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Federal Sentencing Enhancement, Armed Career Criminal Act – Construction

McNeil v. U.S., USSC No. 10-5258, 6/6/11

Under the Armed Career Criminal Act (ACCA), a prior state drug-trafficking conviction is for a “serious drug offense” if “a maximum term of imprisonment of ten years or more is prescribed by law” for the offense. 18 U. S. C. §924(e)(2)(A)(ii). The question in this case concerns how a federal court should determine the maximum sentence for a prior state drug offense for ACCA purposes. We hold that the “maximum term of imprisonment” for a defendant’s prior state drug offense is the maximum sentence applicable to his offense when he was convicted of it.

McNeil’s prior convictions carried a maximum of at least 10 years, thus qualified for ACCA enhancement as of when he committed each crime. But the jurisdiction of conviction later reduced the maximum penalty for his crimes below the ACCA threshold, so the question becomes whether his eligibility for ACCA enhancement is measured by the current, post-conviction maximum or the maximum at the time of conviction. It is the latter:

The plain text of ACCA requires a federal sentencing court to consult the maximum sentence applicable to a defendant’s previous drug offense at the time of his conviction for that offense. The statute requires the court to determine whether a “previous conviction” was for a serious drug offense. The only way to answer this backward-looking question is to consult the law that applied at the time of that conviction. …

Any implications for the state practitioner? Not immediately, which doesn’t means that the case won’t be used as ancillary support for construction of one or another Wisconsin enhancement scheme. Looking for an argument not to adopt McNeil in Wisconsin? Professor O’Hear, “hard-pressed to see much coherence in [ACCA] outcomes,” is lightning quick off the mark:

When we decide that a prior conviction counts as an ACCA predicate, we are functionally punishing the defendant a second time in federal court for the earlier state conviction.  In this context, it may be especially appealing to look to the rule of lenity — the principle that statutory ambiguities are resolved in favor of the defendant — as a way to sort out the many uncertainties that arise in applying the ACCA.

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