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May 01, 2021 Cert Alert

Supreme Court Cases of Interest

Anthony Franze

Any hope that the country’s problems would magically disappear in 2021 were quickly dispensed by the assault on the Capitol. The Supreme Court also has seen its share of drama. At the time this column went to print, One First Street was surrounded by high fences and a heavy law enforcement and military presence. And in mid-January, SCOTUS declined to stop the 13th in a wave of federal executions rushed in advance of the inauguration of President Joe Biden, who opposes capital punishment. As Justice Sotomayor noted in her dissent, “the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.” And it did so, she said, “under a statutory scheme and regulatory protocol that have received inadequate scrutiny, without resolving the serious claims the condemned individuals raised.” Put simply, “[t]his is not justice.”

Still, since the last Cert Alert, the high court has continued business as (mostly) usual, granting certiorari in several criminal cases and issuing its first criminal law–related opinion of the term.

With hopes for a quiet spring, and remainder of the year, for that matter, below are a summary of the criminal law opinions and cert grants to date.



Military Justice—Statute of Limitations

United States v. Briggs, No. 19-108
Decided: December 10, 2020
Holding from Court’s Syllabus:

The Uniform Code of Military Justice (UCMJ) has long provided that a military offense, “punishable by death, may be tried and punished at any time without limitation.” 10 U.S.C. § 843(a). Other military offenses are subject to a 5-year statute of limitations. § 843(b). Respondents are three military service members, each convicted of rape. When they were charged, the UCMJ provided that rape could be “punished by death.” § 920(a) (1994 ed.). Because this Court held that the Eighth Amendment forbids a death sentence for the rape of an adult woman, Coker v. Georgia, 433 U.S. 584, respondents argue that they could not, in fact, have been sentenced to death, and therefore the UCMJ’s 5-year statute of limitations applies and bars their convictions. Agreeing, the Court of Appeals for the Armed Forces set aside their convictions. Held: Respondents’ prosecutions for rape under the UCMJ were timely.

Cases Argued and Awaiting Opinions:

Immigration—Removal Proceedings

Pereida v. Barr, No. 19-438
Argued: October 14, 2020
Question Presented:

Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.

Fourth Amendment—Search and Seizure

Torres v. Madrid, No. 19-292
Argued: October 14, 2020
Question Presented:

Whether an unsuccessful attempt to detain a suspect by use of physical force is a “seizure” within the meaning of the Fourth Amendment, as the Eighth, Ninth, and Eleventh Circuits and the New Mexico Supreme Court hold, or whether the physical force must be successful in detaining a suspect to constitute a “seizure,” as the Tenth Circuit and the D.C. Court of Appeals hold.

Crimes and Offenses—Armed Career Criminal Act

Borden v. United States, No. 19-5410
Argued: November 3, 2020
Question Presented:

Whether the “use of force” clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), encompasses crimes with a mens rea of mere recklessness.

Eighth Amendment—Juvenile Sentencing

Jones v. Mississippi, No. 18-1259
Argued: November 3, 2020
Question Presented:

Whether the Eighth Amendment requires the sentencing authority to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole.

Computer Fraud and Abuse Act

Van Buren v. United States, No. 19-783
Argued: November 30, 2020
Question Presented:

Whether a person who is authorized to access information on a computer for certain purposes violates Section 1030(a)(2) of the Computer Fraud and Abuse Act if he accesses the same information for an improper purpose.

Retroactive Effect of Unanimous Jury Ruling

Edwards v. Vannoy, No. 19-5807
Argued: December 2, 2020
Question Presented:

Whether the Supreme Court’s decision in Ramos v. Louisiana, 590 U.S. ___ (2020), applies retroactively to cases on federal collateral review.

Fourth Amendment—Exigent Circumstances

Lange v. California, No. 20-18
Argued: February 23, 2021
Question Presented:

Does pursuit of a person who a police officer has probable cause to believe has committed a misdemeanor categorically qualify as an exigent circumstance sufficient to allow the officer to enter a home without a warrant?

Cases Granted But Not Yet Set for Argument:

Disclosure of Grand Jury Materials in Mueller Report

Department of Justice v. House Committee on the Judiciary, No. 19-1328
Question Presented:

Whether an impeachment trial before a legislative body is a “judicial proceeding” under Rule 6(e)(3)(E)(i) of the Federal Rules of Criminal Procedure.

Suppression of Evidence from Detention on Tribal Land

United States v. Cooley, No. 19-1414
Question Presented:

Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a nonIndian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Fourth Amendment—“Community Caretaking” Exception to Warrant

Caniglia v. Strom, No. 20-157
Question Presented:

Whether the “community caretaking”’ exception to the Fourth Amendment’s warrant requirement extends to the home.

Possessing a Firearm as a Felon

United States v. Gary, No. 20-444
Question Presented:

Whether a defendant who pleaded guilty to possessing a firearm as a felon, in violation of 18 U.S.C. 922(g)(1) and 924(a), is automatically entitled to plain-error relief if the district court did not advise him that one element of that offense is knowledge of his status as a felon, regardless of whether he can show that the district court’s error affected the outcome of the proceedings.

Sentencing—Crack Offenders

Terry v. United States, No. 20-5904
Question Presented:

Whether pre-August 3, 2010 crack offenders sentenced under 21 U.S.C. § 841(b)(1)(C) have a “covered offense” under Section 404 of the First Step Act.

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Anthony Franze


Anthony Franze is a lawyer in the Appellate & Supreme Court practice at Arnold & Porter, a regular commentator on the high court and appellate law, and a critically acclaimed novelist.