Supreme Court once again considers the “categorical approach” to sentencing enhancements
RELIST WATCH
on May 31, 2024
at 2:58 pm
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
The Supreme Court cleared out quite a bit of its backlog of relisted cases at last week’s conference. For starters, it granted review in City and County of San Francisco v. Environmental Protection Agency, concerning how specific Clean Water Act pollutant discharge permits have to be. But the court denied review in the one-time relisted petition of former Stormy Daniels lawyer Michael Avenatti, which raised a constitutional challenge to the federal crime of “honest services fraud,” as well as in the one-time relist of a Texas death-row prisoner who claimed that police circumvented his invocation of his right to remain silent under Miranda by persuading his wife to make him talk. And the court denied review to a group of 13 much-relisted cases that raised the question whether felony defendants have a constitutional right to a 12-person jury rather than just a six-person one. Justice Neil Gorsuch filed an opinion dissenting from the denial of cert, arguing that the court’s 1970 decision in Williams v. Florida permitting the use of six-person juries in felony cases “turned its back on the original meaning of the Constitution, centuries of historical practice, and a battery of this court’s precedents.”
We have three new relists this week spanning a variety of issues.
The “categorical approach”
Section 924(c) of the federal criminal code provides for a mandatory consecutive sentence for using or carrying a firearm during and in relation to a “crime of violence,” or possessing a firearm in furtherance of a “crime of violence.” As relevant here, Section 924(c)(3) provides that a “crime of violence” encompasses any federal felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.”
In an apparent effort to create perpetual full employment for federal sentencing lawyers, the Supreme Court long ago adopted a “categorical approach” to determine whether a predicate offense qualifies as a crime of violence under Section 924(c)(3)(A) (as well as under the Armed Career Criminal Act, codified at Section 924(e)). Under that approach, a court “focus[es] solely” on the elements of the crime of conviction, rather than the particular facts of the case. The categorical approach essentially considers whether the least culpable conduct that could satisfy the offense elements in a hypothetical case would necessarily involve the “use, attempted use, or threatened use of physical force against the person or property of another.” The defendant’s actual conduct is irrelevant.
In applying the categorical approach, courts have long disagreed about how to apply use-of-force language to crimes that require proof of a victim’s bodily injury or death but can be committed by failing to take action. Salvatore Delligatti was indicted in 2017 on various charges related to conspiracy to commit murder and aid racketeering, including possession of a firearm in furtherance of a crime of violence. The U.S. Court of Appeals for the 2nd Circuit ruled that Delligatti’s conviction for attempted murder in aid of racketeering was necessarily a crime of violence and held that any crime requiring proof of death or bodily injury categorically involves the use of physical force, even if (as is true of the relevant second-degree murder offense under New York Penal Law) it can be committed through inaction — such as by failing to provide medicine to someone who is sick or by failing to feed a child. That is the majority rule among the federal courts of appeals. Two courts of appeals, by contrast, have held that the use of force is not an element of such crimes if the crime may be committed by inaction.
Delligatti now argues that the Supreme Court should take his case to conclusively resolve whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force. In an unusual move, the United States filed a brief supporting further review. Although the government agrees that the categorical approach applies here, it argues that, based on the actual facts of the case, the 2nd Circuit’s decision is correct. The government emphasizes that Delligatti is believed to be an associate of the Genovese crime family, and he was convicted of arranging an attempt to kill someone the organization viewed as a threat.
[Disclosure: Delligatti is represented by Arnold & Porter, for whom I work. I have not been involved in the case.]
Medicare Act reimbursement
Medicare reimburses hospitals for the care provided to elderly and disabled Americans. But it provides set payments for services, and Medicare’s ordinary reimbursement rates are not always enough to cover the hospitals’ true costs. In particular, hospitals often incur significant additional costs when treating the poorest patients, who are typically in the worst health. To account for that fact, Congress mandated “disproportionate share hospital” payments. Under a formula set by Congress, a hospital’s DSH payments are pegged to the size of its needy-patient population. To measure that population, the DSH formula focuses on three public-assistance programs: Medicare, Medicaid, and Supplemental Security Income. For patients who are over 65 or disabled, the formula calculates a fraction (called the “Medicare fraction”), with the SSI-entitled Medicare population (in terms of patient days) in the numerator, and the total Medicare population (again, expressed in patient days) in the denominator.
Advocate Christ Medical Center v. Becerra concerns a question that is critical to calculating the Medicare fraction: When are patients “entitled to” SSI benefits and so counted in the numerator? Is it when they are eligible for SSI benefits, or only when they are actually receiving cash SSI benefits? HHS reads the formula to cover only Medicare beneficiaries who are receiving SSI cash payments at the time of their hospitalization. The hospitals read it to cover Medicare beneficiaries who are enrolled in the SSI program at the time of their hospitalization, regardless of whether they receive a cash payment at that time.
The district court and the U.S. Court of Appeals for the D.C. Circuit sided with HHS. The D.C. Circuit emphasized that the relevant subchapter of the Social Security Act is focused on “cash payments for needy individuals who are aged, blind, or disabled.”
A group of 209 hospitals in 32 states now challenge that determination. They note that in Becerra v. Empire Health Foundation, the court agreed with the agency that the phrase “entitled to benefits” under Medicare Part A included “all those qualifying for the [Medicare] program,” whether or not Medicare paid for that hospital stay. But Empire expressly left open the question of whether “entitled to [SSI] benefits” for figuring out DSH likewise includes all those who qualify for the SSI program. The court may soon decide to answer that question.
Juror bias
Justin Granier is serving a life sentence without the possibility of parole for the murder of Luke Villar outside a supermarket in St. Amant, Louisiana. Sam Mobley worked at the supermarket around the time of the killing and was one of the initial suspects police investigated for the murder. And as it happens, his mother Gladys Mobley sat on the jury that convicted Granier. When Granier later learned of the connection, he filed a state post-conviction petition that included a claim of juror bias arguing that Mobley knew and failed to disclose that her son had been inverviewed about the killing.
The trial court admitted evidence that the government had knowingly failed to disclose Gladys Mobley’s connection and denied the state’s motion to dismiss Granier’s petition. But the Louisiana Supreme Court reversed, saying that he could win relief only by showing the juror’s “actual bias, either by express admission or proof of specific facts showing” a sufficiently close to the case that “bias must be presumed.” Since Gladys Mobley had died, actual bias could not be shown.
Granier then filed his first petition for federal habeas review. Under the Anti-Terrorism and Effective Death Penalty Act, the court could grant relief only if he could show that the Lousiana Supreme Court’s decision was “contrary to clearly established federal law.”
The district court denied relief, and the U.S. Court of Appeals for the 5th Circuit affirmed. It concluded that under the Supreme Court’s decision in McDonough Power Equipment, Inc. v. Greenwood, Granier had to show Mobley had failed to answer a question honestly during the jury screening, but Granier hadn’t done so. The 5th Circuit rejected the idea that clearly established federal law, as established by holdings of the Supreme Court, permitted a court to imply Gladys Mobley’s bias from the facts of the case.
Without representation from an attorney, Granier filed his own petition for review from the state prison in Angola, Louisiana, arguing, in Granier v. Hooper, that the Supreme Court had recognized claims of implied bias and that there was a division among the federal courts of appeals on the question.
Louisiana did not initially file a response to Granier’s petition, but – when instructed to do so by the Supreme Court – it countered that Granier was not entitled to relief because no Supreme Court decision had clearly accepted claims of implied bias.
By the time Granier filed his reply brief, he was no longer representing himself: Former Solicitor General Don Verrilli had taken up his case. It’s tough for a prisoner to make a showing to justify relief under the strict standards of AEDPA, but the relist here means at least one of the justices clearly is paying close attention to Granier’s case.
We’ll know more soon. Until next time!
New Relists
Advocate Christ Medical Center v. Becerra, 23-715
Issue: Whether the phrase “entitled … to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and Supplemental Social Security benefits, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.
(relisted after the May 23, 2024 conference)
Delligatti v. United States, 23-825
Issue: Whether a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.
(relisted after the May 23, 2024 conference)
Granier v. Hooper, 23-6661
Issues: (1) Whether the doctrine of implied juror bias was clearly established at the time of petitioner’s offense; (2) whether the test for bias established in McDonough Power Equipment, Inc. v. Greenwood represents the exclusive way of establishing juror bias.
(relisted after the May 23, 2024 conference)
Returning Relists
Hamm v. Smith, 23-167
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court should overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26, May 9, May 16 and May 23 conferences)
L.W. v. Skrmetti, 23-466
Issues: (1) Whether Tennessee’s Senate Bill 1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the 14th Amendment’s equal protection clause; and (2) whether Senate Bill 1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the 14th Amendment’s due process clause.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 and May 23 conferences)
United States v. Skrmetti, 23-477
Issue: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the equal protection clause of the 14th Amendment.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 and May 23 conferences)
Jane Doe 1 v. Kentucky ex rel. Coleman, Attorney General, 23-492
Issues: (1) Whether, under the 14th Amendment’s due process clause, Kentucky Revised Statutes Section 311.372(2), which bans medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, the minor’s sex, if that appearance or perception is inconsistent with the minor’s sex,” should be subjected to heightened scrutiny because it burdens parents’ right to direct the medical treatment of their children; (2) whether, under the 14th Amendment’s equal protection clause, § 311.372(2) should be subjected to heightened scrutiny because it classifies on the basis of sex and transgender status; and (3) whether petitioners are likely to show that § 311.372(2) does not satisfy heightened scrutiny.
(rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16 and May 23 conferences)
Harrel v. Raoul, 23-877
Issues: (1) Whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with semiautomatic firearms that are in common use for lawful purposes; (2) whether the Constitution allows the government to prohibit law-abiding, responsible citizens from protecting themselves, their families, and their homes with ammunition magazines that are in common use for lawful purposes; and (3) whether enforcement of Illinois’s semiautomatic firearm and ammunition magazine bans should be enjoined.
(relisted after the May 16 and May 23 conferences)
Herrera v. Raoul, 23-878
Issues: (1) Whether semiautomatic rifles and standard handgun and rifle magazines do not count as “Arms” within the ordinary meaning of the Second Amendment’s plain text; and (2) whether there is a broad historical tradition of states banning protected arms and standard magazines from law-abiding citizens’ homes.
(relisted after the May 16 and May 23 conferences)
Barnett v. Raoul, 23-879
Issue: Whether Illinois’ sweeping ban on common and long-lawful arms violates the Second Amendment.
(relisted after the May 16 and May 23 conferences)
National Association for Gun Rights v. City of Naperville, Illinois, 23-880
Issues: (1) Whether the state of Illinois’ ban of certain handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorically unconstitutional; (2) whether the “in common use” test announced in Heller is hopelessly circular and therefore unworkable; and (3) whether the government can ban the sale, purchase, and possession of certain semi-automatic firearms and firearm magazines that are possessed by millions of law-abiding Americans for lawful purposes when there is no analogous Founding-era regulation.
(relisted after the May 16 and May 23 conferences)
Langley v. Kelly, 23-944
Issues: (1) Whether the state of Illinois’ absolute ban of certain commonly owned semi-automatic handguns is constitutional in light of the holding in District of Columbia v. Heller that handgun bans are categorially unconstitutional; (2) whether the state of Illinois’ absolute ban of all commonly owned semi-automatic handgun magazines over 15 rounds is constitutional in light of the holding in Heller that handgun bans are categorially unconstitutional; and (3) whether the government can ban the sale, purchase, possession, and carriage of certain commonly owned semi-automatic rifles, pistols, shotguns, and standard-capacity firearm magazines, tens of millions of which are possessed by law-abiding Americans for lawful purposes, when there is no analogous historical ban as required by Heller and New York State Rifle & Pistol Ass’n, Inc. v. Bruen.
(relisted after the May 16 and May 23 conferences)
Gun Owners of America, Inc. v. Raoul, 23-1010
Issue: Whether Illinois’ categorical ban on millions of the most commonly owned firearms and ammunition magazines in the nation, including the AR-15 rifle, violates the Second Amendment.
(relisted after the May 16 and May 23 conferences)
