violation of the Eighth Amendment where readily available alternatives that impose less risk of pain and suffering could be used; 3. Whether the continued use of sodium thiopental, pancuronium bromide, and potassium chloride [the 3 chemicals used in all lethal injection states except NJ], individually or together, violate the cruel and unusual punishment clause of the Eighth Amendment because lethal injections can be carried out by using other chemicals that pose less risk of pain and suffering; and 4. Whether substantive due process requires a state to be prepared to maintain life in case a stay of execution is granted after the lethal injection chemicals are injected when the effects of such chemicals are reversible if proper action is taken. 5. Whether execution by lethal injection violates the Eighth Amendment where the protocol poses a risk of pain and suffering.
Overview: Two inmates were convicted of double murders and were sentenced to death. Both inmates exhausted their means of appeal. Under Kentucky law, an inmate has a choice between electrocution and lethal injection. Both inmates refused to select a method. Under the law, lethal injection is the default method of execution. After the default selection, the inmates brought suit requesting declaratory relief from death by lethal injection. The inmates argued that the method of lethal injection was cruel and unusual punishment forbidden by the Eighth Amendment of the United States Constitution and Section 17 of the Kentucky Constitution. The Franklin Circuit Court (Kentucky) denied the request, holding that the protocol conformed to the standards set forth under the Kentucky Constitution. The trial judge also held that the inmates failed to meet their burden of proof by a preponderance of the evidence on their claims that: the methods deviated from “contemporary norms and societal standards in regard to capital punishment,” the methods offended the dignity of these prisoners and society as a whole, the methods caused unnecessary physical pain and psychological suffering, and the methods deprived the inmates of due process and fundamental fairness. The Supreme Court of Kentucky affirmed these holdings in declaring that neither electrocution nor lethal injection were unconstitutional methods of punishment. Though there is likely pain inherent in both procedures, a complete absence of pain is not required by the prohibition against cruel and unusual punishment. Baze appealed. Decision below: 217 S.W.3d 307, (KY Supreme Court 2006).
V. Definition of "Aggravated Felony" for Deportation Purposes Ali v. Achim, No. 06-1346: Although not strictly speaking a criminal case, this case presents two issues -- whether a crime that is not an aggravated felony can nonetheless be classified as a "particularly serious crime" that bars eligibility for withholding of removal under 8 U.S.C. section 1231(b)(3)(B), and the proper scope of review over "particularly serious crime" determinations. The Supreme Court's decision on these issues may have some spill-over effect based on Leocal. Decision below: 468 F.3d 462.
All of the pleadings in these cases and further descriptions of the issues presented in them are available at |