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THE ARMED CAREER CRIMINAL ACT:
A SEVERE IMPLICATION WITHOUT EXPLANATION
The terms of the act do not authorize the infliction of a penalty greater.... Is there a safe implication that authority to inflict a greater penalty was intended to be conferred? The objections to this seem to me too strong to be overcome. In the first place, mere implication can hardly ever be safe ground on which to rest a penalty, and when penalties of unlimited magnitude are the subjects of the implication, the danger of making it, and the improbability of its correctness, are proportionably increased. —Justice Benjamin Robbins Curtis^1
INTRODUCTION The Armed Career Criminal Act (“ACCA”) mandates imprisonment for “not less than fifteen years” for a felon in possession of a firearm with three or more prior convictions for violent felonies or serious drug offenses.^2 However, the ACCA is silent as to a maximum sentence.^3 Although Congress has amended the ACCA several times, its plain language has clearly prescribed a penalty of “not less than fifteen years” since it was enacted in 1984.^4 Many people believe the phrase “not less than fifteen years” implies that a judge may sentence any amount of years above fifteen, including life. However, that interpretation is oversimplified and wrong in a statutory and sentencing context. Rather than a range from fifteen years to life, the “not less than fifteen years” phrase should be read to authorize a fixed term of fifteen years imprisonment. The difference is both obvious and significant. Under the ACCA, either every sentence must be fifteen years or judges have discretion to sentence in a range from fifteen years to life. As of now, the U.S. Supreme Court has held that appellate courts should review district court sentences under an abuse of discretion standard, which is highly deferential.^5 Justice Scalia and Justice Thomas believe that the Sixth Amendment prohibits appellate review of the substance of trial judges’ discretionary sentencing choices imposed within the
- Stimpson v. Pond, 23 F. Cas. 101, 102 (D. Mass. 1855).
- 18 U.S.C. § 924(e) (2012). 3_. See id._ 4_. Id._
- Gall v. United States, 552 U.S. 38, 59–60 (2007).
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statutory minimum and maximum. 6 They reason that district courts must be able to sentence to the maximum of the statutory range granted by Congress and that the sentencing judge’s discretionary power must be absolute and unreviewable.^7 To that end, if the ACCA contains a range of fifteen years to life, then it will be very difficult, and nearly impossible in Scalia’s and Thomas’s view, for a defendant to successfully appeal any sentence within that range. This Comment will argue that the “shall be... imprisoned not less than fifteen years” language in the ACCA does not contain an implied maximum of life imprisonment; rather the statute’s text, structure, legislative history, and current adjudicative mechanism, along with Supreme Court Justices’ viewpoints, support the translation of the imprisonment language to constitute a fixed term of fifteen years.
I. BACKGROUND OF THE ACCA
A. General Background
The ACCA in its current form states: [A] person who violates... 922(g)... and has three previous convictions by any court referred to in... 922(g)(1)... for a violent felony or a serious drug offense, or both... shall be... imprisoned not less than fifteen years, and... the court shall not suspend the sentence of, or grant a probationary sentence to, such person.^8 The felon in possession statute, 18 U.S.C. 922(g), which is the underlying crime of the ACCA, carries an expressed maximum term of ten years imprisonment.^9 The enhanced ACCA sentence becomes available to the sentencing court when the individual convicted under 18 U.S.C. § 922(g) is not just a one-time felon, but has three or more prior violent felonies^10 or serious
- Rita v. United States, 551 U.S. 338, 370 (2007) (Scalia, J., concurring). 7_. Id._
- 18 U.S.C. § 924(e)(1). Section 922(g) outlaws a list of certain individuals, one of which is a prior felon, from shipping or transporting in interstate or foreign commerce, or possessing in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce. See id. § 922(g). It is widely known as the federal felon in possession of a firearm statute. Section 922(g)(1) states, “[W]ho has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year.” Id. § 922(g)(1).
- Id. § 924(a)(2).
- The term “violent felony” under the ACCA refers to any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that either has as an element the use, attempted use, or threatened use of physical force against the person of another or is burglary, arson, or extortion,
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recognized that many repeat felons did not lose one day of freedom as a result of many states’ inability to incarcerate them. 22 Accordingly, Congress passed the ACCA to increase the participation of the federal law enforcement system by creating a consistent federal penalty to reduce crimes committed by armed, habitual criminals.^23 All of the courts of appeals that have interpreted the ACCA read it to contain an implied maximum sentence of life imprisonment.^24 The Supreme Court has said in mere dicta that the ACCA contains a maximum of life, but the Court has never ruled on this issue.^25 Statements in a Supreme Court opinion, which are not necessary to the decision, are not binding authority.^26 Although no court has endorsed such a reading, it bears to mention that the ACCA certainly precludes implication of a greater maximum penalty than life imprisonment without parole. The Supreme Court has noted that a “life sentence without parole is the second most severe penalty permitted by law.”^27 Since its enactment, the ACCA has always prohibited parole.^28 Accordingly, when courts imply life imprisonment as the maximum sentence permitted by the ACCA, it is necessarily without the possibility of parole. If a court sentences an offender to life plus any number of years, it also is equivalent to life without parole.^29 Because the imposition of the death penalty requires
[hereinafter Hearings on S. 52 ] (statement of William Cahalan, Prosecuting Attorney of Wayne Cnty., Va.). The record from the Senate hearing on the Armed Career Criminal Act of 1982 indicates that in Pennsylvania, for those offenders who committed robbery with a firearm and had two prior robbery or burglary convictions, the average time of incarceration was less than four years; for those convicted and sentenced for burglary who had two or more prior burglary or robbery convictions, the average sentence was less than ten months. S. R EP. N O. 97-585, at 35– (1982). 22_. Hearing on S. 52_ , supra note 21.
- 98 C ONG. R EC. 26,901 (1984).
- United States v. Walker, 720 F.3d 705, 708 (8th Cir. 2013); United States v. Weems, 322 F.3d 18, 26 (1st Cir. 2003); United States v. Brame, 997 F.2d 1426, 1428 (11th Cir. 1993); United States v. Bland, 961 F.2d 123, 128 (9th Cir. 1992); United States v. Wolak, 923 F.2d 1193, 1199 (6th Cir. 1991); United States v. Fields, 923 F.2d 358, 362 (5th Cir. 1991); United States v. Tisdale, 921 F.2d 1095, 1100 (10th Cir. 1990); United States v. Williams, 892 F.2d 296, 304 (3d Cir. 1989); United States v. Blannon, 836 F.2d 843, 845 (4th Cir. 1988); United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987); Walberg v. United States, 763 F.2d 143, 148– (2d Cir. 1985).
- Custis v. United States, 511 U.S. 485, 487 (1994).
- Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 737 (2007); Cohens v. Virginia, 19 U.S. 264, 399–400 (1821).
- Graham v. Florida, 560 U.S. 48, 50 (2010) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)) (internal quotation marks omitted).
- See H.R. R EP. N O. 98-1073, at 7–8 (1984) (The Resolution states that such person “shall not be eligible for parole”).
- See Vance v. Pennsylvania Bd. of Prob. & Parole, No. 4:08-CV-1185, 2009 WL 302054, at *3 (M.D. Pa. Feb. 5, 2009).
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constitutional protections clearly absent from the ACCA, there is no existing higher maximum penalty to imply than the second most severe penalty permitted by law: life without parole.
B. The Three Previous Convictions Requirement
Unlike the ACCA’s sentencing phrase, the predicate offenses provision has been the subject of frequent Supreme Court litigation. There have been thirteen Supreme Court cases that have attempted to clarify the statute’s language with regard to its three previous convictions requirement.^30 The requirement encompasses a defendant’s past convictions under both state and federal criminal statutes.^31 But, given the various definitions of different states’ crimes, past convictions may or may not qualify under the definitions the ACCA prescribes for violent felonies and serious drug offenses. In Taylor v. United States , the Supreme Court established a rule to determine when a defendant’s prior conviction counts as one of the ACCA’s enumerated predicate offenses.^32 One of the enumerated predicate offenses in the ACCA is burglary.^33 The Court noted that the ACCA fails to define specific elements of burglary, and therefore interpreted it to require the elements of a generic burglary offense.^34 In assessing whether the defendant’s prior burglary conviction under California law sufficed for generic burglary under the ACCA, the Court adopted a “formal categorical approach.”^35 Under this approach, the sentencing court may look only to the statutory definitions (i.e. the elements) of a defendant’s prior convictions and not to the particular facts underlying those particular convictions.^36 If the relevant statute (in Taylor , the California burglary statute) has the same elements as the “generic” ACCA crime (burglary), then the prior conviction can serve as one of the three predicate offenses.^37 Similarly, if the
- Descamps v. United States, 133 S. Ct. 2276, 2279 (2013); Sykes v. United States, 131 S. Ct. 2267, 2272–73 (2011); McNeill v. United States, 131 S. Ct. 2218, 2221 (2011); Johnson v. United States, 559 U.S. 133, 134 (2010); Chambers v. United States, 555 U.S. 122, 124 (2009); United States v. Rodriquez, 553 U.S. 377, 380–81 (2008); Begay v. United States, 553 U.S. 137, 139 (2008); Logan v. United States, 552 U.S. 23, 26 (2007); James v. United States, 550 U.S. 192, 195 (2007); Shepard v. United States, 544 U.S. 13, 16 (2005); Daniels v. United States, 532 U.S. 374, 376 (2001); Custis , 511 U.S. at 487; Taylor v. United States, 495 U.S. 575, 577– (1990).
- 18 U.S.C. § 924(e) (2012). 32_. Descamps_ , 133 S. Ct. at 2283 (citing Taylor , 495 U.S. at 607).
- The ACCA says “any crime punishable by imprisonment for a term exceeding one year... that... is burglary... ” qualifies for a violent felony for purposes of a predicate conviction. 18 U.S.C. § 924(e)(2)(B). 34_. See Descamps_ , 133 S. Ct. at 2283 (citing Taylor , 495 U.S. at 607). 35_. Id._ 36_. Id._ 37_. Id._
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Massachusetts statute, which alternative the defendant was convicted of.^51 However, since the statute was divisible, the Supreme Court authorized the sentencing court to examine a limited set of materials, namely the terms of the plea agreement or transcript of colloquy between the judge and defendant, to determine if the defendant had pled guilty to entering a building, car, or boat.^52 The Court emphasized the narrow scope of the modified categorical approach: it was not to determine the facts of the defendant’s underlying conduct in his prior conviction, but only to determine whether he pled to the version of the crime in the Massachusetts statute that corresponded to the generic offense (burglary of a building).^53 The Court reasoned that the modified categorical approach would be applicable in a typical case brought under a divisible statute because the prosecutor charges one of the alternatives.^54 So when the defendant pled guilty in a prior conviction, the sentencing court could scrutinize the terms of the plea agreement and transcript of colloquy between the judge and defendant to determine which alternative version he pled to.^55 However, the modified categorical approach also applies when a jury finds a defendant guilty of a crime under a divisible statute.^56 Since the judge instructs the jury which alternative element of the offense is charged, if the alternative comports with the generic crime, then the jury must necessarily find all of the elements of the generic crime. 57 In order to determine if the jury found the defendant guilty of the generic offense, the sentencing court may scrutinize a limited set of documents (i.e. the indictment and jury instruction).^58
C. How the Enhancement Works
Under the ACCA, the instant offense tried before a jury is the possession of a firearm prohibition under 18 U.S.C. § 922(g). The Supreme Court has held in a broad sense that a defendant’s prior convictions do not need to be set forth in the indictment or proved to a jury beyond a reasonable doubt.^59 Rather, once the jury renders a guilty verdict for a felon in possession, then the sentencing court judge considers the defendant’s prior record for the requisite three prior convictions.^60 Using the categorical approach or the modified categorical approach, if the sentencing judge finds three predicate convictions by a
51_. Id._ 52_. Id._ (citing Shepard v. United States, 544 U.S. 13, 16 (2005)). 53_. Id._ at 2285. 54_. Descamps_ , 133 S. Ct. at 2284. 55_. Id._ 56_. Id._ 57_. Id._ 58_. Id._ at 2281.
- Almendarez-Torres v. United States, 523 U.S. 224, 226–27 (1998). 60_. See Descamps_ , 133 S. Ct. at 2283.
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preponderance of the evidence, then the sentencing range increases from a maximum of ten years to not less than fifteen years. 61 The judge uses the existence of the prior convictions along with the instant offense to sentence the defendant within the range provided by the ACCA. Courts base their adjudicative procedures for the ACCA on two cases: Almendarez-Torres v. United States^62 and Apprendi v. New Jersey.^63 Courts rely on Almendarez-Torres to categorize the ACCA as a sentencing- enhancement penalty provision, rather than a new, separate offense.^64 Consequently, the ACCA’s predicate convictions are not required to be charged in the indictment and proved to a jury beyond a reasonable doubt.^65 The Supreme Court’s holding in Apprendi authorizes a judge to look only at the fact of the prior convictions, rather than the defendant’s conduct in those convictions, when imposing a sentence under the ACCA.^66 In Almendarez-Torres , the Supreme Court held in a 5–4 decision that a sentencing judge (rather than a jury) may determine a fact of a defendant’s prior conviction by a preponderance of the evidence (rather than beyond a reasonable doubt) to sentence a defendant in excess of a statutory maximum.^67 The statute at issue in Almendarez-Torres , 8 U.S.C. § 1326(b)(2), raises the penalty from a maximum of two years to twenty years for a deported alien who returns to the United States if the alien has a prior conviction for an aggravated felony.^68 The issue before the Court was whether this statute manifests a penalty provision or a new substantive crime.^69 If the statute is merely a penalty provision that authorizes an enhanced sentence, then the Government is not required to charge the fact of the earlier felony conviction in the indictment because the earlier conviction is relevant only to the sentencing of a defendant found guilty of the charged crime.^70 However, if the statute sets forth a new crime, the prior felony conviction must be charged in the indictment and proved to a jury beyond a reasonable doubt.^71 The Court
61_. See id._ at 2294 (Thomas, J., concurring). 62_. Almendarez-Torres_ , 523 U.S. at 224.
- See Apprendi v. New Jersey, 530 U.S. 466, 487–90 (2000).
- See Descamps , 133 S. Ct. at 2295 (Thomas, J., concurring).
- Id. at 2288.
- Id. at 2294 (Thomas, J., concurring). 67_. Almendarez-Torres_ , 523 U.S. at 226–27. 68_. Id._ at 226. 69_. Id._
- Id. The charged crime in this case was 8 U.S.C. § 1326(a), which prohibits a deported alien from returning to the United States. 8 U.S.C. § 1326(a) (2012).
- See Patterson v. New York, 432 U.S. 197, 204 (1977) (noting that the Due Process Clause requires the prosecution to prove beyond a reasonable doubt all elements included in the definition of the offense of which a defendant is charged); see also In re Matter of Winship, 397 U.S. 358, 364 (1970) (“[T]he Due Process Clause protects the accused against conviction except
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Court ultimately never resolved whether the statute contained a fixed sentence of 30 years or an implied life maximum. However, three Supreme Court Justices expressed serious doubts during the oral argument, without disagreement from anyone else on the bench, when the Government suggested the “not less than” language implied a life maximum. 83 Justice Scalia voiced skepticism: “Where – where is the life sentence maximum, by the way?... Where is that specified?”^84 When the Government responded that lower courts have understood the statute to imply a maximum of life, Justice Scalia turned to the text of the statute: “Where—where do you get the life maximum? I—I’m reading through, and there’s – it mentions nothing about life.... And if it mentions nothing about life, then these are not mandatory minimums. To the contrary, they are—they are new maximums.”^85 The Government asserted that the “not less than” language can only mean that a higher sentence would be appropriate, which prompted Justice Ginsburg to express puzzlement: “Where do you get the maximum? You say oh, these are just minimums.... But where is—where is the maximum?”^86 Justice Sotomayor raised a constitutional concern with the Government’s position, “Is there a Sixth Amendment problem with reading a statute this way, with—with reading a statute to provide for an unlimited maximum when Congress hasn’t specified it, and now you’re going to have the judge find the minimum and the maximum?”^87 The Government reiterated its belief that the “not less than” language implied a maximum term of life. This answer troubled Justice Scalia: “I don’t find that implied at all. I don’t see why it’s implied.”^88 Justice Sotomayor again admonished the Government about a constitutional problem with their position and then endorsed Justice Scalia’s earlier interpretation: “Isn’t there a Sixth Amendment problem with not knowing what you are exposed to? And then doesn’t the minimum in that case sort of become de facto the maximum?”^89 The Supreme Court in O’Brien never ruled whether the “not less than” language constitutes a fixed term or a thirty-to-life sentencing range because it was unnecessary to decide the central issue in the case.^90 Nevertheless, the three Justices’ above-stated viewpoints attest to the “not less than” language
- United States v. Walker, 720 F.3d 705, 708 (8th Cir. 2013).
- Transcript of Oral Argument at 13, United States v. O’Brien, 560 U.S. 218 (2010) (No. 08-1569).
- Id.
- Walker , 720 F.3d at 708; Transcript of Oral Argument, supra note 84, at 14.
- Transcript of Oral Argument, supra note 84, at 15.
- Id.
- Id.
- Walker , 720 F.3d at 710.
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providing a fixed-term of years when an expressed statutory maximum is absent.
B. Stimpson v. Pond and Lin v. United States
These interpretations articulated by the three Justices reflect a court opinion written by one of their predecessors on the bench more than 150 years ago. While riding circuit in the mid-1800s, Justice Curtis held in Stimpson v. Pond that a federal statute prescribing “a penalty of not less than one hundred dollars.... d[id] not authorize the infliction of a greater penalty than one hundred dollars.”^91 Rather, the “act authorize[d] the infliction of a penalty of just one hundred dollars for the offence described[.]”^92 Justice Curtis reasoned that the “[p]ower to inflict a particular penalty must be conferred by Congress in such terms as will bear a strict construction[]” and the power was “exhausted by imposing a penalty of just one hundred dollars.”^93 Justice Curtis specifically rejected the notion of an implied maximum above the prescribed penalty: “mere implication can hardly ever be a safe ground on which to rest a penalty, and when penalties of unlimited magnitude are the subjects of the implication, the danger of making it, and the improbability of its correctness, are proportionately increased.”^94 The phrase “not less than,” with no accompanied maximum, “requires stronger implication than is found in the language” to provide a penalty above the expressed term.^95 Later, in the early 1900s, in Lin v. United States , the Eighth Circuit confronted a similar statute in an imprisonment context and reached the same conclusion.^96 The federal statute at issue prescribed a penalty of “not less than five years” without an expressed maximum sentence for a particular drug offense.^97 The Eighth Circuit explicitly rejected the availability of a life- imprisonment sentence under the statute.^98 Citing Stimpson , the Eighth Circuit held the “statute fixes a certain punishment of five years.”^99 Both Stimpson and Lin remain good law; neither has been overruled or modified. This foundation set by Justice Curtis, held by the Eighth Circuit, and echoed by Justices Ginsburg, Scalia, and Sotomayor should instruct the interpretation of “not less than” in the ACCA because they contemplated the language in a very similar context.
- Stimpson v. Pond, 23 F. Cas. 101, 102 (D. Mass. 1855).
- Id.
- Id.
- Id.
- Id.
- Lee Mow Lin v. United States, 250 F. 694, 695 (8th Cir. 1918).
- Id.
- Id.
- Id.
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burglary convictions from receipt, possession, or transportation of firearms.^109 This allowed for federal imprisonment of career criminals without radically expanding federal jurisdiction over common law crimes. 110 It merely served as an enhanced penalty for a three-time felon convicted of the underlying federal offense—felon in receipt, possession, or transportation of firearms. Congress revised the bill’s sentencing provision to state that career criminals “shall be... imprisoned not less than fifteen years.”^111 Congress completely eliminated the “nor more than life” wording from the bill.^112 Additionally, Congress replaced the phrase “be sentenced to a term of imprisonment of” with the term “imprisoned.”^113 This specific language was duplicated in the Armed Career Criminal Act of 1984 and still functions as the imprisonment language in the ACCA today.^114 Several individual legislators provided commentary during hearings regarding the ACCA’s sentencing language. Even though a number of individual legislators proposed that the ACCA implied a sentencing range with a life maximum, 115 there were also statements that suggested a fixed term of fifteen years.^116 The Supreme Court has expressed misgivings about the credibility of remarks by individual legislators: “First, the views of a single legislator, even a bill’s sponsor, are not controlling[,]”^117 rather, they express the views of only one member of a committee.^118 Furthermore, none of these comments addressed the changes in imprisonment language that occurred from 1982 to 1983. Therefore, these comments are unavailing to the correct interpretation of the ACCA’s penalty because they connote a variety of
- H.R. R EP. N O_._ 98-1073, at 5–6 (1984).
- Id.
- Hearings on S. 52 , supra note 21, at 8.
- Id. at 5.
- Id.
- 18 U.S.C. § 924(e)(1) (2012); H.R. R EP. N O. 98-1073, at 7–8.
- Armed Career Criminal Act: Hearing on H.R. 1627 and S. 52 Before the Subcomm. on Crime of the H. Comm. On the Judiciary , 98th Cong. 13 (1984) [hereinafter Hearing on H.R. 1627 and S. 52 ] (statement of Sen. Arlen Specter) (“[A]nd minimum mandatory sentences of fifteen years to life.”); Hearing on S. 52 , supra note 21, at 11 (statement of James Knapp, Deputy Assistant Att’y Gen., Criminal Division) (“If found guilty, a defendant so prosecuted would have to be sentenced to imprisonment for 15 years to life imprisonment.”).
- H.R. R EP. N O. 98-1073, at 5 (1984) (“[T]he mandatory 15-year penalty is available.”); Hearing on S. 52, supra note 21 (statement of William Cahalan) (“[The ACCA] provides certain... punishment.... [C]ertainty of punishment is critical to the deterrence of criminal activity and protection of the community.”). Merriam-Webster defines ‘mandatory’ as “required by law or rule.” Mandatory Definition , MERRIAM -WEBSTER O NLINE D ICTIONARY , http://www.merriam-webster.com/dictionary/mandatory (last visited Jan. 20, 2015). The 15-year penalty is required. Hearing on H.R. 1627 and S. 52, supra note 115, at 37 (statement of Rep. Ron Wyden) (“[W]ould face a mandatory 15-year sentence in prison, with no eligibility for parole.”).
- Mims v. Arrow Fin. Servs., L.L.C., 132 S. Ct. 740, 752 (2012).
- Chickasaw Nation v. United States, 534 U.S. 84, 92–93 (2001).
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meanings and Congress’s actions speak louder than its individual members’ words. More important is what Congress wrote down and eventually passed as legislation.^119 The following two modifications in the imprisonment language from 1982 to 1983 collectively reveal Congress’s intention to foreclose the availability of a life sentence:^120 revoking the “nor more than life” upper boundary and inserting “imprisoned” in place of the phrase “sentenced to a term of imprisonment.” First, Congress deleted the words “nor more than life” prior to enacting the ACCA into law, which signifies that Congress did not intend to authorize a sentencing range up to life imprisonment. The Supreme Court has pointed out that “[f]ew principles of statutory construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language.”^121 This casts serious doubt on the idea that Congress intended an implied maximum of life imprisonment after discarding the “nor more than life” language. Furthermore, the Supreme Court has reasoned that if Congress sought to grant something in a statute, it would not intentionally substitute a confusion-generating term for pre-existing language that unambiguously carried out that objective.^122 In the ACCA, “not less than fifteen years” is a confusion-generating term substituted in place of the pre-existing language “not less than fifteen years nor more than life,” which unambiguously carried out the objective of imposing a fifteen years to life sentencing range. It follows that Congress would not remove the unambiguous provision in the 1982 bill if it intended to impose a life maximum in the ACCA. Deletion of a provision from a bill “strongly militates against a judgment that Congress intended a result that it expressly declined to enact.”^123 Certainly, interpreting the substituted confusing language identical to the deleted unambiguous language is particularly dangerous when one’s liberty depends on the interpretation. Accordingly, Congress’s abandonment of the “nor more than life” provision suggests it did not intend the ACCA to contain life imprisonment as a maximum. Secondly, the “shall be... imprisoned not less than fifteen years” provision does not implicitly grant a life maximum sentence, but rather underscores Congress’s pressing desire that ACCA offenders actually serve an entire fifteen year prison sentence. In a Senate report on September 24, 1982,
- See Mims , 132 S. Ct. at 752 n.15.
- Hearing on S. 52, supra note 21, at 5 (“[S]hall be... imprisoned not less than fifteen years... .”); S. R EP. N O. 97-585, at 3 (1982) (“[S]hall... be sentenced to a term of imprisonment of not less than fifteen (15) years nor more than life... .”).
- I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 442–43 (1987).
- See Chickasaw Nation v. United States, 534 U.S. 84, 92 (2001).
- Gulf Oil Corp. v. Copp Paving Co., 419 U.S. 186, 200 (1974).
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probation, suspension of sentence, sentence less than fifteen years (whether the defendant pleads guilty or is convicted following a trial), or parole shall be imposed upon an individual punished under the ACCA. Since Congress incorporated the word “imprisoned” at the same time it eliminated the “nor more than life” upper bound, it follows that Congress was creating a certain punishment, or “new maximums,” in accordance with the abovementioned three Supreme Court Justices’ opinions in the O’Brien oral argument. 132 This interpretation advances the congressional objective to incapacitate armed career criminals for the rest of their careers, which usually starts “at about age 15 and continues to about age 30.”^133 Given that the average prison sentence for armed career criminals at this time was less than four years, an enhanced fixed-term of fifteen years imprisonment comports with Congress’s statutory language modifications, establishes a certain and substantial punishment, and prudently anticipates the potential for prisons overcrowding.^134 Accordingly, the “shall be... imprisoned not less than fifteen years” language does not permit a sentence longer than fifteen years; rather it establishes a fixed term and at the same time prohibits courts and parole boards from relieving an ACCA offender of the required fifteen-year confinement.^135
D. Structure And Text
The ACCA’s neighboring subsections within Section 924 reveal that Congress did not intend the ACCA’s imprisonment provision to establish a range up to life. Under Subsections 924(c), 924(j), and 924(o), Congress expressly provided that certain acts are punishable by “any term of years or for life .”^136 The Supreme Court has reiterated, “[w]here Congress includes particular language in one section of a statute but omits it in another... , it is generally presumed that Congress acts intentionally and purposely in the disparate... exclusion” and it should not be implied in the section where it is excluded.^137 Since Congress expressed a life maximum in three neighboring subsections, the absence of any language in the ACCA (924(e)) specifying a life maximum demonstrates Congress acted intentionally and purposely in the disparate exclusion. To be sure, Congress omitted the “nor more than life”
- See supra text accompanying notes 83–90.
- See supra note 124, at 7.
- See supra text accompanying notes 19–20.
- 18 U.S.C. § 924(e)(1) (2012) (emphasis added).
- Id. § 924(c)(5)(B)(i) (emphasis added); Id. § 924(j)(1) (2012) (emphasis added). See also id. § 924(o). Also, 18 U.S.C. § 924(c)(1)(C)(ii) has the following imprisonment provision: “[B]e sentenced to imprisonment for life.” Id. § 924(c)(1)(C)(ii).
- Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
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upper boundary from the ACCA’s text prior to its enactment. Therefore, imposing a life maximum into the ACCA contravenes the duty of courts to refrain from reading a particular phrase into a statute when Congress has left it out.^138 Furthermore, the public law illustrates that Congress routinely specified a life maximum when it wished to define such an upper boundary in statutory sentencing ranges during the time the ACCA was enacted. Several acts codified alongside the ACCA in P.L. 98-473 expressly define penalties with maximums of life imprisonment: Section 503(a) provides “not less than three years and not more than life imprisonment”; Sections 1002(a) and 2002(a) provide imprisonment for “any term of years or for life.”^139 Congress codified the ACCA along with Sections 503(a), 1002(a), and 2002(a) in P.L. 98-473 on October 12, 1984, one year after deleting the ACCA’s life maximum provision.^140 It is implausible that Congress intended this life maximum it deleted to be implied in the “not less than fifteen years” language when Congress expressly established a life maximum in several other acts codified in the same public law.^141 Courts that erroneously impose a maximum penalty of life imprisonment onto the ACCA render § 924, P.L. 98-473, and numerous other federal criminal statutes superfluous. As previously discussed, several of the ACCA’s neighboring provisions in § 924 and P.L. 98-473 explicitly define a maximum penalty of life. Similarly, outside of § 924, Congress has enacted dozens of statutory sentencing ranges of “not less than” a specified term of years or “for life.”^142 For example, the sentencing range for sex trafficking of children by
- Id. at 208.
- Joint Resolution Making Appropriations for the Fiscal Year 1985, and for Other Purposes, Pub. L. No. 98-473, 98 Stat. 2069, 2137, 2186 (1984).
- Id. ; see, e.g. , Field v. Mans, 516 U.S. 59, 75 (1995) (“The more apparently deliberate the contrast, the stronger the inference, as applied, for example, to contrasting statutory sections originally enacted simultaneously in relevant respects[.]”).
- See Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and our reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”).
- See 18 U.S.C. § 33(b) (2012) (sentencing range for damaging a motor vehicle carrying radioactive waste with intent to endanger safety is “imprison[ment] for any term of years not less than 30, or for life”); id. § 175c(c)(1) (sentencing range for possessing or transferring variola virus is “a term of imprisonment not less than 25 years or to imprisonment for life”); id. § 175c(c)(2) (sentencing range for using variola virus is “imprison[ment] for not less than 30 years or imprison[ment] for life”); id. § 225 (sentencing range for organizing a financial crime enterprise is “imprison[ment] for a term of not less than 10 years and which may be life”); id. § 1121(b)(1) (sentencing range for killing a correctional officer by an inmate is “a term of imprisonment which shall not be less than 20 years, and [defendant] may be sentenced to life imprisonment or death”); id. § 1591(b)(1) (sentencing range for sex trafficking of children by
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maximum in the ACCA violates the canon that courts must “construe statutes, where possible, so as to avoid rendering superfluous any parts thereof.”^144 More specifically, if the phrase “not less than fifteen years” were sufficient, by itself, to create a sentencing range of fifteen years to life, it would render superfluous the explicit grant of authority for life imprisonment by dozens of federal sentencing statutes.^145 Then, the superfluous “or for life” clause in dozens of statutory sentencing ranges would offend “a cardinal principle of statutory construction that [courts] must give effect, if possible, to every clause and word of a statute.”^146 Congress did not intend to forgo an upper limit for sentences under the ACCA, thereby authorizing sentences of up to life imprisonment, because Congress explicitly authorized an upper boundary of life imprisonment for those offenses it thought warranted such a penalty.^147 Implying a life maximum in the ACCA would disregard the words “or for life” that operate as an upper boundary in many criminal statutes, in favor of words wholly absent from the ACCA. For that reason, courts should refrain from reading an unstated maximum sentence of life into the ACCA.^148 In order to comply with these canons of construction, the imprisonment provision of the ACCA is best understood as authorizing a fixed term of fifteen years. Congress pointedly did not define a life maximum in the ACCA. In fact, Congress expunged a life maximum in the ACCA prior to its enactment. The Supreme Court does “not lightly assume that Congress has omitted from its adopted text requirements that it nonetheless intends to apply, and [the Court’s] reluctance is even greater when Congress has shown elsewhere in the same statute that it knows how to make such a requirement manifest.”^149 Congress’s regular use of the “or for life” clause—which defines the upper boundaries in several of the ACCA’s neighboring subsections of 924, P.L. 98- 473, and dozens of criminal statutory sentences—proves Congress clearly knows how to establish a sentencing range with a maximum of life imprisonment. Therefore, similar to Stimpson , an unstated life maximum is unwarranted in the ACCA because Congress would have expressly granted it as the upper boundary had it intended to do so. As Justice Sotomayor postulated in the O’Brien oral argument, the minimum should become the de facto maximum.
- Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 112 (1991).
- Brief for Nat’l Ass’n of Criminal Def. Lawyers and Nat’l Ass’n of Fed. Defenders as Amici Curiae Supporting Petitioner at 13, Alleyne v. United States, 133 S.Ct. 2151 (2013) (No. 11-9335) [hereinafter Brief Supporting Petitioner].
- Williams v. Taylor, 529 U.S. 362, 404 (2000).
- See Brief Supporting Petitioner, supra note 145, at 7.
- See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (noting it is the duty of courts to refrain from reading a particular phrase into a statute when Congress has left it out).
- Jama v. Immigration & Customs Enforcement, 543 U.S. 335, 341 (2005).
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The countervailing surplusage argument—that a fixed-term interpretation would render the words “not less than” superfluous—overlooks the ACCA’s history and text. In 1983, Congress signaled a fixed sentence of fifteen years by simultaneously incorporating the language “shall be... imprisoned not less that fifteen years” and omitting the “nor more than life” upper bound.^150 As discussed above, Congress aligned the term “imprisoned”^151 with the words “not less than” to inform judges that their regular practices of departing downward from required sentences, imposing probation, and suspending sentences are impermissible under the ACCA. Additionally, the “imprisoned not less than” language serves as notice to parole boards to deny the release of any prisoner sentenced under the ACCA. If Congress meant to grant the availability of a sentence more than fifteen years, it would not have removed the “nor more than life” language when it integrated the word “imprisoned.” Therefore, the phrase “not less than” in the ACCA is correctly interpreted to make crystal clear that judges needed to break their habit of imposing punishments below statutory-required imprisonment terms and the prisoner may not be released on parole. This interpretation is not abstract. Courts very frequently imposed sentences below statutory-required terms prior to the ACCA’s enactment,^152 and still today, a number of sentencing courts attempt to elude statutory ranges. As previously discussed, one of the ACCA’s neighboring subsections—§ 924(c)—authorizes a sentence “to a term of imprisonment of not less than 5 years.” 153 But prior to its amendment in 1998, the phrase “not less than” was absent from the penalty provision of § 924(c): “sentenced to imprisonment for five years.”^154 Despite the Supreme Court and all of the Circuits recognizing the language in § 924(c) to mandate a fixed sentence of five years,^155 several
- See Petition for Writ of Certiorari, supra note 142, at 11–16.
- Other subsections within 924 use the phrase “be sentenced to a term of imprisonment not less than” (the same phrase Congress used in the ACCA until it changed it in 1983) as opposed to the word “imprisoned not less than” in the ACCA. 18 U.S.C. §§ 924(c)(1)(A)(i)–(ii), (B)(i)–(ii), (C)(i) (2012). “Where Congress includes particular language in one section of a statute but omits it in another, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Keene Corp , 508 U.S. at 208.
- See S. R EP. N O. 98-190, at 7 (1983).
- 18 U.S.C. § 924(c)(1)(A)(i). The previously discussed part was 924(c)(1)(B)(ii), which prohibits brandishing a machine gun in relation to a crime of violence and authorizes a sentence of “not less than 30 years.” This provision, 921(c)(1)(A)(i), is merely possession of any firearm during a crime of violence.
- Id. § 924 (1996), amended by 18 U.S.C. § 924 (2006) (containing the same statutory sentencing language for the basic offense of possessing a firearm in relation to a crime of violence).
- Smith v. United States, 508 U.S. 223, 227 (1993); United States v. Harlan, 130 F.3d 1152, 1152 (5th Cir. 1997); Stanback v. United States, 113 F.3d 651, 653 (7th Cir. 1997); United States v. Goggins, 99 F.3d 116, 117 (3d Cir. 1996); United States v. Anderson, 59 F.3d 1323,
