Opinion analysis: ACCA-Agreement (or ACCA-greement)

Justice Ruth Bader Ginsburg didn’t have the first opinion of October Term 2019 or the first opinion from the October sitting. But she made up for it by having the first opinions from the November, December and January sittings. (Technically, both she and Justice Brett Kavanaugh issued an opinion from the December sitting on February 25.) And she issued her opinion from the January sitting, in Shular v. United States, a mere 36 days after the case was argued.

The unanimous opinion in Shular is a breezy 11 pages. Although the opinion did not garner much attention (some Supreme Court commentators even called it “uninteresting”), it confirms two realities of the court’s docket. The first is the ease with which the court finds unanimity in ruling against criminal defendants; the second is the sprawling reach of federal criminal law, particularly with respect to drugs, guns and immigration.

The question resolved by Wednesday’s ruling is the proper interpretation of 18 U.S.C. Section 924(e)(2)(A)(ii), a provision that is part of the Armed Career Criminal Act. ACCA subjects felons in possession of a firearm to a mandatory 15-year term of imprisonment if they have three or more prior convictions for violent felonies or serious drug offenses. Section 924(e)(2)(A)(ii) defines a serious drug offense as a state offense “involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.” Shular pleaded guilty to being a felon in possession of a firearm, and the issue in the case was whether his prior Florida drug convictions qualified as serious drug offenses. Both the district court and the U.S. Court of Appeals for the 11th Circuit concluded that they did. Those courts interpreted Section 924(e)(2)(A)(ii) to require a court to compare a defendant’s prior offense to the conduct listed there.

Shular had argued that a state offense qualifies as a serious drug offense only if it matches a generic definition of the offenses listed in Section 924(e)(2)(A)(ii). Requiring a state offense to match a generic federal offense would narrow the scope of Section 924(e)(2)(A)(ii) because it would mean that Section 924(e)(2)(A)(ii) does not apply to convictions that criminalize conduct that is broader or more far-reaching than the generic definition of an offense. In Shular’s case, for example, Shular argued that his Florida drug convictions did not amount to serious drug offenses because Florida drug laws criminalized unknowing drug possession, whereas the generic definitions of the offenses listed in Section 924(e)(2)(A)(ii) required criminal intent.

On Wednesday the Supreme Court affirmed the 11th Circuit’s ruling. The justices held unanimously that a “serious drug offense” means a state offense that “involves” the conduct specified in Section 924(e)(2)(A)(ii).

The result in Shular is unsurprising after the argument. The court relied on the plain meaning of the word involve, which the court said means to “necessarily require.” But the justices also reached their conclusion in part by relying on portions of Shular’s briefs that appeared to undermine his own argument. For example, although Shular argued that Section 924(e)(2)(A)(ii) lists generic offenses, he conceded in both his opening and reply briefs that the drug offenses listed in section 924(e)(2)(A)(ii) do not have settled meanings at common law. If there are no settled meanings of the offenses at common law (or at the time that ACCA was enacted), then it would be harder to construct generic federal definitions of them. The justices also echoed a frustration that Justice Samuel Alito had expressed at argument – namely, that contrary to Shular’s representations, the Florida drug laws under which Shular was convicted did have a criminal intent element.

The unanimity is surprising given that both Justices Neil Gorsuch and Stephen Breyer had expressed concern during oral argument about the potential reach of the government’s interpretation of Section 924(e)(2)(A)(ii). The government had even appeared to endorse the conclusion by some courts of appeals that an offense “involves” the conduct listed in Section 924(e)(2)(A)(ii) if the offense simply relates to the conduct. (The government had also argued that the court did not have to consider the potentially expansive reach of the provision in this case.)

But unanimity is not uncommon in the court’s ACCA cases – particularly when the court rules against the defendant. Last term, the court unanimously ruled against the criminal defendants in two other ACCA cases, United States v. Stitt and United States v. Quarles. Shular is now part of that trend.

Kavanaugh wrote a solo concurrence. The concurrence restated some of the Supreme Court’s case law regarding the rule of lenity, which requires courts to read an ambiguous statute to favor the defendant in criminal cases, perhaps with an eye toward limiting the occasions to apply that rule. His opinion cited his own essay on statutory interpretation in the Harvard Law Review.