The 2019 U.S. Supreme Court

What Acquitted Conduct Says about Justice Kavanaugh and Federal Defendants and Supervised Release

The Supreme Court has changed drastically over the last two years. With the inclusion of both Justice Gorsuch and Justice Kavanaugh to the highest court in the Country, there are plenty of questions on what way things will go for federal defendants at the Supreme Court in the next few decades.

There is no easy answer to this, as many Supreme Court Justices look one way during confirmation, and then act differently after they sit on the bench. This is most markedly observed when strict constructionalism meets federalism in a real way. That, however, is a longer discussion for a different post.

This post focuses on how the two newest justices might shape the way criminal matters are decided in the near to far future.

The ACCA

In recent cases, there have been significant decisions by the Supreme Court when it comes to the Armed Career Criminal Act (ACCA). In April of 2018, the case of Session v. Dimaya sided heavily with defendants. This case said that the residual clause of the definition of a crime of violence (per 18 U.S.C. §924(e)) was unconstitutionally vague.

In the simplest of terms, this case threw out a vague definition of what could be considered a crime of violence. It found that just because the act of committing a crime had the potential for violence, didn’t mean it could be considered a violent crime. That asks judges to use too much fortune-telling to be comfortably constitutional.

Whether or not Kavanaugh would have voted with the majority here is a matter of pure speculation, but the case was decided in a 5-4 split that could have swung either way. Kennedy voted against this majority, so even if Kavanaugh would have held the same opinion, this case would have still landed on the side of defendant Dimaya.

But there is wrinkle here. Kavanaugh, although having few opinions to draw on from his time on the D.C. Circuit, is a strong opponent to acquitted conduct. This is the principle of using conduct that the defendant was not convicted of, in order to lengthen their sentence.

Hypothetical Scenario: Consider a kid who was arrested for public intoxication and terroristic threats at age 19. He was actually drinking an energy drink and defending another kid from a bully, but mistakes happen and this hypothetical situation is resolved when a quick bench trial acquits him of both charges.

8 years down the line this same kid is charged as a part of a drug conspiracy when his local weed dealer is taken down by the DEA. He’s guilty of selling some extra weed this dealer had to get rid of 6 months prior, but gets charged (as all conspiracies go) with the entire amount of weed dealt by co-conspirators during that entire 6 month period. At his sentencing, that arrest shows up on the presentence report as criminal history with no points. However, the “Acquitted Conduct” section of the Sentencing Guidelines Manual adds a year to the sentence for something he was never convicted of.

Justice Kavanaugh has stated, on multiple occasions, that he believes the use of acquitted conduct to increase the length of a criminal sentence is both worrisome and a violation of due process protections. He even stated this in front of the Sentencing Commission in 2009.

Few conclusions can be made from this small example, however it is clear from his statements to the Sentencing Commission that Kavanaugh is committed to giving defendant’s a fair shake, and is a firm believer that the constitution guarantees this fairness.

Supervised Release

The future will tell what the new Supreme Court will do with issues of supervised release, but the wait won’t be long. In November of 2018, the Court agreed to review the case of Jason Mont.

Mont, who committed drug crimes while on supervised release for an early drug conspiracy, was indicted by the State of Ohio on these new drug charges, and the federal district court was informed of his violation of federal supervised release conditions.

Mont was held in county jail for 10 months during while awaiting trial for the Ohio charges. During that 10 months, his term of supervised release ended. After he was convicted and sentenced to 6 years in state prison, he was then given a revocation of supervised release in federal court and a 42 month sentence there as well.

Mont appealed to the 6th Circuit. 18 U.S.C. §3583(i) says that:

The power of the court to revoke a term of supervised release for violation of a condition of supervised release, and to order the defendant to serve a term of imprisonment and, subject to the limitations in subsection (h), a further term of supervised release, extends beyond the expiration of the term of supervised release for any period reasonably necessary for the adjudication of matters arising before its expiration if, before its expiration, a warrant or summons has been issued on the basis of an allegation of such a violation.

However, does this apply to pretrial holding? Mont’s lawyers argued that it doesn’t. However, the 6th Circuit disagreed and affirmed the district court’s decision.

Mont then appealed to the Supreme Court, who granted review of this case on November 2, 2018.

This will be a good case to take the temperature of the Supreme Court, in its newest form, regarding issues of federal supervised release.

Check back often for updates on these issues and many others.