Today, the Tenth Circuit decided United States v. Titley, rejecting a creative equal protection challenge to the constitutionality of the Armed Career Criminal Act (ACCA). The Act, which punishes various gun offenses, increases penalties for those who have three prior qualifying convictions, including convictions for "serious drug offenses." The challenge in Titley centered on the definition of "serious drug offense." That definition only includes convictions, state or federal, that carry statutory maximum sentences of at least 10 years. But what happens when a state conviction that carries a 10-year statutory maximum sentence in that state would not carry a 10-year statutory maximum sentence in a different state? Stated differently, what if the defendant's prior offense conduct is only considered a "serious drug offense" because he committed it in State A, instead of State B? In Titley, the defendant established that his underlying offense conduct would not have carried a statutory maximum sentence of 10 years in 19 other states. So, does that matter?
No, says the 10th Circuit. The defendant conceded that rational basis was the proper standard of review. This is an obviously deferential standard, and the government met it in this case. The Court thought it rational for Congress to defer to the judgment of state lawmakers in the state where the offense was committed when defining the seriousness of an offense. The Court also cited prior precedent that supported its decision. So, a defendant who commits a crime in one state can be treated differently under the ACCA from a defendant who commits the identical crime in another state.
Tomorrow, the Supreme Court hears oral argument in Johnson v. United States. The case involves the infamous residual clause and whether mere possession of a sawed-off shotgun qualifies as a violent felony. Now, if you are wondering how the mere possession of something can be considered violent conduct, you are not the only one. We will soon find out what the Justices think.
But there is another issue lurking in every case involving the residual clause: whether the clause itself is void for vagueness. This SCOTUSblog article explains the point. And it is a great reminder to raise this issue in every residual-clause case. We will even help you do it. I litigated this issue in the Seventh Circuit a few years ago and lost when the Court found that its "hands were tied." Here is the opening brief from that case. Use any of it.