Two 15-Year Sentences Illustrate the Ugly Interaction of Drug and Gun Laws
The Supreme Court mulls how to apply a mandatory minimum for gun possession by people convicted of drug felonies.
On Monday, the U.S. Supreme Court heard two cases, Brown v. United States and Jackson v. United States, involving men who were each sentenced to 15 years in federal prison for possessing a firearm. Although the oral arguments focused on an arcane issue of statutory interpretation, the cases nicely illustrate how gun laws and drug laws interact to magnify the injustice of each.
In 2016, the U.S. Court of Appeals for the 3rd Circuit noted last year, police in York County, Pennsylvania, "conducted a series of controlled cocaine buys" from Justin Brown. They later obtained a search warrant for Brown's apartment, where they found cocaine, scales, money, and "a loaded .38 caliber Ruger LCR revolver tucked under the couch cushion where Brown had been sitting." Brown's prior drug offenses made his gun possession a violation of 18 USC 922(g)(1), which at the time was punishable by up to 10 years in prison. But when he was sentenced in 2021, Brown received an enhancement under 18 USC 924(e), a.k.a. the Armed Career Criminal Act (ACCA), which transformed a 10-year maximum into a 15-year minimum.
That mandatory minimum applies when a defendant has at least three prior convictions for a "violent felony" or a "serious drug offense." Brown had five prior Pennsylvania convictions, all of which fell into the latter category: a 2008 cocaine conviction and four marijuana convictions from 2009 through 2014.
Something similar happened to Eugene Jackson, a Florida man who was caught with a gun in 2017. He pleaded guilty to violating Section 922(g)(1) and received the same ACCA enhancement. Jackson's qualifying priors in Florida were a mixture of violent and nonviolent offenses: armed robbery (2003), aggravated assault with a deadly weapon (2012), and two cocaine offenses (1998 and 2004).
While Jackson's criminal record suggests he posed a threat to public safety, none of Brown's priors was violent. And in both cases, the crime that triggered the mandatory minimum did not involve violence. Merely possessing the guns, regardless of how they were used, was enough to earn Brown and Jackson 15 years in prison.
Or was it? Here is where the ACCA's complicated details come into play. As relevant here, the statute defines a "serious drug offense" to include a state offense that carries a maximum sentence of 10 years or more and involves the manufacture or distribution of a federally listed "controlled substance." The meaning of "serious drug offense" therefore changes when Congress or the Drug Enforcement Administration (DEA) removes substances from the schedules of the Controlled Substances Act.
In 2015, the DEA descheduled ioflupane I, a medically promising cocaine derivative previously listed in Schedule II. At that point, Florida's definition of cocaine still included ioflupane I, which remained true until 2017. At the time of Jackson's cocaine convictions, in other words, Florida defined the substance to include a derivative that was no longer a federally controlled substance when Jackson was caught with a gun or when he was sentenced under the ACCA.
The U.S. Court of Appeals for the 11th Circuit initially held that the relevant version of the federal drug schedules was the one that existed when Jackson committed his federal firearm offense. But after a round of supplemental briefs, the court reversed itself, saying the version that existed when Jackson committed his state drug offenses was the one that mattered.
The same sort of wrinkle complicated Brown's ACCA sentence. In 2018, Congress amended the federal definition of marijuana, a Schedule I substance, to exclude hemp. At the time of Brown's marijuana offenses, Pennsylvania's definition of the substance included hemp, meaning it did not correspond with the federal definition when he was sentenced under the ACCA in 2021. But since the two definitions did correspond in 2016, when Brown committed his federal firearm offense, the 3rd Circuit upheld the enhanced sentence.
During oral arguments in the two combined cases on Monday, the justices seemed to favor the 3rd Circuit's understanding of the statute. That interpretation would relieve Jackson but not Brown of the 15-year mandatory minimum.
Andrew Adler, a federal public defender representing Jackson, argued that the timing of the firearm offense is what matters because that offense triggers the ACCA sentence. "If Congress amended ACCA's criteria to delete burglary and someone then committed a 922(g) offense," he said, "all agree that a prior burglary conviction would not be an ACCA predicate, even if it was one at the time it occurred. The only question here, then, is whether ACCA's controlled substance criterion somehow warrants different treatment. And it does not. That criterion expressly incorporates the substances on the federal schedules. Under basic rules of statutory construction, that means the substances are effectively written into ACCA itself. So where a substance is removed from the schedules before the 922(g) offense, it is also removed from ACCA's coverage, no less than burglary in the hypothetical."
Several justices seemed to find that argument compelling. When Assistant to the Solicitor General Austin Raynor argued that scheduling changes after the commission of drug crimes do not affect their relevance under the ACCA, Justice Clarence Thomas wondered whether his analysis would be the same "if the statute itself was amended." Raynor said no, prompting Justice Sonia Sotomayor to say, "I think this is the most serious weakness in your argument because it doesn't make much sense to me."
Justice Neil Gorsuch noted that "normally when we have a cross-reference, we look at the contemporaneous version of the cross-reference." He added that "the statutory text here says 'as defined in,' which suggests we look at the present law, just as we normally would."
Justice Elena Kagan likewise called the distinction drawn by Raynor "perplexing" and "a little bit mysterious." She wondered "why you would have a different rule than you would if Congress had just listed the substances" in the ACCA text and subsequently changed it.
Jeffrey Green, the lawyer representing Brown, advocated the third position: that judges should consult the schedules as they exist at the time of sentencing. Justice Ketanji Brown Jackson, a former member of the U.S. Sentencing Commission, thought that made sense. "Isn't that the sort of way it's ordinarily done in the sentencing world?" she said. "Under the sort of normal federal sentencing process, a federal judge applies the sentencing law at the time of sentencing."
But Justice Amy Coney Barrett was skeptical. "Why would it make sense for Congress to say that two defendants who were convicted at the exact same time should be sentenced differently simply by virtue of when their sentencing happened?" Barrett asked Green. "If we're not going to choose the government's approach, it just seems to me like the time-of-federal-offense approach makes more sense of the scheme." Green conceded that the interpretation he favored would "create some arbitrariness."
Speaking of arbitrariness, the interaction between drug laws and gun laws exemplified by these cases shows how legislators transform peaceful conduct into crimes and then rely on those decrees to manufacture more crimes. Brown's prior felonies, which were created by drug prohibition, were the justification for revoking his Second Amendment rights, which in turn was the justification for charging him with violating Section 922(g)(1). Those same drug felonies were also the reason his firearm offense triggered a 15-year sentence.
Under the statutory interpretation that the Supreme Court seems inclined to endorse, Brown would have avoided that sentence if Congress had descheduled marijuana before he was caught with a gun. Given the ongoing collapse of pot prohibition, which most states have partly or entirely repudiated, Congress may eventually take that step, which 70 percent of Americans favor. But it will be too late to save Brown from a decade and a half in prison.
