A hypothetical-filled argument proves how tricky it is to define an “occasion”
on Oct 5, 2021 at 1:39 pm
The hypotheticals flew on the first Monday of the 2021-22 term, when the Supreme Court heard argument in Wooden v. United States. Wooden concerns the scope of the Armed Career Criminal Act. The court must decide when offenses are committed “on occasions different from one another” as necessary to constitute separate qualifying convictions for an enhanced sentence under ACCA. In real terms, William Wooden entered a storage facility and burglarized 10 separate units. The question is: Did the burglaries occur on “occasions different from one another”? If yes, Wooden is subject to a 15-year mandatory minimum under ACCA. If no, then the maximum penalty he could have received was 10 years (though his initial sentencing recommendation was 21 to 27 months). A lot is riding on the court’s interpretation of the word “occasion.”
As Wooden’s counsel, Allon Kedem, remarked, the argument felt like a law school exam, with the justices presenting various hypotheticals to tease out what the different-occasions clause means. If a streetlight is out and a person seizes on the darkness to commit a crime spree, does she commit different crimes on different occasions? Does it matter if, instead of the streetlight being out, the night was dark and moonless? What if a multitasking crime boss is ordering different crimes using different phones? If outlaw Jesse James jumps on a train and goes car to car robbing people, does he commit different crimes on different occasions? Let’s say James’ cousin Harry robs multiple people in one train car — is the result the same? If you are on a crime spree and take a cigarette break before resuming, would the crimes before and after the break be committed on different occasions? This is just a flavor of the hypotheticals that the justices posed to Kedem and Erica Ross, who argued on behalf of the government, in what made for a lively argument.
While the justices pressed both sides, there was one sticking point for the government that many justices kept returning to: United States v. Petty, a 1986 ruling from the U.S. Court of Appeals for the 8th Circuit. In Petty, the solicitor general “confessed error” after a defendant received an enhanced sentenced based on six robbery charges stemming from the stickup of a diner. Congress enacted the different-occasions clause following the government’s concession. Many justices struggled to distinguish the facts of Petty with those here, with Justice Samuel Alito remarking, “You have a real problem, I think, with Petty.”
Both sides’ interpretation of “occasion” seemed to trouble the justices. In Justice Elena Kagan’s words, Wooden’s interpretation of what constitutes an occasion felt “loosey-goosey.” But as Justice Brett Kavanaugh suggested, the government’s interpretation seemed to defy “common sense intuition.” As a result, the problem may be with the statute itself, with Alito positing that this was “a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning.” In the same vein, Justice Sonia Sotomayor suggested the statute might be “so vague” that it is “incapable of rational application.” Justices Clarence Thomas and Amy Coney Barrett wondered if there were Sixth Amendment concerns given that both of the proposed interpretations may require improper judicial factfinding. And Justice Neil Gorsuch pondered what the court is to do if the justices find ambiguity “either way” — does the rule of lenity apply such that the tie breaks in favor of the defendant?
While the questioning was fast and furious for both parties, one thing was clear after the argument: ACCA is vexing the court yet again.