Tuesday, June 14, 2011


            In McNeill v United States the United States Supreme Court affirmed McNiell’s sentencing and status as an armed career offender.
            McNeill was charged and pled to possession with intent to distribute cocaine base, 21 U.S.C. §841(a)(1) and possession of a firearm by a felon, 18 U.S.C. §922(g)(1).  The question arose regarding McNeill’s prior criminal history: two violent felonies and six drug trafficking convictions.  McNeill argued that although when convicted each of the drug offenses carried a maximum penalty of ten (10) years, North Carolina had subsequently changed the penalties to 30 or 38 months for the same convictions; therefore, his prior drug convictions were not “serious drug offenses” for purposes of the armed career offender sentencing enhancement. 
            The United States Supreme Court affirmed McNeill’s status as an armed career criminal stating an offense is determined for purposes of “serious drug offense” just as a conviction for “violent felony”: at the time of its conviction.    The Court’s reasoning is three fold.
            First, the Court stated that the armed career criminal act is concerned with convictions that have already occurred. 
Second, the Court stated that it’s holding was consistent with its prior holdings regarding “violent felony,” that a conviction is determined by looking at the state statute at the time the conviction occurred.
            Third, the Court stated that to look at a prior conviction under a new state statute could result in a conviction for a crime that no longer exist – thereby ignoring an individuals dangerousness and culpability and the very essence of the purpose of the armed career criminal act: a persons prior criminal history. 
            Interestingly the Court did make one statement and one question to possibly raise in the future.  The Court stated that a sentencing judge must determine if the prior conviction(s) were “serious drug offenses” or “violent felonies” by finding out what the maximum term of imprisonment for the conviction was at the time of the offense.  The sentencing judge must. 
            But the Court also specifically pointed out that when North Carolina changed its sentencing scheme reducing the penalty for the drug conviction from 10 years to 30 or 38 months it specifically stated it did not apply to crimes committed before October 1, 1994.  Question of the day: what if it did apply to crimes committed before October 1, 1994? Would McNeill still be an armed career criminal? Hmmm. 

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