Brief Amicus Curiae of National Association Of Criminal Defense Lawyers In Support Of Petitioner (on petitioner for a writ of certiorari).

Argument: Timely resolution of the question presented is of great practical importance to First Step Act movants. Appellate-court decisions remanding for considers of the § 3553(a) factors have resulted in significantly reduced sentences. The temporal gap between the original sentencing and First Step Act proceeedings underscores the importance of an update § 3553(a) analysis. In light of the very real possibility that renewed § 3553(a) consideration results in lower sentences, the Court must intervene now.

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner. 

Argument: The Court should adopt a rule that individuals seized during criminal proceedings in violation of their Fourth Amendment rights need only show that the criminal case terminated in their favor in order to proceed with a Section 1983 action to redress the constitutional violation.

Brief of National, State, and Local Civil Rights, Racial Justice, and Criminal Defense Organizations as Amici Curiae in Support of Petitioner (on petition for a writ of certiorari).

Argument: This case asks whether an individual seized during criminal proceedings in violation of the Fourth Amendment must prove that the criminal proceedings ended in a manner indicative of their innocence in order to succeed in a section 1983 action to redress the violation of their constitutional rights. A majority of lower courts have wrongly decided that a termination demonstrating innocence is an element of such constitutional claims. This Court should grant certiorari and hold that no such element exists. First, the lower courts’ conclusion contradicts the deeply rooted principle that our criminal system presumes innocence and adjudicates only whether a defendant is guilty beyond a reasonable doubt. Second, because it is usually impossible to show that criminal proceedings terminated in a manner indicating innocence, the lower courts’ innocence requirement forecloses section 1983 claims for many individuals whose detention and prosecution violate their Constitutional rights. Third, the lower courts’ conclusion that a termination indicating innocence is an element of federal constitutional claims contradicts many of this Court’s cases.

Brief of National Association Of Criminal Defense Lawyers as Amicus Curiae in Support Of Respondent. 

Argument: Depriving the defendant of the right to decide whether to plead guilty unconstitutionally undermines his autonomy interest. The decision to plead guilty is entrusted to the defendant alone and thus implicates his fundamental autonomy interest. The requirement that a guilty plea be knowing and voluntary safeguards the defendant’s autonomy interest. The failure to inform the defendant of each element of the offense to which he is pleading guilty requires vacatur of the plea. Permitting the court to impose punishment based on hypothetical guilty pleas would be a dangerous constitutional innovation. Given that the Framers’ vision of a system of jury trials has already been displaced by pleas, the Court should not accept anything less than informed and voluntary pleas. 

Brief for Amicus Curiae National Association Of Criminal Defense Lawyers in Support of the Respondent.

Argument:  Administrative proceedings do not guarantee participants the assistance of counsel, the privilege against self-incrimination, the right to confront and cross-examine witnesses, and various other protections that apply in a criminal trial.  For these reasons, administrative proceedings do not typically preclude parties from relitigating any fact decided in the agency hearing at a subsequent criminal trial. The government’s prosecution of a noncitizen for unlawful reentry under 8 U.S.C. § 1326 is a notable departure from this general rule.  Due process requires that § 1326 defendants be afforded some meaningful opportunity to obtain judicial review of the proceeding that is the foundation for the government’s prosecution. The Court should therefore allow Respondent to challenge the validity of his removal order in the criminal proceedings, even though he has not satisfied the requirements set forth in 8 U.S.C. § 1326(d).

Brief of Retired Federal Judges, Former Federal Prosecutors, and the National Association of Criminal Defense Lawyers as Amici Curiae in Support of Petitioner. 

Argument: Defendants sentenced for crack cocaine offenses under the pre-2010 version of § 841(b)(1)(C) are eligible for resentencing under the First Step Act of 2018.  The First Step Act’s resentencing provisions apply to offenses whose penalties were “modified” by the Fair Sentencing Act in 2010.  Although defendants sentenced under the pre-2010 version of § 841(b)(1)(C) remain eligible for their original sentences after the statute was recently amended, the sentences they would have received under the post-2010 version of the statute almost certainly would have been lower—likely significantly lower.  That is because the Fair Sentencing Act dramatically expanded the drug quantities to which § 841(b)(1)(C) applies.  All else equal, a sentencing judge generally aims to align the various drug-quantity ranges in § 841(b) with the corresponding sentence ranges—assigning lower sentences for lower quantities and higher sentences for higher quantities.  In other words, the drug-quantity benchmarks in § 841(b) exert a powerful anchoring influence over a judge’s sentencing decisions.  And Congress changed the relevant anchor points 2010.  Thus, it “modified” the statutory penalties in § 841(b)(1)(C), and defendants sentenced under that provision are entitled to resentencing.

Brief for Idaho Association of Criminal Defense Lawyers and National Association Of Criminal Defense Lawyers as Amici Curiae in Support Of Petitioner (on petition for writ of certiorari).

Argument: Appellate waivers are pervasive and call for special scrutiny. Judges routinely make serious mistakes in describing appellate waivers at plea hearings and the adverse consequences are severe. The errors are numerous and widespread. The errors have extreme ramifications.

Brief of Amicus Curiae National Association Of Criminal Defense Lawyers in Support of Respondent.

Argument: Congress has authorized the Secretary of the Interior to enter into agreements with tribal governments under which tribal law-enforcement officers are certified to enforce generally applicable federal criminal laws in Indian country. By extending to tribal governments the power to enforce generally applicable federal criminal law in Indian country, Congress has exercised its power to delegate law-enforcement authority to the tribes without undermining tribal sovereignty. The government’s fear that special law enforcement commissions will undermine tribal sovereignty is misplaced.

 Brief of Amici Curiae Americans for Prosperity Foundation, the National Association Of Criminal Defense Lawyers, Dream Corps Justice, and the R Street Institute in Support of Petitioner.

Argument: Acquitted-conduct sentencing cannot be squared with the Sixth Amendment. The Sixth Amendment requires juries find all facts legally necessary to justify a defendant’s sentence. Reliance on Judge-found facts to triple Mr. Osby’s sentence violates the Sixth Amendment jury trial right. Use of acquitted conduct at sentencing guts the presumption of innocence. The reasonable doubt standard protects against wrongful punishment. Judicial factfinding using the lower preponderance standard to overrule a jury acquittal violates due process. Use of acquitted conduct at sentencing undermines the legitimacy of our criminal justice system. 

Brief of Amicus Curiae National Association Of Criminal Defense Lawyers In Support Of Petitioner.

Argument: When a defendant opens the door to responsive evidence, he does not also forfeit his right to exclude evidence otherwise barred by the Confrontation Clause. The New York rule chills vital defense arguments. The New York rule forces defendants into a Hobson’s choice between constitutional rights. The New York rule undermines the institution of the criminal trial.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: In this case, the Eleventh Circuit, applying plain error review, reaffirmed Petitioner’s conviction. This followed an intervening change in law, which required the government prove beyond a reasonable doubt an additional element of the crime. Although the government had not introduced evidence of this element at trial, the Eleventh Circuit nonetheless affirmed Petitioner’s conviction—which it did only by going beyond the trial evidence. This is contrary to the purpose of plain error review, which is only to correct manifest injustices, and raises fairness concerns, as numerous criminal defendants have been foreclosed from introducing evidence on plain error review. The decision below further raises Constitutional concerns under both the Fifth and Sixth Amendments. It violates the defendant’s due process rights by allowing judges to make a decision of guilt on an element of the crime—a decision reserved for the jury alone.

Brief For Amicus Curiae The National Association Of Criminal Defense Lawyers In Support Of Petitioner.

Argument: The Armed Career Criminal Act’s “occasions” requirement has led to a deluge of unconstitutional factfinding by sentencing courts. The Supreme Court has repeatedly made clear that under the Sixth Amendment, only a jury—not a judge—may find facts that increase a maximum penalty, except for the simple fact of a prior conviction. But in analyzing whether a defendant’s three predicate offenses occurred on “occasions different from one another,” as they must have to support a penalty under the statute, lower courts around the country routinely make detailed factual findings regarding the timing, location, and conduct underlying each prior conviction, with no apparent jury involvement. The Supreme Court has repeatedly made clear in other statutory contexts that such findings are unconstitutional. Because there is no reason why the Sixth Amendment would apply any differently to the “occasions” requirement, it is likely that every sentence imposed under the Armed Career Criminal Act has been imposed unconstitutionally.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: Certiorari is warranted because the Third Circuit’s decision prohibits a whole class of crack-cocaine offenders from being eligible for resentencing under the First Step Act while identically situated defendants in other circuits may be resentenced.  The Third Circuit’s rule is inconsistent with Congress’s goal of providing relief to low-level drug offenders because it excludes the lowest-level offenders and those with uncertain drug amounts from resentencing while allowing those who possessed greater amounts of crack cocaine to obtain relief.  Defendants convicted for possessing lower-quantities of crack cocaine could receive substantial sentence reductions even though they remain eligible for the same sentence.  The Third Circuit’s rule frustrates Congress’s goal of providing relief to the disproportionate number of Black Americans incarcerated for crack-cocaine offenses.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner (in support of petition for writ of certiorari).

Argument: Records needed for adversarial testing of witness testimony are particularly important in child abuse cases. In camera review preserves defendants’ constitutional rights and the interests of privilege holders. 

Brief for National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: If this Court were to hold that an offense with a mens rea of recklessness qualifies as a “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), it would expand the reach of ACCA’s severe sentencing consequences to defendants whose predicate offenses bear little, if any, resemblance to the knowing and purposeful acts of violence Congress intended to target. Such a broad application of ACCA is wrong as a matter of law, and it would result in unjust and disproportionate sentences for defendants nationwide. ACCA’s force clause does not reach reckless offenses. The text of ACCA’s force clause, like the clause at issue in Leocal and unlike the clause in Voisine, does not cover reckless offenses. Excluding reckless offenses comports with ACCA’s purpose, in contrast to the gun-control provision in Voisine. ACCA should not apply to reckless offenses absent a clear indication from congress. The court has at least as much reason to apply lenity here as it did in Leocal. Application of the rule of lenity here would avoid the pernicious effects of a broad reading of ACCA.