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 McNeill’s prior offenses would be either thirty or thirty-eight months—well below ACCA’s ten-year cutoff for “serious drug crimes.” But North Carolina did not make its sentencing reform retroactive, meaning that offenses (like McNeill’s) committed before the new law’s effective date were still subject to the former ten-year maximum.

In sentencing McNeill for his 2008 offenses, the district court applied ACCA’s enhancement for prior “serious drug crimes” based on McNeill’s prior drug convictions. It recognized that those prior offenses would not have been “serious drug crimes” if committed after North Carolina’s 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 Carolina’s 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 government’s 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, McNeill’s priors are “serious drug offenses” because they were subject to a ten-year maximum when committed.

The second option, noted in the Fourth Circuit’s opinion, is to look at the maximum sentence that the defendant could receive today based on the exact offense he committed—including the date when he committed it. In that case, McNeill’s 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, McNeill’s 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 verb’s tense refers to the time of conviction, citing the Court’s 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 McNeill’s 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 government’s present judgment about how serious a particular offense is, not its past judgments. He contends that North Carolina’s 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 Carolina’s 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 defendant’s federal sentencing hearing takes place before or after a change in the law.