Brown v. United States (22-6389)

argument 22-6389

Brown v. United States

Supreme Court of the United States 1h 24m 8 speakers 8 chapters transcribed 8 days ago official recording ↗

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What is the central legal question about ACCA’s drug‑schedule reference?

John G. Roberts 0:00

We'll hear argument this morning in case twenty two sixty three eighty nine, Brown versus United States and the consolidated case.

0:07

Mr.

Mr. Green 0:07

Green. Mr Chief Justice. and may it please the court. Once more we confront the Armed Career Criminal Act. This time with regard to which drug schedules, a sentence in court is to consult in order to determine whether a prior State drug crime is a match with those Federal schedules and thus either is or is not a predicate under the ACCA. We submit that The sentencing court should use the schedules that are current at the time of sentencing. That is because at its core the ACCA is a sentencing enhancement. It is not a crime unto itself. And this court has said uh that the ordinary practice is to apply current law, including at sentencing. There is no reason to deviate from that ordinary practice here. The statute is phrased in uniformly present terms.

Mr. Green 1:07

The goal of the ACCA is to incapacitate only the most serious offenders. And finally, to do otherwise, as the government suggests, would be to ignore entirely the Congress's choice to change those drug schedules with the twenty eighteen Farm Bill. With that, I invite the Court's questions.

Clarence Thomas 1:31

Uh Mr Green, didn't we say in McNeil that uh looking at the statute is a backward looking exercise?

Mr. Green 1:38

You certainly did, Justice Thomas. And McNeil, however, is actually a complement in some sense for this case, not a barrier. And the reason why I say that is that McNeil looked at the historical facts of the State crime. We are now engaged in the present tense effort to figure out what the Federal sentence should be in including a potential ACCA mandatory minimum enhancement. McNeil acknowledged, as I just said, that the statute is phrased in the present tense. But McNeil found a particular problem, and that was that if a State reformulates its criminal laws, and the Court pointed to a Sixth Circuit case about how to assess drug weight. Uh Different prior state crimes could disappear because a a court couldn't figure out under the new formulations what the maximum sentence would be.

Clarence Thomas 2:39

So let me ask you a question, uh and then I'll let you go. But um what if the same y using your logic and your approach, uh there was uh uh a crime, some a a state offense that was not on schedule, that was not included uh on the control subs uh substance schedule. But then subsequently uh after the commission of the state crime, uh but before sentencing it's added. Uh how would you uh how would that work under your logic or your approach?

Mr. Green 3:15

Well, if the government if the government tried to make that a match, I think the defendant might have the opportunity to claim that that was an ex post facto application of the law. In other words, it wasn't a match at the time of the offense, but it is now a match at sentencing. And we would say, under our approach, that yes, it is a match, but the ex post facto a very important thing. uh the uh the newer drug schedules there, and there you would shift back to the drug schedules that apply at the time of uh the Federal offense, the nine twenty two G offense.

Elena Kagan 3:55

Isn't that an argument why the your reading is strained? you're building in an ex post facto problem.

Mr. Green 4:03

Well, respectfully, Your Honor, um we're not building in an ex post facto uh uh problem because there already is an ex post facto problem. In other words, we're not avoiding a constitutional question here. This court decided in Pew that a uh if after the commission of the Federal crime the sentencing range shifted upward, that would be an ex post facto problem. problem and that was because of the way that the uh guidelines anchor the sentence. Certainly here where we have uh a statute and not any kind of discretionary exercise, there would be an ex post facto problem potentially with the application of the the new drug schedules to uh that had a uh that that added

Elena Kagan 4:55

what purpose your rule has to putting a defendant on notice as to what his potential liability may be. at the moment he commits the federal offense. At at that point he has no idea what an enhancement may or may not be.