Argument preview: What counts as a serious drug offense?

McNeill v. United States presents an interesting timing question in the context of the Armed Career Criminal Act (ACCA). In ACCA, Congress enhanced the penalties applicable to repeat offenders with certain prior offenses, including serious drug offenses. The statute defines a serious drug offense to include an offense . . . for which a maximum term of imprisonment of ten years or more is prescribed by law. In McNeill, the Court will decide whether that language refers to the maximum term that the prior offense carried when it was committed, or instead to the maximum term that offense would carry if it was committed today.

In 2008, petitioner Clifton Terelle McNeill pleaded guilty to unlawfully possessing a firearm as a felon and to possessing cocaine base with intent to distribute. His previous record included six prior drug convictions under North Carolina law. Those prior offenses carried maximum ten-year sentences when they were committed, and so clearly qualified as serious drug offenses under ACCA at that time.

North Carolina subsequently amended its drug sentencing laws as part of a truth in sentencing reform. Under the new sentencing laws, the maximum sentence for drug crimes like McNeills prior offenses would be either thirty or thirty-eight monthswell below ACCAs ten-year cutoff for serious drug crimes. But North Carolina did not make its sentencing reform retroactive, meaning that offenses (like McNeills) committed before the new laws effective date were still subject to the former ten-year maximum.

In sentencing McNeill for his 2008 offenses, the district court applied ACCAs enhancement for prior serious drug crimes based on McNeills prior drug convictions. It recognized that those prior offenses would not have been serious drug crimes if committed after North Carolinas sentencing reform became effective, but it held that ACCA looked to the maximum sentence applicable at the time of the prior offense.

On appeal, the Fourth Circuit affirmed. It pointed out that because North Carolinas sentencing reform was not retroactive, McNeill would still be subject to a ten-year maximum if he were being sentenced today for the relevant prior offenses. Therefore, it found that the prior offenses carried a ten-year maximum for ACCA purposes. McNeill filed a petition for certiorari, which was granted on January 7, 2011.

As the governments brief points out, there are three possible ways that the Court might decide what maximum sentence is prescribed by law for a prior offense. The first option, which the district court adopted, is to look at the maximum sentence prescribed by law at the time the offense was committed. Under this option, McNeills priors are serious drug offenses because they were subject to a ten-year maximum when committed.

The second option, noted in the Fourth Circuits opinion, is to look at the maximum sentence that the defendant could receive today based on the exact offense he committedincluding the date when he committed it. In that case, McNeills priors would still be serious drug offenses, but only because North Carolina chose not to make its sentencing reform retroactive to offenses committed before its effective date.

The third option, which McNeill advances, is to look at the maximum sentence that the identical offense would receive if it was committed today. In that case, McNeills priors would not be serious drug offenses under ACCA, because today the maximum for identical offenses is only thirty to thirty-eight months under North Carolina law.

In his brief, McNeill argues that the plain text of the statute supports his reading, based on the present tense of the verb is prescribed. In his view, the use of the present tense requires the sentencing judge to look to the maximum sentence that applies to similar offenses today. The government counters that in context, the verbs tense refers to the time of conviction, citing the Courts construction of other parts of ACCA.

McNeill also opposes the other readings of the statute on practical grounds. He asserts that it may be difficult to determine what the maximum sentence for a particular offense was in the past, or what the maximum would be today as applied to a past offense. The government responds that equal practical difficulties attend McNeills approach: if the elements of an offense have been changed by new laws, a court may be unable to determine what the maximum sentence for that prior offense would be if it were committed today.

On normative grounds, McNeill argues that ACCA should look to a state governments present judgment about how serious a particular offense is, not its past judgments. He contends that North Carolinas decision not to apply its sentencing reform retroactively was based on administrative reasons, rather than a judgment that past crimes were more serious than present ones. The government argues in response that ACCA should give effect to North Carolinas considered decision not to apply its sentencing reform retroactively, whatever the reasons for that decision.

Finally, McNeill points out that his reading provides uniformity among defendants being sentenced today, rather than making their sentences depend on the arbitrary fact of whether their prior offenses were committed before or after the sentencing reform. The government, on the other hand, points out that it is even more arbitrary to assign different sentences based on whether a defendants federal sentencing hearing takes place before or after a change in the law.