The Court hasn't even heard argument in Sykes, but on Friday agreed to take yet another ACCA case this term. It's astonishing how much SCOTUS litigation has been spawned in the past handful of years by this one, relatively brief criminal statute. The new case, McNeill v. United States (No. 10-5258), deals with a different bit of statutory language than Sykes. While Sykes involves the meaning of the term "violent felony," McNeill centers on the interpretation of "serious drug offense." Although most of the recent cases focus on "violent felony," McNeill is by no means the Court's first encounter with "serious drug offense." Here's what happened in the new case. McNeill was convicted of being a felon in possession of a firearm. He had two prior convictions for violent felonies. In order to get a third ACCA predicate, the government pointed to McNeill's drug trafficking convictions in North Carolina in 1992 and 1995. At the time he committed those offenses, North Carolina law specified a maximum sentence of ten years for each. Thus, at first blush, the convictions seem to fall pretty clearly within the ACCA's definition of "serious drug offense": "an offense under State law . . . for which a maximum term of imprisonment of ten years or more is prescribed by law." But here's the catch: North Carolina changed its sentencing law, and the crimes for which McNeill was convicted now carry a maximum of only 25 months in prison. If McNeill did today exactly what he did before, the resulting convictions would plainly not count as ACCA predicates. The change-in-law problem has produced a circuit split, which the Supreme Court will now presumably resolve. McNeill relies on the use of the present tense in the statutory definition of "serious drug offense": "ten years or more is prescribed." He also argues that the ACCA was intended to defer to state legislative judgments regarding offense severity – the North Carolina legislature now apparently believes that McNeill's crimes were not all that serious, and federal courts applying the ACCA should respect that judgment. On the other hand – and the Fourth Circuit seemed to think this was crucial in rejecting McNeill's arguments – the legislature did not make the reduced penalties retroactively applicable to conduct committed before the effective date of the sentencing reform law. Because McNeill's convictions were based on things he did before the effective date, he would apparently be subject to the same ten-year maximum even if he was just being prosecuted now for what he did in the 1990's.
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