Tuesday, November 21, 2006

Angelos: how about cert grant to reach a statutory solution?

The tale of Weldon Angelos has haunted many a sentencing expert over the past couple of years. Mr. Angelos engaged in several marijuana transactions while carrying a gun. The prosecutor, despite Mr. Angelos's paltry criminal history, insisted on section 924(c) mandatory minimums for separate counts. Thirteen years ago in United States v. Deal, the Supreme Court held that separate counts of armed bank robbery required the stacking of section 924(c) mandatory minimums of 5 years, plus 25 for the "second or successive conviction," plus 25 years for the next count, and so on. The same type of stacking would lead to a horrendous mandatory sentence for Mr. Angelos.

Utah District Court Judge Paul Cassell was distressed. Even in an age of harsh punishments, the required punishment seemed so out of kilter that he put out a call for anyone to provide him with a theory why this result violated the Constitution. Despite massive efforts to construct an Eighth Amendment argument, Judge Cassell ultimately gave up and imposed a fifty-five year sentence, accompanied by a plea for the exercise of executive clemency on behalf Mr. Angelos (available here).

On appeal, Mr. Angelos's lawyers met with no success in the Tenth Circuit (opinion available here), and, as Professor Berman reports here, the Supreme Court is now deciding whether to grant certiorari. Once more, the focus is on the Eighth Amendment. However, the Tenth Circuit opinion hints at a statutory solution that should be attractive to the Supreme Court, especially to the Deal author -- Justice Scalia.

In Clark v. Martinez, Justice Scalia authored another of a series of opinions that have been coming out of the Supreme Court on the Doctrine of Constitutional Avoidance. Before reaching constitutional issues, the Court consistently counsels to examine the statute first for a non-constitutional resolution. And a statutory solution is exactly what the Court has available in Mr. Angelos's case.

The key is the distinct statutory language in section 924(c) regarding "crimes of violence" -- such as the bank robberies in Deal -- and the "drug trafficking crimes" involved in Mr. Angelos's case. The former term is described in the statute as "an offense that is a felony" and involves violence (section 924(c)(3)); the latter term means "any felony punishable under" listed federal drug statutes (section 924(c)(2)). A basic rule of statutory construction holds that different language in the same statute is conveying a different meaning. Here, Deal dealt with successive felony offenses, whereas Mr. Angelos should have had a single gun count based on "any felony" in the underlying drug activity.

And this distinction makes perfect sense under the Sentencing Reform Act. Crimes of violence are generally treated separately under the Chapter Three grouping rules, while drug trafficking crimes are consolidated based on total quantity. This reasonable reading also avoids the huge potential for prosecutorial abuse of section 924(c) in the drug context. Unlike crimes of violence, drug crimes can be charged in a practically unlimited number of separate counts.

So here's hoping that Mr. Angelos has cert granted. If so, our old friend statutory construction may be stronger than the battered Eighth Amendment.

Steve Sady, Chief Deputy Federal Public Defender, Portand, Oregon


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