RISING TO THREE OCCASIONS: THE SUPREME COURT GRAPPLES WITH HOW TO COUNT PRIOR CONVICTIONS IN THE ACCA CONTEXT

By: Haley Wallace, Volume 106 Staff Member

The Armed Career Criminal Act (ACCA)[1] was enacted to severely punish society’s worst criminal offenders.[2] Congress passed the ACCA in 1984 specifically to target the “most dangerous, frequent, and hardened offenders,”[3] and to “incapacitate the armed career criminal for the rest of the normal time span of his career.”[4] The statute, in furtherance of its purpose, imposes a fifteen-year mandatory minimum prison sentence on defendants who possess a gun and have three previous convictions “for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”[5] A pending Supreme Court case, Wooden v. United States,[6] grapples with how to define and delineate “occasions” within the meaning of the statute.

Oral argument in Wooden occurred on the first day of the October 2021 term.[7] In order to tease out the precise boundaries of an “occasion,” the Justices questioned counsel about hypothetical crimes occurring sequentially under a dark and moonless night,[8] a crime boss orchestrating discrete crimes over multiple phone lines simultaneously,[9] and Jesse James holding up passengers in separate train cars of a train.[10] At one point, Mr. Kedem, the attorney arguing on behalf of Wooden, remarked “I feel like this is a law school exam.”[11] Hypotheticals aside, the Court should find, based on the ACCA’s text and purpose, and, if necessary, the rule of lenity, that “occasions different from one another” must mean something beyond separate convictions—that is, it must mean separate criminal episodes.

I. BACKGROUND

In March of 1997, William Wooden, along with three other men, broke into the storage facility neighboring his home in Georgia and burgled several storage units.[12] After entering and burgling the first unit, Wooden broke through the drywall to get to the next, burgled it, and continued to do so through ten separate units.[13] Wooden was charged with ten counts of burglary—one for each storage unit—and pleaded guilty to all counts.[14] His plea was accepted, and he was sentenced to eight years for each count, served concurrently.[15]

Nearly twenty years later, in November 2014, police came to Wooden’s home searching for a fugitive whose car had been parked nearby.[16] An officer entered Wooden’s home and found a rifle.[17] Knowing Wooden was a convicted felon, police arrested him for being a felon in possession of a firearm, which would normally carry a maximum sentence of ten years.[18] In fact, Wooden was only facing twenty-one to twenty-seven months, per a probation office report and recommendation, and was prepared to plead guilty until the prosecution decided to label him a career criminal.[19] Now facing a fifteen-year minimum sentence, Wooden withdrew his plea, was tried and convicted, and sentenced to 188 months (about fifteen years) in prison—the lowest end of the Sentencing Guidelines after the ACCA enhancement.[20]

The government’s argument at trial was that in one night Wooden committed those crimes on ten different occasions because “[y]ou cannot be in two locations at the same time,”[21] apparently using location as the factor differentiating one occasion from another. The Sixth Circuit affirmed.[22] Wooden appealed again, now to the Supreme Court, where the government argued that Wooden’s ten burglaries were sequential (rather than simultaneous), separated in time and location, and affected ten separate victims, and therefore should be considered ten “occasions different from one another” for sentencing purposes under the ACCA.[23] In support of its argument, the government emphasized that each crime of burglary was finished before the next began, and Wooden and his associates actively decided to commit another crime each time they entered a new storage facility.[24] The government’s argument is described as an elemental approach, because it focuses on the elements of one crime being completed before the next crime begins.[25]

Wooden, on the other hand, argued that the term “occasion” should be defined as “a juncture of circumstances,” or “a common opportunity.”[26] Essentially, he argued that because the crimes giving rise to ten separate burglary convictions all occurred on the same night, in one criminal episode, continuously, and uninterrupted by any outside or intervening forces, they should be considered one occasion for sentencing purposes.[27] One of the central arguments Wooden made is that the natural use of the English language supports his position: it is more natural to say that Wooden burglarized ten units on one occasion than it is to say he burglarized a unit on one occasion, moved on to the next and burglarized it on a separate occasion, and so on, ten times.[28]

As the analysis below demonstrates, the Court should side with Wooden, and clarify that “occasions different from one another” requires a differentiation greater than the completed elements of each crime.

II. ANALYSIS

As with all matters of statutory interpretation, the analysis begins with text of the statute.[29] Courts are to “presume that the legislature says in a statute what it means and means in a statute what it says there.”[30] The ACCA’s text applies its mandatory minimum to defendants who have “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.”[31] The plain language here differentiates “convictions” from “occasions” simply by including the phrase “on occasions different from one another.” Applying the canon against superfluity, courts are to read each term to have independent meaning.[32] If Congress had intended to apply the mandatory minimum sentence to defendants with “three prior convictions,” it would not have added the subsequent qualifying phrase.

Additionally, though the title of an act is not law, it can be informative for interpretation.[33] The phrase “career criminal” in the Armed Career Criminal Act implies that the crimes must have been committed over a long period: a career is literally defined as “a job or profession that someone does for a long time.”[34] Under the government’s reading of the statute, Wooden became a career criminal in the time it took him to get from the first storage unit to the third—likely a matter of minutes.

However, the lower courts have not been convinced by the plain language arguments made in this case; both the district court and the Sixth Circuit ruled against Wooden’s textual interpretation.[35] In cases where the text is inconclusive, Courts may look to legislative purpose and history.[36] As noted above, the ACCA was passed by Congress to incapacitate the “most dangerous, frequent, and hardened offenders.”[37] It is difficult to conceive that Congress would have intended that breaking into ten (let alone three) storage units within the span of one night would transform a defendant into a hardened criminal.

In that regard, the case of United States v. Petty[38] is informative. There, Samuel Petty was convicted of six counts of robbery for one stickup of a Manhattan diner.[39] Later, he was arrested for possession of multiple loaded firearms.[40] Counting the six robbery convictions arising out of the same incident as separate occasions, Petty’s sentence was enhanced under the ACCA.[41] The sentence was upheld by the Eighth Circuit, which reasoned that the six robberies affected six different victims, and therefore should be counted separately.[42] However, when Petty appealed his enhanced sentence to the Supreme Court, the Solicitor General admitted error, stating “legislators intended that prior convictions would be based on multiple criminal episodes that were distinct in time.”[43]

The facts in Wooden are virtually indistinguishable from those in Petty. In both cases, the defendant was convicted of multiple crimes arising out of a single criminal episode affecting multiple victims, and had their sentences enhanced under the ACCA accordingly. The Solicitor General admitted then that the Act was not intended to punish offenders like Wooden and Petty so severely.

Should the Court fail to find the text and legislative history sufficient to decide the “occasion” issue here, the ACCA is vague at best. In cases of vagueness, “criminal statutes, including sentencing provisions, are to be construed in favor of the accused.”[44] In Wooden’s case, that would mean construing “occasions different from one another” as necessarily different episodes, not as multiple crimes arising out of the same incident.

Based on the ACCA’s text and purpose, and the rule of lenity, the Court should hold that “occasions different from one another” means separate criminal episodes, and therefore Wooden should not be subject to its mandatory fifteen-year sentence.

 

[1] 18 U.S.C. § 924.

[2] S. Rep. No. 97-585, at 5 (1982).

[3] Id.

[4] Id. at 7.

[5] 18 U.S.C. § 924(e)(1) (emphasis added).

[6] No. 20-5279.

[7] Transcript of Oral Argument at 1, Wooden v. United States, No. 20-5279 (Oct. 4, 2021).

[8] Id. at 17.

[9] Id. at 20–22.

[10] Id. at 26–27.

[11] Id. at 35–36.

[12] Brief for Petitioner at 4, Wooden v. United States, No. 20-5279 (May 3, 2021).

[13] Id. at 4.

[14] Id. at 4–5.

[15] Id.

[16] Brief for United States in Opposition to Certiorari at 2, Wooden v. United States, No. 20-5279 (Dec. 1, 2020).

[17] Petition for Writ of Certiorari at 2, Wooden v. United States, No. 20-5279 (July 24, 2020). The details of the incident are disputed. Compare id. at 2–3 (stating the officer entered the home without permission and that he lacked consent to perform the “warrantless entry and search”), with Brief for United States in Opposition to Certiorari, supra note 16, at 2–3 (stating that Wooden consented to entry and that his wife consented to the search). However, Wooden does not dispute that he possessed the rifle.

[18] Brief for Petitioner, supra note 12, at 6.

[19] 18 U.S.C. § 924(e)(1).

[20] Brief for Petitioner, supra note 12, at 7.

[21] Id.

[22] United States v. Wooden, 945 F.3d 498, 506 (6th Cir. 2019).

[23] Brief for United States at 7–8, Wooden v. United States, No. 20-5279 (June 28, 2021).

[24] Transcript of Oral Argument, supra note 7, at 47 (“Every time Mr. Wooden and his confederates chose to break down another wall is another decision to break the law.”).

[25] Brief for United States, supra note 23, at 15 (“In common legal parlance, an offense is generally ‘committed’ when ‘all elements of the offense are established, regardless of whether the defendant continues to engage in criminal conduct.’”) (quoting United States v. Yashar, 166 F.3d 873, 879–880 (7th Cir. 1996)).

[26] Transcript of Oral Argument, supra note 7, at 8.

[27] Id. (clarifying that timing is not the only factor in the determination and stating that “[s]omeone who is arrested and then goes back out and commits a crime even 20 minutes later, that is a clean break”).

[28] Brief for United States, supra note 23, at 26–27; see also Transcript of Oral Argument, supra note 7, at 12 (responding to a hypothetical by stating “So, if you were . . . interviewed three times, was that on the same occasion or on occasions different from one another? Assuming that it was the same inquiry, you would say that was the same occasion.”).

[29] BedRoc Ltd., LLC v. United States, 541 U.S. 176, 183 (2004) (“[O]ur inquiry begins with the statutory text, and ends there as well if the text is unambiguous.”).

[30] Id. (quoting Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253–54 (1992)).

[31] 18 U.S.C. § 924(e)(1) (emphasis added).

[32] See Moskal v. United States, 498 U.S. 103 (1990) (finding different meanings for “falsely made,” “forged,” “altered,” and “counterfeited”).

[33] Church of Holy Trinity v. United States, 143 U.S. 457 (1892) (using the title of the Alien Contract Labor Act to interpret its meaning).

[34] Career, Merriam Webster, https://www.merriam-webster.com/dictionary/career (last visited Oct. 26, 2021).

[35] United States v. Wooden, 945 F.3d 498, 506 (6th Cir. 2019).

[36] See, e.g., Blanchard v. Bergeron, 489 U.S. 87 (1989) (using legislative history as “instructive” in reaching its decision).

[37]S. Rep. No. 97-585, at 5 (1982).

[38] 798 F.2d 1157 (8th Cir. 1986).

[39] Id. at 1159.

[40] Id.

[41] Id. at 1160.

[42] Id.

[43] Brief for Petitioner, supra note 12, at 23.

[44] Taylor v. United States, 495 U.S. 575, 596 (1990).