WASHINGTON (CN) — A Tennessee felon who was sentenced as a career criminal based on a single incident involving multiple burglaries appeared to gather sympathy Monday at Supreme Court oral arguments.
“Let's say you're a newspaper reporter and you're trying to write a story about what happened here,” Justice Sonia Sotomayor pondered at the hearing. “Would you ever say something like the facility storage units were burglarized on 10 occasions?”
The case stems from a 15-year sentence given in 2015 to William Wooden for possession of a firearm as a felon. That Wooden had a criminal record is not in dispute — there as an aggravated assault in 1989, a burglary of 10 units in a storage facility in 1997 and a 2005 burglary, all in Georgia.
The Armed Career Criminals Act enhances sentences for felons who have committed more than three separate crimes with firearms, but Wooden denies that his priors should be classified as violent felonies. He also says the 1997 burglary convictions should be considered as a single offense not 10 separate offenses.
Because the court disagreed, he was sentenced to a little more than 15 years for the firearm offense rather than the two years he might have gotten otherwise.
Wooden's case was one of two — the other involving groundwater rights — that the Supreme Court considered this morning in the first batch of the new fall term, and also the first arguments held in person since the March 2020 outbreak of the Covid-19 pandemic.
Like Sotomayor, Chief Justice John Roberts seemed skeptical that Wooden's 1997 burglary spree should count separately.
“The conduct in this case where they're in the storage facility and they're just kicking down the walls to go from one to another," Roberts said. "I think it might require a more careful examination of the different elements than you suggest."
The chief justice was referring to Erica Ross, assistant to the U.S. solicitor general.
“If a defendant burglarizes 10 houses on the same street, those are necessarily 10 different occasions," Ross had said. "He could not have unlawfully entered each home through one act, and he had the choice not to commit another crime between each one."
Allon Kedem, representing Wooden for the Washington firm Arnold & Porter, urged the court to reverse.
“What you’re looking for is a single episode, and you’re not focusing on whether crimes are simultaneous,” Kadem said.
Justice Stephen Breyer asked Kedem why the high court should consider the burglary a single episode.
Kedem said it was because the burglary was a “continuous stream” of criminal activity. She offered the example of another crime that would be considered one event: robbing multiple people in a room.
Justice Elena Kagan pressed Ross, the assistant solicitor general, about the difference.
“When they go from person to person to person to person, and they take each person's goods, you say that still counts as one occasion?” Kagan posed. “Then the question is, when you don't go from person to person to person, but instead, you go from storage to unit to storage to unit storage seeing it in a single facility, why isn't the same true?”
Justice Amy Coney Barrett told Kedem that it’s important for a jury to be able to understand when crimes should be considered separate offenses. She considered Kedem’s use of the term “occasion” to describe Wooden’s burglarization of the 10 storage units in the same way someone might refer to an event like a wedding or an anniversary dinner as an occasion.
The difference in terms of criminal activity, she said, is that “it is difficult to let the jury know when this event begins and when it ends.”
In his petition for certiorari, Wooden asked whether the Sixth Circuit improperly expanded the scope of federal statute, "in the absence of clear statutory definition with regard to the vague term 'committed on occasions different from one another.'"
The government’s opposition brief called it too late for Wooden to raise such challenges.
“Petitioner offers no sound reason for this court to address this argument in the first instance — particularly in a case that presents the issue only in a plain-error posture. He does not, for example, point to any division of authority within the courts of appeals on the question; indeed, the courts of appeals have uniformly rejected the argument that Section 924(e)(1) is unconstitutionally vague,” it wrote.
Kedem appealed this case from the Sixth Circuit in July 2020. The court agreed to take it up in February.
The Supreme Court rules on ACCA cases regularly, including the 2019 case Rehaif v. United States, where it said the government cannot prosecute a felon for knowingly possessing a firearm without first proving that offender knew that possession was illegal. Kedem had been assistant to the U.S. solicitor general at the time, representing the government.
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