United States v. McNeill and How to Count Prior Convictions

The Supreme Court of the United States recently granted certiorari in a case originating out of North Carolina. United States v. McNeill, 598 F.3d 161 (4th Cir. 2010), cert. granted, 2011 WL 48124 (U.S., Jan. 7, 2011). The defendant in the case, Clifton McNeill, pled guilty to gun and drug crimes in federal court. The district court then sentenced him under the Armed Career Criminal Act (ACCA), a federal sentencing enhancement for offenders with three previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924. A serious drug offense under the ACCA is “an offense under State law  . . . for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). The serious drug offenses on Mr. McNeill’s record were North Carolina convictions from the early 1990s. At the time they were committed those crimes were punishable under the Fair Sentencing Act by a maximum sentence of 10 years, which would make them serious drug offenses under the ACCA. Today, however, the same crimes are punishable by a maximum of only 30 months under Structured Sentencing—well short of the ACCA’s requisite maximum. McNeill argued that the present-tense language of the serious drug offense definition (“is prescribed by law”) means the maximum currently applicable to the prior crime should control when deciding whether a crime is a serious drug offense. The district court disagreed and gave an enhanced ACCA sentence. The Fourth Circuit affirmed, but only after [...]