Earlier this week the Supreme Court granted cert. in Wooden v. United States, SCOTUS No. 20-5279, which concerns the interpretation of the ACCA’s requirement that each of the three required prior convictions arise from offenses “committed on occasions different from one another . . . .” 18 U.S.C. § 924(e)(1). The Court will likely resolve a Circuit split on whether mere temporal distinctness between two offenses suffices to satisfy the requirement of separateness, or whether a broader inquiry is necessary.1
In Mr. Wooden’s case, the Sixth Circuit ruled that his burgling of 10 different units at the same Georgia mini-storage facility, one after another, which resulted in a guilty plea to 10 counts of burglary more than twenty years ago, constituted 10 separate burglaries for purposes of the ACCA, even though everything occurred at the same location over a short period of time. Several Circuits agree with the Sixth. But other Circuits reject this simplistic approach — essentially, “crimes are committed on different occasions whenever they take place sequentially, even if only minutes apart at the same location” — “instead conducting a broader inquiry into whether offenses arose under the same circumstances or resulted from the same criminal opportunity.”
The Second Circuit falls in the latter camp. Here, a defendant’s prior convictions are deemed convictions for offenses “committed on occasions different from one another” only if the defendant committed the offenses in distinct “criminal episodes.” United States v. Towne, 870 F.2d 880, 889–91 (2d Cir. 1989); see also United States v. Rideout, 3 F.3d 32, 34–35 (2d Cir. 1993). Wooden’s 10 burglaries would count as one.
Since practitioners here already benefit from the rule sought by Wooden, a favorable answer in his case on this narrow question would not help us. But a more basic question, conceptually prior to and subsumed in the question presented, may be quite useful. And who knows, the Supreme Court may reach that fundamental question — and the same originalist – liberal coalition that led to Johnson (2015) (and Dimaya (2018) and Davis (2019)) may yield another defense-favorable ACCA decision.
That question is whether the rule of Apprendi v. New Jersey (2000) and Alleyne v. United States (2013) applies to the ACCA’s separateness requirement. Apprendi / Alleyne held that any fact, “other than the fact of a prior conviction,” that raises the statutory minimum or maximum sentence constitutes a statutory “element” that must be alleged in the indictment and either proved at trial or admitted at a guilty plea. Obviously, whether prior offenses were “committed on occasions different from one another” raises the statutory minimum for a § 922(g) offense – from 0 to 15 years – so the question is whether this “fact” falls within the exception for facts “other than the fact of a prior conviction” (the so-called recidivism or Almendarez-Torres exception).
Oldsters know that the Second Circuit long ago rejected this argument, holding in United States v. Santiago, 268 F.3d 151 (2d Cir. 2001) (Sotomayor, J.), that ACCA’s separateness requirement was a typical recidivist “sentencing enhancement” falling within the Almendarez-Torres exception and thus could be found solely by a judge at sentencing. We also know that challenges to the exception itself have repeatedly failed.
But who knows – the Supreme Court has never encountered the issue (and it’s been nearly a quarter of a century since Almendarez-Torres).Given the strong societal tide against recidivist laws generally and the current composition of the Court, a favorable decision is not unimaginable.
Or, just as good, maybe the Court will rule, a la Johnson – Dimaya – Davis, that the separateness requirement is void for vagueness. As noted, the question accepted for review by the Court criticizes the requirement as “vague.”
So a simple suggestion for now: Object to all ACCA sentences on the ground that the sentence violates Apprendi / Alleyne, because the separateness requirement is an element that cannot be found by the judge at sentencing (or because the requirement is void for vagueness). Until the Court decides Wooden, . . . ya never know.2
1 The precise question the Court will answer isn’t crystal clear, because (1) the cert. petition was filed pro se – Bravo, Mr. Wooden ! — and (2) the Court simply said that cert. was granted as to “Question 2” of that petition, which (3) states “DID THE SIXTH CIRCUIT ERR BY EXPANDING THE SCOPE OF 18 U.S.C. § 924(e)(1) IN THE ABSENCE OF CLEAR STATUTORY DEFINITION WITH REGARD TO THE VAGUE TERM ‘COMMITTED ON OCCASIONS DIFFERENT FROM ONE ANOTHER?’” (allcaps in original).
Happily, Mr. Wooden is now in able hands: “Wooden filed his petition for review on his own but is now represented by lawyer Allon Kedem of Arnold & Porter, who argued in his reply brief that ‘offenses are not committed on different ‘occasions’ just because they occur sequentially’” and that “[o]ne night in a storage facility does not an ‘Armed Career Criminal’ make.” (from Scotusblog).
2 For completeness sake, there is another question subsumed by the question in Wooden – what can the sentencing court rely on to determine whether prior convictions are “committed on occasions different from one another”? Is this inquiry limited to Shepard-approved documents, like the inquiry into the nature of the offense under the modified categorical approach — or is a broader examination of the record permitted? The Second Circuit (and I believe every other Circuit to have considered the question) applies Shepard to the separateness inquiry, see United States v. Dantzler, 771 F.3d 137 (2d Cir. 2014), but who knows what the Supreme Court thinks.