So much for time limits arguing cases in the U.S. Court of Appeals for the D.C. Circuit.
Circuit Judges Douglas Ginsburg, Karen LeCraft Henderson, and Brett Kavanaugh were on a roll today questioning two lawyers who squared off in a case about sentencing enhancements rooted in the Armed Career Criminal Act (ACCA).
The court gave Assistant U.S. Attorney Suzanne Nyland and Federal Public Defender A.J. Kramer each ten minutes to make their case. More than an hour later, the lawyers walked from the courtroom.
Kramer, who argues several cases a year in the D.C. Circuit, found himself in a rare spot as the appellee defending a prison sentence. U.S. District Judge Rosemary Collyer initially sentenced Anthony Thomas to 188 months in prison in 2004 for a gun possession crime. Thomas appealed—based on landmark changes in sentencing regimes—and Collyer resentenced him to 82 months in 2007. This time, the government appealed.
At issue in the case is whether the government offered enough evidence about two prior drug cases against Thomas to substantiate enhancing his prison sentence under the ACCA, which takes into account a person’s criminal history and considers whether prior crimes happened on different occasions. Collyer said the government failed to support an enhancement.
Nyland said in court today that the government presented as evidence two indictments showing two different offense dates for the 1991 charges brought against Thomas. The indictments, Nyland argued, should be enough. Nyland said the government wasn’t able to turn up any records from the 1991 cases other than the indictments, which indicate the offenses happened on different days. Requiring more than an indictment as proof, Nyland said, will “gut” the ACCA.
From the panel judges, there was some skepticism about whether Thomas' two old crimes happened on the same day. Henderson suggested common sense reign. Ginsburg said at one point, “How do we choose between common sense and the Supreme Court? We go with the Supreme Court.” The line drew laughs from court observers.
Kavanaugh speculated whether jurors will soon be required to make a factual finding on when a crime happened. That question is rarely, if ever, posed to juries in instructions. Ginsburg, toward the end of argument, seemed exasperated when he said, “So, we have a mess here.”