SCOTUS Rules That Current Penalties Do Not Govern Whether Prior Conviction Is ACCA Predicate

I continue to be mystified by the Supreme Court’s jurisprudence on the Armed Career Criminal Act.  The Court has been remarkably active in taking ACCA cases in recent years, but I’m hard-pressed to see much coherence in the outcomes.  On the one hand, there is the Begay line of cases, which have substantially narrowed the definition of “violent felonies” that can be used as a predicate for the ACCA fifteen-year mandatory minimum.  (For background, see my post here.)  Yet, there are plenty of other ACCA cases – many involving short, unanimous decisions, as if the underlying legal issues were entirely unproblematic  – that adopt unnecessarily expansive interpretations of the ACCA triggering language.

Count the Court’s decision today in McNeill v. United States (No. 10-5258) in the latter category.

Here’s the background on McNeill from an earlier post:

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New Counsel, Continuances, and the Sixth Amendment — Lawyers Don’t Always Have to Take the Case as They Find It

The Seventh Circuit had an interesting new decision a couple weeks ago on the Sixth Amendment right to choice of counsel, United States v. Sellers (No. 09-2516).  Among other notable aspects of the case, former U.S. Supreme Court Justice Sandra Day O’Connor sat on the panel.

Here’s what happened:

Sellers initially retained attorney David Wiener to represent him against the drug and gun charges.  Apparently, shortly after Sellers engaged Wiener, Wiener approached attorney Michael Oppenheimer and asked him to appear as secondary counsel. Oppenheimer, by all indications, was a stranger to Sellers, having never been hired by him. Nevertheless, Oppenheimer filed an appearance, Wiener did not. (3)

Trial was set for May 12, 2008.  On May 7, Sellers requested a continuance so that he could proceed with counsel of his choice, David Weiner, who was scheduled to try another case in state court on May 12.  The district judge ultimately moved the federal trial back to May 19, but that conflicted with yet another case Weiner was scheduled to try in state court.

On May 16, Sellers informed the court that he wished to fire Oppenheimer and retain new counsel.  On May 19, the date trial was supposed to begin, Sellers informed the court that he had a new lawyer, but the new lawyer would only file an appearance if a continuance were granted so that he could adequately prepare for trial.  The court denied this request, requiring Sellers either to proceed pro se or with Oppenheimer.  Sellers chose Oppenheimer, and he was convicted and sentenced to fifteen years in prison.

The Seventh Circuit, however, held that the denial of a continuance violated Sellers’s right to counsel of his choice.

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Sentencing Commission Seems Likely to Make Crack Amendment Retroactive, But Who Will Benefit?

I testified earlier today before the U.S. Sentencing Commission on retroactivity for the new crack amendment.  Here are a few off-the-cuff impressions.  (Warning: this post will probably seem like a lot of inside baseball to anyone who does not practice federal criminal law.)

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