Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:
First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.
Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez: