It's Armed Career Criminal Act day at the Supreme Court

Two criminal cases about the Armed Career Criminal Act greet new Justice Brett Kavanaugh at the Supreme Court this morning. (Our own Brenda Bryn will be arguing one of the cases.) Last night President Trump and Justice Kennedy had the ceremonial swearing in at the White House. All 8 Justices came to support their new "teammate." All of them looked uncomfortable while Trump spoke, except Justice Thomas who "vigorously" clapped throughout.

Looks like the protestors are out this morning before the argument.

There’s always a Miami connection, even for Justice Kavanaugh’s first SCOTUS argument

Justice Kavanaugh’s first oral argument sitting will be Tuesday. And the first argument is Stokeling v. United States, a case out of the Southern District of Florida. Assistant Federal Defender Brenda Bryn will be arguing for Mr. Stokeling. The issue is:

Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Rory Little at SCOTUSblog has more:

Questions arising under the Armed Career Criminal Act have plagued the Supreme Court since the statute was enacted in 1984 and amended in 1986. The statute imposes a 15-year mandatory-minimum imprisonment sentence on federal firearms offenders who have three prior “serious” drug or “violent” felony convictions, even if the prior convictions were under state law. But there is a remarkable variety among the 50 states regarding precisely how state criminal statutes are written, and how exactly those statutes are then interpreted by state courts across the nation. On October 9, the court will spend two hours considering three cases (two are consolidated for the second hour) that reveal, once again, the vagaries of the ACCA. It seems likely that the justices will have all three cases (as well as their prior expressions of unhappiness with the ACCA) in mind during the arguments. So the preview in United States v. Stitt and Sims, as well as this one, should be read for a full picture of the justices’ perspectives.

The first case on the October 9 docket is Stokeling v. United States. The question is what state law crimes of “robbery” should count as prior “violent felonies” under the ACCA. Denard Stokeling was convicted of an unarmed robbery in Florida in 1997; then in 2016 he was convicted federally for being a “felon in possession” of a firearm. If Stokeling’s 1997 prior robbery conviction counts as a “violent felony,” then his federal prison sentence in the current case would increase dramatically, from a 10-year maximum to the ACCA’s 15-year minimum.

***

The U.S. Court of Appeals for the 11th Circuit ruled in Stokeling’s case that the Florida state robbery crime does categorically meet the ACCA definition. But the U.S. Court of Appeals for the 9th Circuit recently ruled to the contrary (in United States v. Geozos, in 2017), finding that only “minimal” force is required under Florida law. Because Florida robbers apparently travel all across the country, the ACCA is invoked wherever they may subsequently commit a federal firearms crime. Certiorari was granted to resolve the circuit split.

At this point, lawyers may recall differing cases and hypotheticals from their 1L Criminal Law class: Does snatching a purse or chain or cash constitute “robbery”? Cases and definitions on this question of “how much force?” are split across the country. The answer is necessary in most states to distinguish simple theft from robbery, which can elevate a misdemeanor to a felony as well as make the difference between probation and prison time. Moreover, the ruling will apply to any other states that define “robbery” as Florida does. Thus the question presented in Stokeling is nationally important, and will affect the administration of the ACCA in federal courts around the country.

For his part, Stokeling points to a number of Florida state-court robbery cases that he says involved “only a slight degree of force.” He argues that the 11th Circuit’s view ignored not only the words but also the definitional spirit of Justice Antonin Scalia’s 2010 Curtis Johnson opinion, in which the “violent” in the ACCA’s “violent felony” was emphasized. He points out that in a subsequent decision (United States v. Castleman, in 2014), the court cited Johnson for the proposition that “the word ‘violent’ … standing alone ‘connotes a substantial degree of force.’” He argues that he should prevail on “a straightforward application of Curtis Johnson.”

Friday news and notes

1. Justice Stevens says NO to Kavanaugh. From the Palm Beach Post:

Retired U.S. Supreme Court Justice John Paul Stevens on Thursday said that high court nominee Judge Brett M. Kavanaugh, who Stevens once lauded in one of his books, does not belong on the Supreme Court.

Speaking to a crowd of retirees in Boca Raton, Stevens, 98, said Kavanaugh’s performance during a recent Senate confirmation hearing suggested that he lacks the temperament for the job.

Stevens, a lifelong Republican who is known for falling on the liberal side of several judicial rulings, praised Kavanaugh and one of his rulings on a political contribution case in the 2014 book “Six Amendments: How and Why We Should Change the Constitution.”

“At that time, I thought (Kavanaugh) had the qualifications for the Supreme Court should he be selected,” Stevens said. “I’ve changed my views for reasons that have no relationship to his intellectual ability … I feel his performance in the hearings ultimately changed my mind.”

2. In the WSJ, Kavanaugh says, but I was just emotional at the hearings. I won't be like that as a judge:

I was very emotional last Thursday, more so than I have ever been. I might have been too emotional at times. I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad. I testified with five people foremost in my mind: my mom, my dad, my wife, and most of all my daughters.

Going forward, you can count on me to be the same kind of judge and person I have been for my entire 28-year legal career: hardworking, even-keeled, open-minded, independent and dedicated to the Constitution and the public good. As a judge, I have always treated colleagues and litigants with the utmost respect. I have been known for my courtesy on and off the bench. I have not changed. I will continue to be the same kind of judge I have been for the last 12 years. And I will continue to contribute to our country as a coach, volunteer, and teacher. Every day I will try to be the best husband, dad, and friend I can be. I will remain optimistic, on the sunrise side of the mountain. I will continue to see the day that is coming, not the day that is gone.

I revere the Constitution. I believe that an independent and impartial judiciary is essential to our constitutional republic. If confirmed by the Senate to serve on the Supreme Court, I will keep an open mind in every case and always strive to preserve the Constitution of the United States and the American rule of law.

3. Meantime, the 11th Circuit had 153 pages of en banc-ness yesterday in another Johnson follow up case, called Ovalles. One of our newer judges, Newsom, wrote the majority opinion. (Strangely it doesn't say who joined the opinion). Bill Pryor wrote a concurrence (joined by Ed Carnes, Tjoflat, Newsom, and Branch). Martin wrote a dissent. Jill Pryor wrote a dissent (in which Wilson, Martin, and Jordan joined).

Newsom's opinion explains:

The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense—punishable by a term of imprisonment ranging from five years to life—for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here—§ 924(c)(3)’s “residual clause”—defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
***
The obvious (and decisive) question, then: Which is it here—categorical or conduct-based? Because we find ourselves at this fork in the interpretive road—the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895). The pivotal issue, therefore, is not whether § 924(c)(3)’s residual clause is necessarily, or even best, read to incorporate a conduct-based interpretation—but simply whether it can “reasonabl[y],” see id., “plausibl[y],” Clark v. Martinez, 543 U.S. 371, 381 (2005), or “fairly possibl[y],” I.N.S. v. St. Cyr, 533 U.S. 289, 300 (2001), be so understood. Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach—and therefore, under the constitutional-doubt canon, that it must be.
Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense. To the extent that our earlier decision in United States v. McGuire, 706 F.3d 1333 (11th Cir. 2013), holds otherwise, it is overruled.

Pryor's concurrence starts out this way:

How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.

Martin:

As United States Circuit Judges, we have been given great power and privilege. And our positions call upon us to decide the fate of many people who have neither. In a nation that incarcerates a larger percentage of its population than almost all others, federal judges devote much time to examining (and reexamining) the sentences imposed on people serving time in our federal and state prisons. The interpretation the majority of this en banc Court gives to the sentencing statute at issue here, which gives no relief for Irma Ovalles, presents the opportunity to review the development of this Circuit’s sentencing jurisprudence in recent years. My review reveals a body of law that has relentlessly limited the ability of the incarcerated to have their sentences reviewed. Decisions of this Court have left only a narrow path to relief for those serving sentences longer than the law now allows. Yet this narrow path is not mandated by decisions of the Supreme Court or by Acts of Congress. Indeed, this Court has withheld relief from prisoners even when precedent counsels otherwise.

This paragraph struck me:

My final observation about the majority’s en banc ruling against Ms. Ovalles is to note that the majority opinion makes much of the fact that the government has asked us to abandon the categorical approach in interpreting § 924(c)(3)(B). See Maj. Op. at 29–30. Judge Jill Pryor’s dissent explains why this consideration should not factor into our analysis of the statute at issue. Jill Pryor Dissent at 144–45. I would add that, when deciding whether Johnson was retroactive, we paid no heed to the government’s concession that it was. See supra at 1–2. If we are going to defer to the government’s view, we should do so whether it advocates for or against relief for the prisoner.

And finally, here's Jill Pryor:

This case—with all its textual analysis, discussion of canons of statutory construction, and parsing of precedent—may come across like a purely academic exercise. In reality, it is anything but. People who are serving sentences of five years to life under § 924(c) will get no relief from this Court even though the Supreme Court held that an identically-worded statute was so vague that its enforcement violated the right to due process under law. For the reasons I explain in more detail below, I respectfully dissent.

BREAKING — Two New Magistrate Judges

They are

Jacqueline Becerra
and
Lisette Reid

Congrats!

So you want to be a Magistrate Judge

The Southern District of Florida will be holding its judges' meeting today in West Palm Beach. There it will interview the 6 candidates for Magistrate Judge and select two. A reminder that those six are:

Jacqueline Becerra
Sowmya Bharathi
Steven Petri
Lisette Reid
Alex Soto
Erica Zaron

Good luck to all!

BREAKING -- Magistrate Judge list cut to 6

The Magistrate Judge Selection Committee interviewed 15 candidates today and narrowed the list to 6. The district judges have their meeting this week and will select two from the following:

Jacqueline Becerra
Sowmya Bharathi
Steven Petri
Lisette Reid
Alex Soto
Erica Zaron

Congratulations to all six.

First Monday in October

Welcome Back!

It’s the First Monday in October but we only have 8 Justices.  That may change by Friday or we may be starting a new confirmation process.  Too hard to predict with so much happening.

The first case that was heard today dealt with endangered frogs, and two Justices decided to make “drain the swamp” references.  Here’s The NY Times coverage of the argument:

There was no empty chair to mark the absence of a ninth justice, and no mention of the confirmation fight. Instead, Chief Justice John G. Roberts Jr. started the session with a nod toward continuity, noting that it was the 25th anniversary of Justice Ruth Bader Ginsburg’s investiture. “We all look forward to sharing many more years with you in our common calling,” the chief justice said.

Justice Ginsburg, who is 85, smiled and nodded.

Soon afterward, the eight justices turned their attention to the fate of the dusky gopher frog. They discussed draining the swamp, but not as a figure of speech.

The species is in danger of extinction, and the only known remaining frogs live in the De Soto National Forest in Mississippi. In 2012, the federal government came up with a backup plan, designating private land in Louisiana as “critical habitat” for the frogs’ survival. None of the frogs live there now, and the designation could limit the ability of the owners to develop the land, by one account potentially costing them about $33 million.

While we wait for a full Court, here’s your moment of zen from SNL:

Next up, prosecutor Rachel Mitchell. #SNLPremiere pic.twitter.com/13uZEO29Mr

— Saturday Night Live - SNL (@nbcsnl) September 30, 2018

Should Kavanaugh be confirmed if we don’t know who is telling the truth?

That’s the title of the final installment of my trilogy in The Hill on the Kavanaugh hearings.

From the intro:

After Christine Blasey Ford’s testimony, there seemed to be a consensus — including even Republicans — that Ford was credible and that Brett Kavanaugh’s confirmation was in serious trouble.

She was respectful, soft-spoken, calm, and tried to be helpful. She did not interrupt anyone and did not argue with the Senators. Republicans were hoping that she would come off as unsure, politically driven, or even unstable. She came across just the opposite. She was “100 percent sure” it was Kavanaugh, she never mentioned politics, and she came across as likable. President Trump was reportedly upset that Republicans were caught flat-footed by just how credible Ford was.

Then came Kavanaugh. He strode in holding his wife’s hand. She and his mother sat behind him as he began his opening remarks. His demeanor was the opposite of Ford’s — angry, indignant, and emotional. He interrupted the Senators and argued with them. Although very different than Ford, his demeanor was also effective and seemed to reinvigorate his supporters, who during the lunch break had been feeling defeated. He forcefully said again and again that he was 100 percent innocent. Energized Republicans took over the questioning from the prosecutor they had planned to let run the proceeding. The nomination, on life support after Ford’s testimony, seemed to be very much alive.

But what now? It seems we are in no better spot than when we started Thursday morning in terms of figuring out what happened 36 years ago: Those who believed Ford still believed Ford, and those who believed Kavanaugh still believed him.