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LATEST NEWS

Supreme Court Decides Two Cases Addressing Enhanced Sentencing Statutes: Driving Under the Influence Is Not a “Violent Felony” Under the Armed Career Criminal Act; A Misdemeanor Can Be a “Felony Drug Offense” Under the Controlled Substances Act

In Begay v. United States, No. 06-11543, the Court held that felony DUI under New Mexico law is not a violent felony under the residual clause of ACCA, 18 U.S.C. §924(e)(2)(B)(ii). In the Court’s view, the examples of a violent felony that are listed in the residual clause - burglary, arson, extortion, or crimes involving the use of explosives - illustrate the kinds of crimes that fall within the statute’s scope. Their presence indicates that the statute does not cover every crime that “presents a serious potential risk of physical injury to another,” §924(e)(2)(B)(ii), but is limited to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Click here for text of the opinion and briefs.

In Burgess v. United States, No. 06-11429, the Court ruled that a drug crime that is punishable by more than one year in prison is a “felony drug offense” even if state law classifies it as a misdemeanor. Click here for text of the opinion.

Two additional ACCA cases are currently pending in the Supreme Court. In United States v. Rodriquez, No. 06-1646, the Court will decide whether a state controlled substance offense (punishable by five years imprisonment) is a “serious drug offense” under 18 U.S.C. §924(e)(2)(A)(ii) because the defendant was subject to a recidivist enhancement statute (establishing a ten-year statutory maximum). The oral argument transcript and other documents related to the case are available here. In Chambers v. United States, the Court will address whether a prior conviction for escape, when it is based upon a failure to report for confinement, is a “violent felony” under 18 U.S.C. §924(e)(2)(B)(ii). The cert petition is available here.

Sentencing Commission Corrects the Mathematical Problem Created by the New Crack-to-Marijuana Equivalency Table (Effective Date: May 1, 2008)

When the USSC amended the crack cocaine guideline to reduce the base offense levels, it created a new separate table in the commentary to USSG § 2D1.1, at Note 10(D), for converting crack to an “equivalent” quantity of marijuana in cases involving crack and at least one other drug. The table produced false equivalencies that, in some cases, resulted in a base offense level no different than the pre-amendment level. In order to correct these anomalies, on April 16, 2008, the Commission voted to amend the commentary to USSG § 2D1.1, and also voted to amend §1B1.10, to provide retroactive effect to the amended commentary. Click here for text of the amendments.

The amendment to §2D1.1's commentary changes the drug equivalency table to provide (as it did prior to Amendment 706) that 1 gram of crack cocaine is equal to 20 kilograms of marijuana, and then calls for a two-level decrease in the resulting offense level. Practitioners should note that this amendment does not resolve the within-range anomalies and the differing ratios between crack and powder cocaine in the drug quantity table. Click here for more on the mathematical anomalies.

Sentencing Commission Proposes Amendments to Disaster Fraud, Immigration, and Several Other Guideline Provisions (Effective Date: November 1, 2008)

The Commission has promulgated amendments that will take effect November 1, 2008, assuming congressional approval. They include amendments to USSG §2B1.1 (specifically regarding disaster fraud), §2L1.2 (illegal reentry), §2E3.1 (animal fighting offenses), §2A6.1 (threatening or harassing communications; hoaxes; liens), §2H3.1 (disclosure of certain private or protected information), and others. Practitioners should be aware of these upcoming changes, know which changes will be a detriment to their clients, and begin asserting beneficial provisions on behalf of their clients now. Click here for a more in-depth discussion of these proposed amendments.

Supreme Court to Decide Whether Courts Must Give Notice of Intent to Impose Non-Guidelines Sentence

The Supreme Court has heard argument in Irizarry v. United States (No. 06-7517), which raises the question of whether a district court must give the parties advance notice if it intends to impose a non-guidelines sentence. The transcript of the oral argument, briefs and other documents may be accessed here. For further analysis of the underlying issue, and instructions on preserving it, please see the discussion beginning on page 73 of The Continuing Struggle for Just, Effective and Constitutional Sentencing After United States v. Booker.