On Tuesday, in a 9-0 decision, the Supreme Court decided Shular v. United States, rejecting the defense argument that Florida’s unique drug laws cannot be used to enhance a federal sentence. At issue was a federal statute known as the Armed Career Criminal Act (“ACCA”). ACCA imposes a mandatory 15 year sentence on defendants convicted of federal firearms-related felonies if they have 3 or more prior convictions for “serious drug offenses” or “violent felonies.” In 2017, local law enforcement officers executed a search warrant at the Florida home of Eddie Shular who was the target of a drug trafficking investigation being conducted by the Drug Enforcement Administration (“DEA”). During the search, the officers seized a firearm from a bedroom closet. Because Shular was a convicted felon, he was charged under federal law with the crime of being a felon in possession of firearm (18 USC section 922(g)(1)). He pled guilty to that offense and, because he had more than three prior convictions for serious drug offenses, he was sentenced to the mandatory minimum of 15 years in prison under the applicable federal statute. He appealed his sentence arguing that because, under Florida law, none of his state convictions would qualify as a “serious drug offense” because the relevant state laws did not require that the government prove that Shular had “knowledge of the illicit nature of the substance,” and the Florida crimes were, therefore, broader than the generic drug offense analogues under federal law. The Eleventh Circuit upheld his conviction and sentence, rejecting the application of the “categorical approach” to defining “serious drug offenses, and holding that the ACCA definition “requires only that the predicate offense involve certain activities related to controlled substances.” The Supreme Court affirmed, holding that “serious drug offense” requires only that the state offense involve the conduct specified in the statute, and does not require that the state offense in question match certain generic drug offenses under federal law.
Gregory A. Brower, Shareholder, Brownstein Hyatt Farber Schreck
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Operator: Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society's Criminal Law & Procedure Practice Group, was recorded on Friday, February 28, 2020, during a live teleforum conference call held exclusively for Federalist Society members.
Micah Wallen: Welcome to The Federalist Society's teleforum conference call. This afternoon’s topic is a Courthouse Steps Decision teleforum on Shular v. United States. My name is Micah Wallen, and I'm the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the expert on today's call.
Today we are fortunate to have with us Greg Brower, who is a Shareholder at Brownstein Hyatt Farber Schreck. After our speaker gives his opening remarks, we will then go to audience Q&A. Thank you for sharing with us today. Greg, the floor is yours.
Greg Brower: Okay, Micah. Good morning and thank you to you and to everyone who’s joined us. Shular v. United States is a case about the Armed Career Criminal Act of 1984. It’s a federal law that I have interestingly followed the evolution of since I was U.S. Attorney in Nevada back in the second Bush administration. I argued a few Ninth Circuit cases while I was U.S. Attorney, and one happened to be an ACCA case. And so I’ve followed the evolution with some interest since then.
So this case concerned the methodology courts use to apply the definition of serious drug offense in the federal law known as the Armed Career Criminal Act, or as I mentioned a moment ago, ACCA as it’s known by practioners. At issue was whether Mr. Shular was subject to a mandatory 15-year minimum sentence as opposed to a lesser sentence under the ACCA law.
A little bit of background about the case. Shular was a subject of a cocaine trafficking investigation down in Florida. Following three separate controlled buys by the government at his home, a warrant was obtained to search the residence. And during the course of that search, a firearm was found along with a significant amount of cocaine and related paraphernalia. A federal Grand Jury in the Northern District of Florida charged Shular with one count of possession of cocaine with the intent to distribute and charged him with one count of possession of a firearm by a felon.
Shular plead guilty to both counts and was sentenced. It was the sentence that was imposed by the district court judge that led this case to the Supreme Court. Under ACCA, a felon in possession offense carries a substantially greater sentence range – that is 15 years to life. If the defendant has three previous convictions for a violent felony or a serious drug offense as defined in 18 U.S.C. § 924. And as I mentioned at the outset, this case was about the serious drug offense part of ACCA.
Because Shular had six prior drug offenses under Florida law, a probation office calculated his guideline range in the federal case for both counts to be between 180 and 235 months, or a minimum of 15 years. The district court agreed and, under ACCA, did sentence Shular to 15 years.
Shular appealed. The Eleventh Circuit affirmed, and Shular successfully sought Supreme Court review based upon the fact that the Court deemed there to be a circuit split with the Ninth Circuit recently having decided the United States v. Franklin case, in which it applied a different analysis and test under ACCA than did the Eleventh Circuit did in this case.
So on appeal to the Supreme Court, Shular argued that the district court erred in concluding that his Florida drug offenses constituted serious drug offenses under ACCA. He argued that because the Court did not apply, in his view, the correct categorical approach to the analysis, meaning that only state offenses that categorically match their generic analogs satisfy the statute. So that was Shular’s argument to the Supreme Court.
The government argued that the Eleventh Circuit was correct in determining that Shular’s prior convictions under Florida law were, in fact, serious drug offenses under the federal ACCA law. DOJ’s argument was relatively simple. The government argued A) that ACCA defines “serious drug offense” to include an offense under state law involving the manufacturing, distribution, or possessing with intent to manufacturer or distribute a controlled substance. And that involving language—that word “involving” we’ll get to a little bit later—that’s right out of ACCA. And that was key to the government’s argument and ultimately to the Court’s decision.
DOJ also argued that the subject Florida statute that which, under Shular was convicted, provided that it is -- I’m paraphrasing here. It is unlawful to sell, manufacturer, deliver, or possess a controlled substance. So arguably, substantially the same sort of violation between the underlying state convictions and the federal law in question.
DOJ argued that the Eleventh Circuit was correct in finding a conviction under the subject Florida law satisfied the ACCA definition. And so the 15-year mandatory-minimum enhancement applied.
So far it seems like a pretty simple case. But it gets a little bit more complicated. Shular argued that only state offenses that contain a specific mens rea element can satisfy the ACCA definition of serious drug offense. He argued that under the categorical approach adopted by the Supreme Court in Taylor, in the Taylor case, to determine whether a prior state conviction was for a violent felony, a court must identify a generic analog. And that that same approach should apply to drug cases as well.
The Supreme Court articulated the question presented as follows: does the ACCA’s serious drug offense definition call for a comparison to a generic offense? The Court decided that the answer is no, holding instead that the serious drug offense definition requires only that the state offense involve the conduct specified in the federal statute.
Now the Court acknowledged again that there was a split, at least between the Eleventh and the Ninth Circuits and, as a result, granted review in this case. In this case, in Shular, the parties, as the Court made clear in its opinion, agreed that the enhancement in ACCA requires a categorical approach but pointed out in its opinion that the parties disagreed on the details or exactly what type of categorical approach should be applied.
As I mentioned a moment ago, Shular argued for a generic offense-matching exercise wherein the court would define the elements of the generic offense and then compare them to those elements of the state offense. The government’s view was that a court should simply ask whether the state offense in question includes the type of conduct in the federal definition of serious drug offense. In this case, the Court found that the government’s interpretation was the correct one, given that the statutory text of 924 and the context mandated the conclusion that Congress likely intended that ACCA be applied to all offenders who engaged in certain conduct. In this case, the distributioner attempted distribution of a controlled substance.
There was also a rule of lenity argument proffered by Mr. Shular. He argued that the ambiguity of the statute required that the rule of lenity be applied. The Court found no such ambiguity for the rule of lenity to resolve. And, in fact, this rule of lenity argument did cause Justice Kavanaugh to write a separate concurrence in which he emphasized why the rule of lenity didn’t apply. Justice Kavanaugh sort of gave a shout out to the late Justice Scalia’s views on the rule and when it should and should not be applied. In short, Justice Kavanaugh emphasized that the Court has repeatedly held that there must be not just some ambiguity in the relevant statute but, quote, “grievous ambiguity,” before resorting to the application of the rule of lenity.
And so having listened to the oral argument in the case, it was interesting because, if I didn’t mention it at the outset, this was a 9-0 decision with Justice Ginsburg writing for the Court, and despite his concurrence, Justice Kavanaugh joining as well, obviously. And while we see plenty of 9-0 decisions each term, rarely do we see cases in which the Court seems so unified in its inability to understand the petitioner’s argument. And that was certainly the case here, having listened to the oral argument.
From Justice Alito to Justice Sotomayor, the Court seemed to be unified to the point that one wonders why cert was granted. The explanation, of course, as I mentioned, is that there was at least a minor split between two circuits. And, in fact, during oral argument as oral argument went on, the Court, and specifically Justice Breyer, seemed to be intent on raising some hypotheticals, somewhat far-fetched hypotheticals that put the government lawyer on his heels a little bit in an effort to explain why they were far-fetched hypotheticals. But it seemed to be more of an exercise by Justice Breyer, and any kind of serious doubt on his part as to the correctness of the government’s position in the case.
And so, overall, not the most significant criminal law case of the term but one that probably, at least for now, puts to bed any question about which categorical approach should be applied to ACCA cases. And with a 9-0 unanimous decision resolves the small split between at least two circuits. I’ll stop my summary there and be happy to try and answer any questions that the audience might have about the case.
Micah Wallen: Thank you, Greg. Not seeing any questions pop into the queue right away, Greg. Is there anything else you wanted to follow up on?
Greg Brower: Maybe just one issue that the Court spent some considerable time on in the second part of the oral argument, and that is this issue of mens rea. Florida, it was argued by the petitioner, has a somewhat unique aspect to its drug trafficking law that requires the government prove a mens rea intent element -- does not, rather, prove such an element. Whereas, according to the petitioner, the other 48 states do. And so the petitioner argued that that made the Florida law different than the definition of drug trafficking under 18 U.S.C. § 924.
The justices really pushed back pretty hard on that, especially Justice Alito, essentially taking the position that of course, especially when a case involves six prior guilty pleas, it’s hard to argue that the Florida law was substantially different from the federal law with respect to drug trafficking because in Florida, the government would not have to approve that the defendant actually knew that he was trafficking a controlled substance. Moreover, it was undisputed that under Florida law, while the government need not prove a specific mens rea on the part of the defendant, the defendant can raise as an affirmative defense the argument that he did not know the substance in question was a controlled substance. But the justices deemed that to be a distinction without a difference and essentially irrelevant to the issues in this case.
That issue seemed to be the one thing that made the oral argument at least somewhat interesting and not a complete slam dunk for the government.
Micah Wallen: All right. Well, still not seeing any other questions in the queue. I guess we will wrap up early today. Greg, did you have any closing remarks?
Greg Brower: No, thank you very much, Micah. I appreciate the chance to do this. Again, another win for the government in what has been a series of ACCA interpretation cases. This probably won’t be the end of it, but I think with a 9-0 decision written by Justice Ginsburg, probably goes a long way toward clarifying, in large part, what the law says and doesn’t say.
Micah Wallen: And actually, one question just popped into the queue, so let’s go ahead and turn to that question. Let’s squeeze that in before we close out today.
Mark Chenoweth: Hey, Greg. Mark Chenoweth, New Civil Liberties Alliance. I hesitated to jump on with a question because I, unfortunately, joined late and you may have already covered this. But I just wanted to get your take on what Kavanaugh’s doing with that concurral. And if you already spoke to that, I have a more specific question about it as well.
Greg Brower: So I did mention that briefly at the outset. It appears that what Justice Kavanaugh wanted to do with this concurrence was to simply emphasize the point that for the Court to consider a rule of lenity argument, it really has to be a situation where there is not just some ambiguity in the statute. And he quotes to Justice Scalia from a past opinion, arguing that there has to really be what he calls a “grievous ambiguity” before the Court will entertain a rule of lenity argument. He just wanted to emphasize that it’s not just any ambiguity that should cause the Court to weigh in on the rule of lenity argument. But it has to be, as he says, a “grievous ambiguity.”
Mark Chenoweth: And maybe my more specific question. The thing that bothered me about the way that he set that out is it seemed like he was saying that you have to have one level of ambiguity in order to apply Chevron deference and then you would have to have even more ambiguity then that before the rule of lenity would come into play. But because the rule of lenity is based in a constitutional foundation of due process and the Chevron deference doctrine is based in nothing, from a constitutional perspective, I don’t see how you could possibly set it up to where Chevron would come into play when the rule of lenity wouldn’t. But that seemed to be what he was saying. Maybe I’m over-reading that?
Greg Brower: I’m not sure you are. I think that might be a fair reading, and it was a relatively short concurring opinion. I guess we’re going to have to wait for another case where the rule of lenity argument is a much more substantial part of the argument for a more robust fleshing out by both Justice Kavanaugh and presumably by others. I wouldn’t disagree with you necessarily, Mark.
Micah Wallen: All right. Well, then on behalf of The Federalist Society, I’d like to thank our expert for the benefit of his valuable time and expertise today. We welcome listener feedback by email at email@example.com. Thank you all for joining us. We are adjourned.
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