What Is an “Offense”?: Another ACCA Puzzle for the Courts

I’ve posted a few times on recent Armed Career Criminal Act cases (e.g., here).  With several Supreme Court decisions last term on the scope of the ACCA, this has been an especially dynamic area of federal sentencing law.  The cases nicely illustrate one of the fundamental problems with the ACCA, which is that Congress sought to single out certain categories of prior state convictions as triggers for the ACCA fifteen-year mandatory minimum, when each state criminal justice system has its own idiosyncratic structure, terminology, and practice norms.  Congress did not, and could not, take into account the particularities of fifty different systems when drafting the ACCA.  As a result, the courts have faced a steady stream of difficult cases requiring them to determine which types of prior convictions from which states actually count as a “violent felony” or a “serious drug offense” (three of which trigger the fifteen-year minimum).  The Supreme Court’s May decision in United States v. Rodriquez provides a good example of the difficulty.

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Should Sentencing Judges Be Required to Respond to Defendants’ Arguments for Lenience?

I address this question in a new paper I’ve just posted on SSRN entitled “Explaining Sentences.” Here is the gist of the paper. Since 2005, federal judges have had increased discretion to impose sentences below the range prescribed in the federal sentencing guidelines. Since the guidelines ranges are based almost entirely on the aggravating circumstances of the crime, defendants typically argue for below-range sentences based on mitigating personal circumstances (e.g., post-offense rehabilitation, effects of extended incarceration on innocent family members, positive record of military or other community service, mental illness, physical disability, age). Some precedent, perhaps most notably in the Seventh Circuit, indicates that sentencing judges should respond to such arguments even when they choose to impose a guidelines sentence, explaining to defendants why their arguments have been rejected. Other decisions, however, indicate that the sentencing judge need do little or nothing to explain a guidelines sentence. For instance, in Rita v. United States, the Supreme Court seemed to indicate it would suffice if the sentencing judge merely acknowledged the defendant’s arguments at some point somewhere on the record.

I think decisions like the one in Rita are unfortunate. Given what is at stake–often years of a person’s life–it seems a small enough imposition to require district court judges to explain themselves in a more thorough manner. Moreover, a robust explanation requirement may help to counteract the natural tendency of busy judges (as Judge Posner puts it) just “to impose the guidelines sentence and be done with it”–a practice that threatens to undermine the Supreme Court’s rejection of mandatory sentencing guidelines three years ago.

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Begay, Begone! ACCA, Aaak!

I’ve posted recently on some of the fallout from the Supreme Court’s April decision in Begay v.United States, but not yet commented on Begay itself.  It is a remarkable case.  After twelve convictions in state court for DUI, Begay was convicted in federal court for being a felon in possession of a firearm.  The sentencing judge found that his prior DUI felony convictions qualified Begay for a fifteen-year mandatory minimum sentence under the Armed Career Criminal Act, which applies to felon-in-possession defendants who have at least three prior convictions for a “violent felony.”  The Supreme Court reversed, determining that DUI is a not a “violent felony.”  I think this was the right result, but it was reached by the wrong means.

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