Special Thanksgiving Edition – November 22, 2023 --

U. S. Supreme Court Happenings– Week ending November 24, 2023 –

On Monday, the Supreme Court granted cert in Erlinger v. US, (No. 23-370). Here is the formal Question Presented from the federal government's cert petition:

Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were “committed on occasions different from one another” before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).

However, here is the interesting part of this case. Petitioner [contends] that the Sixth Amendment requires a jury to find (or a defendant to admit) that predicate offenses were committed on different occasions under the ACCA. In light of this Court’s recent articulation of the standard for determining whether offenses occurred on different occasions in Wooden v. United States, 595 U.S. 360 (2022), the government agrees with that contention. Although the government has opposed previous petitions raising this issue, recent developments make clear that this Court’s intervention is necessary to ensure that the circuits correctly recognize defendants’ constitutional rights in this context. This case presents a suitable vehicle for deciding the issue this Term and thereby providing the timely guidance that the issue requires.
Professor Douglas A. Berman of Ohio State University believes that though this case deals with a relatively little issue in the application of ACCA, we cannot help but wonder if this case could prove to be a big Sixth Amendment case. Notably, we have not had a significant Sixth Amendment case on sentencing issues before the Supreme Court since Haymond, and that was before Justices Barrett and Jackson were members of the Court. Moreover, Justice Thomas has suggested that he disagrees with the entire prior-conviction exception to Sixth Amendment rights (on originalist grounds), so maybe this ACCA issue could even provide the Court an opportunity to reconsider that (historically suspect) exception altogether.
We assume Erlinger v. United States, will get argued in the spring and may end up one of the last cases to get decided by the Justices this Term.

It is also interesting to note that the current Supreme Court Term is full of drugs cases on their docket. Specifically, at least five criminal cases on the Supreme Court's docket that are integrally connected to big issues in drug prosecutions and sentencings as follows:
Pulsifer v. U.S., No. 22-340 [argued 10.2.2023]: sentencing in federal drug cases;
Culley v. Marshall, No. 22-585 [argued 10.30.2023]: due process rules for forfeitures (often in drug cases);
Brown v. U.S., No. 22-6389 [to be argued 11.27.2023]: defining serious drug offenses for ACCA sentencing;
Smith v. Arizona, No. 22-899 [to be argued: 1.10.2024]: Confrontation Clause rules for experts (often in drug cases); and
Diaz v. U.S., No. 23-14 [still to be set for argument]: expert testimony on mens rea in drug offense.

COMMENT:

We hope you have at least one good meal for Thanksgiving.

We are offering a month-end Black Friday special starting this Friday and ending December 1, 2023. In all of our full pleadings, such as direct appeals, § 2255 motions, compassionate releases, 3582(c)(2) motions, etc ., we are giving a 20% discount. Please ask for details when you contact our representatives. This does not apply to written case evaluations. We also see that President Biden is pardoning turkeys for Thanksgiving, while 18,000 wait in prison.

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