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January 22, 2024 Cert Alert

Supreme Court Cases of Interest

Joel S. Johnson

Pending Supreme Court Criminal Law and Procedure Cases to Date

The October 2023 Term is underway, with eight criminal cases on the docket. The October and November sittings each included one argument in a criminal case. The December sitting saw two more. Notably, no case on the Court’s criminal docket presents a Fourth Amendment question. The Court has not granted certiorari in such a case since late 2020. Since that time, the Court has declined several opportunities to resolve circuit splits on Fourth Amendment issues.

The Court started the new term with oral argument in Pulsifer v. United States, a case concerning the scope of relief from mandatory minimums provided by the First Step Act of 2018. The case centers on the meaning of the word “and” in 18 U.S.C. § 3553(f)(1), a provision that provides a safety valve for certain nonviolent drug offenders with limited criminal history from otherwise applicable mandatory minimums. Under the statute, the safety valve applies if “the defendant does not have” three separate sentencing characteristics, which are listed and joined by the term “and.” Pulsifer argues that the statute’s plain text entitles a defendant to the safety valve unless all three characteristics are present. The government argues that the presence of any one of the three precludes its application. As Justice Jackson observed during oral argument, the decision will likely affect thousands of incarcerated individuals. But the outcome is not likely to hinge on practical realities or the purpose of the First Step Act. If the questions asked during argument are any indication, the majority textualist Court will focus on highly technical linguistic arguments concerning the best reading of “and” in this context.

Arguably the highest-profile case of the term is United States v. Rahimi, which involves a facial Second Amendment challenge to 18 U.S.C. § 922(g)(8), a prohibition on the possession of firearms for persons subject to domestic-violence restraining orders. Rahimi is one of several cases emerging from the lower courts concerning the validity of Section 922(g) provisions in the wake of New York State Rifle & Pistol Association v. Bruen, the Court’s blockbuster Second Amendment decision from 2022 that introduced a new text-history-and-tradition test for determining the constitutionality of firearms laws. The fact that the Court chose to decide Rahimi—a case with a relatively unsympathetic defendant—before other pending cases involving Section 922(g) provisions may suggest that the Court intends to rule in favor of the government. The tenor of oral argument in early November seemed to support that prediction. At least eight of the justices appeared ready to uphold the law. Regardless of the outcome in this particular case, lower courts struggling to apply Bruen will welcome any broader guidance the Court is willing to provide. The Court’s approach in Rahimi will also be relevant to multiple other pending challenges to subsections of Section 922(g), including the frequently prosecuted Section 922(g)(1), which prohibits felons from possessing a firearm. If, for example, the Court upholds the law in Rahimi on the ground that is rooted in a historical tradition of preventing those who pose a danger from possessing firearms, that might be a hint that the categorical felon-possession ban might also be unconstitutional, at least as applied to those convicted of nonviolent offenses.

Sentencing—Safety Valve for Mandatory Minimums

Pulsifer v. United States, No. 22-340
Argument: October 2, 2023

Question presented:

Whether, in order for a defendant to satisfy the prerequisite for “safety-valve” sentencing relief in 18 U.S.C. § 3553(f)(1), a court must find that the defendant does not have more than 4 criminal history points (excluding any criminal history points resulting from a 1-point offense); does not have a prior 3-point offense; and does not have a prior 2-point violent offense.

Second Amendment—Prohibiting Firearm Possession

United States v. Rahimi, No. 22-915
Argument: November 7, 2023

Question presented:

Whether 18 U.S.C. § 922(g)(8), which prohibits the possession of firearms by persons subject to domestic-violence restraining orders, violates the Second Amendment.

Sentencing—Armed Career Criminal Act

Brown v. United States, No. 22-6389
Jackson v. United States, No. 22-6640
Argument: November 27, 2023

Question presented:

Whether the classification of a prior state conviction as a “serious drug offense” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(A)(ii), depends on the federal controlled-substance schedules in effect at the time of the defendant’s federal sentencing.

Fifth Amendment—Double Jeopardy

McElrath v. Georgia, No. 22-721
Argument: November 28, 2023

Question presented:

Whether the Double Jeopardy Clause of the Fifth Amendment prohibits a second prosecution for a crim of which a defendant was previously acquitted.

Not Yet Set for Oral Argument

Sixth Amendment—Confrontation Clause

Smith v. Arizona, No. 22-899

Question presented:

Whether the confrontation clause of the Sixth Amendment permits the prosecution in a criminal trial to present testimony by a substitute expert conveying the testimonial statements of a nontestifying forensic analyst, on the grounds that (a) the testifying expert offers some independent opinion and the analyst’s statements are offered not for their truth but to explain the expert’s opinion, and (b) the defendant did not independently seek to subpoena the analyst.


McIntosh v. United States, No. 22-7386

Question presented:

Whether a district court may enter a criminal-forfeiture order outside the time limitations set forth in Federal Rule of Criminal Procedure 32.2.

Evidence—Expert Witness

Diaz v. United States, No. 23-14

Question presented:

Whether in a prosecution for drug trafficking—where an element of the offense is that the defendant knew she was carrying illegal drugs—Federal Rule of Evidence 704(b) permits a governmental expert witness to testify that most couriers know they are carrying drugs and that drug-trafficking organizations do not entrust large quantities of drugs to unknowing transporters.

Sixth Amendment—Jury Trial

Erlinger v. United States, No. 23-370

Question presented:

Whether the Constitution requires a jury trial and proof beyond a reasonable doubt to find that a defendant’s prior convictions were “committed on occasions different from one another,” as is necessary to impose an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1).

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Joel S. Johnson

Pepperdine Caruso School of Law

Joel S. Johnson is an Associate Professor of Law at Pepperdine Caruso School of Law in Malibu, California. He was previously an attorney in the Criminal Appellate Section of the Justice Department, where he litigated a number of Supreme Court cases involving criminal law issues. Many thanks to Joanne Kasem for her excellent research assistance.