Symposium: Sifting for clues in Barrett’s criminal law opinions

This article is part of a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett.

Evan Lee is a professor of law emeritus at UC Hastings College of the Law in San Francisco.

Of the 21 criminal law opinions Judge Amy Coney Barrett has published while on the U.S. Court of Appeals for the 7th Circuit, seven were in favor of the defendant and 14 in favor of the government. It’s a small body of work, suggesting caution about drawing broad conclusions. Still, these opinions contain a few notable features.

In her responses to the Senate Judiciary Committee’s questionnaire, Barrett listed her panel dissent in Kanter v. Barr, strongly championing Second Amendment rights, as her most significant opinion. Two of her criminal law opinions seem to back up that commitment to protecting the constitutional right of gun ownership.

In United States v. Watson, an anonymous 14-year old used a borrowed phone to call in a tip to the police that some “boys” were “playing with guns and stuff” in a parking lot situated in a high-crime area of Gary, Indiana. Based on this tip, the police ended up stopping a vehicle and recovering two guns. Writing for a unanimous panel, Barrett conceded that the case presented a “close call,” but held that the police lacked reasonable suspicion for the seizure.

“We recognize that the calculus is complicated when police respond to tips involving firearms, at least in areas where carrying a firearm in public is not itself a crime,” she wrote. “On the one hand, police are understandably worried about the possibility of violence and want to take quick action; on the other hand, citizens should be able to exercise the constitutional right to carry a gun without having the police stop them when they do so.” This opinion appears to manifest a strong commitment to civil libertarianism; at the same time, it could be seen as displaying a controversial level of optimism about the dangers of guns in high-crime areas.

In United States v. Moody, Dandre Moody helped to steal 100 guns from a train. His share of the take was 13 guns, which he then sold, over the phone, to anonymous buyers who had “heard about it.” The district judge enhanced Moody’s sentence for selling to people whom Moody knew, or had reason to know, were legally prohibited from possessing guns or intended to use guns to commit future crimes. Writing for a unanimous panel, Barrett reversed this enhancement for “plain error.” “By finding that Moody had such knowledge, the court plainly crossed the line that separates permissible commonsense inference from impermissible speculation,” she wrote. Judges with less sanguine views about guns — stolen guns, in particular — might have come to a different conclusion.

In Barrett’s latest criminal law opinion, literalist statutory interpretation prevailed over civil libertarianism. This opinion was a dissent to an en banc opinion applying the First Step Act to Hector Uriarte, who was awaiting resentencing at the time the law was enacted. The First Step Act was passed in 2018 with broad bipartisan support to remedy what was perceived to be undue harshness in federal sentencing laws. The act applies if “a sentence for the offense has not been imposed as of such date of enactment.” Uriarte had been sentenced under a federal mandatory minimum law, but that sentence was vacated before the First Step Act was passed.

The nine-judge majority in United States v. Uriarte ruled that the act applied to Uriarte because he was not under sentence at the time the act was enacted. Barrett and two fellow judges dissented, arguing that the majority had twisted the statutory text. According to Barrett, the question was not whether Uriarte was under sentence at the time of enactment; rather, the question was whether a sentence had ever been imposed on him. Literally, “a sentence for the offense has been imposed as of such date of enactment,” and therefore Uriarte was not covered. Although it is impossible to say how Barrett’s old boss, Justice Antonin Scalia, would have ruled in the case, it may be noteworthy that Barrett’s opinion prominently cites the usage manual of Bryan Garner, Scalia’s co-author of the book Reading Law: The Interpretation of Legal Texts, as support for her mode of interpretation.

The application of federal anti-recidivist statutes is a large and important segment of federal criminal jurisprudence. In United States v. Walker, Barrett wrote an opinion for a unanimous three-judge panel reversing the sentence of a convicted sex offender for failing to register. What’s interesting about this reversal is why. Under federal law, whether a prior conviction “counts” is often determined on a “categorical” basis rather than a factual one. In other words, does the statute of conviction categorically fit the law under which the defendant is now being prosecuted? In Walker, the district judge looked beyond the statute to find that the actual ages of the victims, four and six years old, were way under the statutory threshold, even though the statute of conviction did not categorically fit under the sex offender registration law. Barrett held that the district court should have applied the categorical approach, no matter what the actual facts might have been.

This decision could be significant because this categorical approach applies not only in sex offender registration cases but also in many cases involving the Armed Career Criminal Act (an important three-strikes law), and in a great many immigration cases (including Pereida v. Barr, which was argued at the Supreme Court on Wednesday). Some lower federal court judges — and some conservative Supreme Court justices — chafe at the categorical approach, which ignores the actual facts and often produces what some judges consider a windfall for criminal defendants and immigrants with criminal records.

Categorical analysis of prior convictions rests on longstanding Supreme Court precedent and on the need to avoid “mini-trials” to determine the facts underlying old convictions, most of which resulted from plea agreements in which the facts are little discussed. In Walker, Barrett and her colleagues followed that precedent without any editorial comment on the soundness of the categorical approach. But of course that does not necessarily mean she wouldn’t vote to overrule it if she were on the Supreme Court.

The remainder of Barrett’s criminal law opinions are fairly fact-bound, mostly sentencing review cases or search-and-seizure cases. Still, they show something about how she perceives the way people behave in the real world. In United States v. Terry, the question was whether law enforcement had reasonable cause to believe that a woman who opened the front door in her bathrobe had the authority to consent to a search of the male suspect’s premises. “We hold that the answer is no,” Barrett wrote for the unanimous panel. “The officers could reasonably assume that the woman had spent the night at the apartment, but that’s about as far as a bathrobe could take them. Without more it was unreasonable for them to assume that she and the suspect shared access to the property.” (It turned out the woman was the mother of the suspect’s child, but didn’t live there.)

United States v. Kienast required Barrett and her colleagues to judge norms of online viewing. The defendants had been convicted of possessing child pornography. The FBI found child pornography in their houses and on their computers after discovering their identities through a child pornography website they had frequented on the dark web. The defendants challenged the warrant that had been issued to authorize surveillance of viewers of the website; it was recklessly overinclusive, they insisted, because it could sweep up innocent viewers who had “stumbled upon” the site but didn’t engage in illegal activity.

Barrett rejected this argument. “[B]y the time such actors have downloaded the software needed to access the dark web, entered the specific, sixteen-digit character jumble that [serves as the site’s web address], and logged into the site featuring at least one sexually suggestive image of a child, we are very skeptical that they are surprised to find themselves on a website offering child pornography.”

Finally, United States v. Atwood provides a small window into Barrett’s beliefs about judicial ethics. She wrote an opinion for a unanimous panel reversing a sentence because the sentencing judge had engaged in extensive, chummy communications with his old colleagues in the prosecutor’s office. The government had argued that it was harmless error because none of the communications were about the defendant, James Atwood. But the outward perception of this recent extensive contact with one side was too much. In the final prong of her harmless error analysis, Barrett concluded, “Allowing Atwood’s sentence to stand would undermine the public’s confidence in the fairness of this sentence and in the impartiality of the judiciary.”