One of the last public events I attended before the pandemic upended life as we knew it were oral arguments before the United States Supreme Court. The week I was there turned out to be the last week of in-person oral arguments before arguments first were postponed and later resumed by teleconference. The Supreme Court took the long view of this interruption, noting that it was not unprecedented as the court had postponed arguments in October 1918 because of the Spanish flu epidemic and in 1793 and 1798 because of yellow fever outbreaks. Notwithstanding the change in procedures, the work of the high court — like the work of our state courts — continues. That work includes review in several criminal cases during its 2020 term.

Listed below are the principal criminal law cases currently before the Court, with a link to the docket entry for each case, followed by the Questions Presented. If telephonic oral argument has been held, the entry includes a link to the transcript of that argument.

Jones v. Mississippi, No. 18-1259: 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? Oral argument was held November 3, 2020. The transcript is available here.

Van Buren v. United States, No. 19-783: 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. Oral argument was held November 30, 2020. The transcript is available here.

United States v. Cooley, No. 19-1414: 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 non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

Greer v. United States, No. 19-8709: Last year, this Court held in Rehaif v. United States, 139 S. Ct. 2191 (2019), that, in a prosecution under 18 U.S.C. §§ 922(g) and 924(a)(2), the government must prove not only that the defendant knew he possessed a firearm, but also that he knew he belonged to the relevant category of persons barred from possessing a firearm. Since then the circuit courts of appeals have attempted to define the scope of review when applying the holding of Rehaif to cases remanded by this Court. The question presented is: Whether when applying plain-error review based upon an intervening United States Supreme Court decision, a circuit court of appeals may review matters outside the trial record to determine whether the error affected a defendant’s substantial rights or impacted the fairness, integrity, or public reputation of the trial?

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

Terry v. United States, No. 20-5904: Section 404 of the First Step Act of 2018 made the Fair Sentencing Act of 2010 retroactive. Section 404 authorized federal district courts to impose a reduced sentence for anyone with a “covered offense.” Pub. L. No. 115-391, 132 Stat. 5194, § 404(b). Congress defined a “covered offense” as “a violation of a Federal criminal statute, the statutory penalties for which were modified by section 2 or 3 of the Fair Sentencing Act of 2010 . . . that was committed before August 3, 2010.” § 404(a). Section 2 of the Fair Sentencing Act of 2010 modified 21 U.S.C. § 841 by raising the crack-cocaine quantities that determine three tiers of penalties in 21 U.S.C. § 841(b)(1). For the top-tier range of 10-years-to-life in § 841(b)(1)(A), Section 2 raised the threshold from 50 to 280 grams of crack. And, for the mid-tier range of 5-to-40- years in § 841(b)(1)(B), Section 2 raised the threshold from 5 to 28 grams of crack. The bottom-tier range of 0-to-20-years in § 841(b)(1)(C) applies to offenses not subject to the top- or mid-tier ranges in §§ 841(b)(1)(A) or (b)(1)(B). Section 2 of the Fair Sentencing Act did not modify the text of § 841(b)(1)(C). But by raising the quantity threshold in § 841(b)(1)(B)(iii) from 5 grams to 28 grams of crack, it had the effect of increasing § 841(b)(1)(C)’s upper boundary from 5 grams to 28 grams of crack. The question presented is: 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.

Most of these cases involve the interpretation of statutory provisions defining and punishing federal crimes. But at least two could impact North Carolina criminal law and procedure: Jones v. Mississippi and United States v. Cooley.

Jones v. Mississippi. Jones is part of the Miller v. Alabama, 567 U.S. 460 (2012), progeny. As a reminder, the Supreme Court held in Miller that a sentencing regime that makes a sentence of life without parole mandatory for a murder committed by a defendant when he or she was under the age of 18 is unconstitutional. That rule, which applied retroactively, required the resentencing of defendants in North Carolina and across the country. My colleague, Jamie Markham, has written extensively about those issues on this blog.

Jones, who was convicted in Mississippi for murdering his grandfather when he was 15 and was sentenced to life imprisonment, received such a hearing. The state trial court concluded that Jones was not entitled to parole relief under Miller.  Jones appealed, arguing that the court erred by not making a specific finding that he was irretrievably depraved, irreparably corrupt or permanently incorrigible. He also argued that the sentencing judge failed to consider the factors in Miller. The appellate court rejected Jones’ argument, affirmed his sentence, and the Supreme Court granted certorari review.

Should a Supreme Court decision in Jones impact juvenile sentencing and re-sentencing in North Carolina, Jamie will, as always, unpack that for our audience.

United States v. Cooley. Cooley involves the detention of a non-Indian on the Crow Indian Reservation in southern Montana by an Indian officer and the ensuing search of the non-Indian’s truck. That detention and search resulted in charges of possession with intent to distribute methamphetamine and firearms charges.

Cooley moved to suppress the evidence on the basis that the Indian officer had no jurisdiction under the Indian Civil Rights Act to search a non-Indian and could only seize such a person for an apparent or obvious violation of state law. The trial court held this jurisdictional violation required suppression of the evidence, and the Ninth Circuit affirmed.

Given that the Eastern Cherokee Indian Reservation, or Qualla Boundary, is located in North Carolina, the case potentially could impact the activities of tribal officers in our state. What I’m more curious about is whether the Court’s opinion will touch on the exclusionary rule’s application to other out-of-jurisdiction arrests. They are not infrequent, and I have generally concluded that suppression is not required for violation of a state jurisdictional statute. I’ll stay tuned to see whether the Supreme Court’s review in Cooley affects that analysis.

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