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No. 23-370

Argued March 27, 2024—Decided June 21, 2024

Justice Gorsuch

Paul Erlinger pleaded guilty to being a felon in possession of a firearm in violation of 18 USC 922(g). At sentencing, the judge found Mr. Erlinger eligible for an enhanced sentence under the Armed Career Criminal Act, 924(e)(1), which increases the penalty for a 922(g) conviction from a maximum sentence of 10 years to a mandatory minimum sentence of 15 years when the defendant has three or more qualifying convictions for offenses committed on different occasions. Subsequently, the Seventh Circuit held in unrelated decisions that two of the offenses on which the government relied for Mr. Erlinger’s sentence enhancement no longer qualified as ACCA predicate offenses. The District Court vacated Mr. Erlinger’s sentence and scheduled resentencing. At the resentencing hearing, prosecutors again pursued an ACCA sentence enhancement based on a new set of 26-year-old convictions for burglaries committed by Mr. Erlinger over the course of several days. Mr. Erlinger protested that the burglaries were part of a single criminal episode and did not occur on separate occasions, as required by ACCA.  Moreover, Mr. Erlinger argued that the question whether he committed these prior burglaries during a single episode or on distinct occasions required an assessment of the facts surrounding those offenses, and that the Fifth and Sixth Amendments required that a jury make that assessment. The District Court rejected Mr. Erlinger’s request for a jury and issued a 15-year enhanced sentence. On appeal, the government confessed error. Pointing to this Court’s recent decision in Wooden v. United States, 595 U.S. 360, which acknowledged that an ACCA “occasions inquiry” can be intensely factual in nature, the government admitted that given the factual nature of the inquiry and its impact on a defendant’s sentence, the Constitution requires a jury to decide unanimously and beyond a reasonable doubt whether Mr. Erlinger’s prior offenses were committed on different occasions. This Court granted certiorari and appointed counsel to defend the judgment below. HELD: The Fifth and Sixth Amendments require a unanimous jury to make the determination beyond a reasonable doubt that a defendant’s past offenses were committed on separate occasions for ACCA purposes. Pp. 5–26. (a) The Sixth Amendment promises that “[i]n all criminal prosecutions the accused” has “the right to a speedy and public trial, by an impartial jury.”  Inherent in that guarantee is an assurance that any guilty verdict will issue only from a unanimous jury. Ramos v. Louisiana, 590 U.S. 83, 93. The Fifth Amendment further promises that the government may not deprive individuals of their liberty without “due process of law.” It safeguards for criminal defendants well-established common-law protections, including the “ancient rule” that the government must prove to a jury every one of its charges beyond a reasonable doubt. Together, these Amendments place the jury at the heart of our criminal justice system and ensure a judge’s power to punish is derived wholly from, and remains always controlled by, the jury and its verdict. Blakely v. Washington, 542 U.S. 296, 306. The Court has repeatedly cautioned that trial and sentencing practices must remain within the guardrails provided by these two Amendments. Thus in Apprendi v. New Jersey, 530 U.S. 466, the Court held that a novel “sentencing enhancement” was unconstitutional because it violated the rule that only a jury may find “facts that increase the prescribed range of penalties to which a criminal defendant is exposed.” Id. at 490.  This principle applies when a judge seeks to issue a sentence that exceeds the maximum penalty authorized by a jury’s findings as well as when a judge seeks to increase a defendant’s minimum punishment. See, e.g., Alleyne v. United States, 570 U.S. 99, 111–113. Pp. 5–10. (b) The government concedes what all of this means for Mr. Erlinger. To trigger ACCA’s mandatory minimum, the government had to prove, among other things, that his three predicate convictions were “committed on occasions different from one another.” 924(e)(1). And as Wooden observed, deciding whether those past offenses occurred on three or more different occasions is a fact-laden task.  As the government recognizes, virtually “any fact” that “increase[s] the prescribed range of penalties to which a criminal defendant is exposed” must be resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in a guilty plea).  Apprendi, 530 U.S. at 490.  Here, the sentencing court made a factual finding that Mr. Erlinger’s offenses occurred on at least three separate occasions. And as in Apprendi and Alleyne, that factual finding had the effect of increasing both the maximum and minimum sentences Mr. Erlinger faced. Thus, Mr. Erlinger was entitled to have a jury resolve ACCA’s occasions inquiry unanimously and beyond a reasonable doubt.  This Court decides no more than that. Pp. 10–12. (c) Court-appointed amicus cannot avoid this conclusion. Pp. 12–22. (1) Amicus relies on an exception announced in Almendarez-Torres v. United States, 523 U.S. 224, which he argues permits a judge to find certain facts related to a defendant’s past offenses, including whether he committed them on different occasions. That decision is an outlier. And the Court has described it as “at best an exceptional departure” from historic practice. Apprendi, 530 U.S. at 487.  It persists as a “narrow exception” permitting judges to find only “the fact of a prior conviction.” Alleyne, 570 U.S. at 111, n.1. Pp. 13–15. (2) Amicus responds that if Almendarez-Torres permits a judge to find the fact of a conviction, that necessarily implies that a judge may also find the jurisdiction in which the underlying offense occurred and the date it happened, which is generally enough to resolve the occasions inquiry, making sending it to a jury pointless. This Court disagrees. To answer such questions, a court will sometimes consult the Shepard documents in a case, which include judicial records, plea agreements, and colloquies between a judge and the defendant.  See Shepard v. United States, 544 U.S. 13. This Court’s cases hold that a sentencing judge may use the information gleaned from Shepard documents for the “limited function” of determining the fact of a prior conviction and the then-existing elements of that offense.  “[N]o more is allowed.” Mathis v. United States, 579 U.S. 500, 511. Moreover, often Shepard documents will not contain all the information needed to conduct a sensible ACCA occasions inquiry, and they can also be “prone to error.” Mathis, 579 U.S. at 512. Pp. 15–19. (3) Amicus insists this Court’s Almendarez-Torres precedents are mistaken, because the Fifth and Sixth Amendments’ original meaning and common-law traditions authorize judges at sentencing to find all manner of facts about an offender’s past crimes. But this Court has been down this road many times before, and to reconsider all those precedents now would require, at the least, convincing proof indeed. See Gaudin, 515 U.S. at 515.  Yet amicus offers nothing like that, and the evidence he does offer does more to hurt than help his cause. Amicus points to supplemental information procedures that a few States employed in the early 19th century. But a sentencing procedure followed by a few States hardly represents “convincing” proof that our precedents have mistaken the original meaning of the Fifth and Sixth Amendments. And in upholding one such scheme, the Court stressed that, under the law’s terms, even “the fact of former conviction” had to be “charged” by prosecutors and then “determined by a jury in a proceeding thereby instituted.”  Graham v. West Virginia, 224 U.S. 616 (1912).  Amicus next turns to the Double Jeopardy Clause, which permits a judge to look into a defendant’s past conduct to ask whether the government has charged a defendant for the same crime a second time. While the Double Jeopardy Clause protects a defendant by prohibiting a judge from even empaneling a jury when the defendant has already faced trial on the charged crime, the Fifth and Sixth Amendments’ jury trial rights provide a defendant with entirely complementary protections at a different stage of the proceedings by ensuring that, once a jury is lawfully empaneled, the government must prove beyond a reasonable doubt to a unanimous jury the facts necessary to sustain the punishment it seeks. Finally, Amicus points to case law and statutes in four other States. But while this evidence may suggest that in a small number of jurisdictions, judges could find the existence, number, and dates of a defendant’s prior convictions, none of this provides a persuasive basis for revisiting this Court’s many precedents forbidding judges from doing more, let alone prove a longstanding tradition. Pp. 19–23. (4) Amicus argues that leaving the occasions inquiry to juries would do more to prejudice than to protect defendants.  That concern, like arguments about efficiency, cannot alter the demands of the Fifth and Sixth Amendments. Tools such as bifurcation in any event exist to address the prejudicial effect evidence about a defendant’s past crimes can have on a jury.  Pp. 23–26.

77 F. 4th 617 vacated and remanded.

GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined. ROBERTS, C. J., and THOMAS, J., filed concurring opinions. KAVANAUGH, J., filed a dissenting opinion, in which ALITO, J., joined, and in which JACKSON, J., joined except as to Part III. JACKSON, J., filed a dissenting opinion.

___________________________________________________________________________________________SMITH v. ARIZONA, 2024 U.S. LEXIS 

No. 22-899

Argued January 10, 2024—Decided June 21, 2024

Justice Kagan

The Sixth Amendment’s Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him.  In operation, the Clause protects a defendant’s right of cross-examination by limiting the prosecution’s ability to introduce statements made by people not in the courtroom. The Clause thus bars the admission at trial of an absent witness’s statements unless the witness is unavailable and the defendant had a prior chance to subject her to cross-examination. Crawford v. Washington, 541 U. S. 36, 53–54.  This prohibition “applies only to testimonial hearsay,” Davis v. Washington, 547 U. S. 813, 823, and in that two-word phrase are two limits.  First, in speaking about “witnesses”—or “those who bear testimony”—the Clause confines itself to “testimonial statements,” a category this Court has variously described. Id., at 823, 826.  Second, the Clause bars only the introduction of hearsay—meaning, out-of-court statements offered “to prove the truth of the matter asserted.”  Anderson v. United States, 417 U. S. 211, 219.  Relevant here, the Confrontation Clause applies in full to forensic evidence. For example, in Melendez-Diaz v. Massachusetts, 557 U. S. 305, prosecutors introduced “certificates of analysis” stating that lab tests had identified a substance seized from the defendant as cocaine.  The Court held that the defendant had a right to cross-examine the lab analysts who prepared the certificates.  In Bullcoming v. New Mexico, 564 U. S. 647, the Court relied on Melendez-Diaz to hold that a State could not introduce one lab analyst’s written findings through the testimony of a substitute analyst.  Finally, in Williams v. Illinois, 567 U. S. 50, the Court considered a case where one lab analyst related an absent analyst’s findings on the way to stating her own conclusion.  The state court held that the testimony did not implicate the Confrontation Clause because the absent analyst’s statements were introduced not for their truth, but to explain the basis for the testifying expert’s opinion.  Five Members of the Court rejected that reasoning. But because one of those five affirmed the state court on alternative grounds, Williams lost.

This case presents the same question on which the Court fractured in Williams. Arizona law enforcement officers found petitioner Jason Smith with a large quantity of what appeared to be drugs and drug-related items.  Smith was charged with various drug offenses, and the State sent the seized items to a crime lab for scientific analysis.  Analyst Elizabeth Rast ran forensic tests on the items and concluded that they contained usable quantities of methamphetamine, marijuana, and cannabis.  Rast prepared a set of typed notes and a signed report about the testing.  The State originally planned for Rast to testify about those matters at Smith’s trial, but Rast stopped working at the lab prior to trial.  So the State substituted another analyst, Greggory Longoni, to “provide an independent opinion on the drug testing performed by Elizabeth Rast.”  At trial, Longoni conveyed to the jury what Rast’s records revealed about her testing, before offering his “independent opinion” of each item’s identity.  Smith was convicted. On appeal, he argued that the State’s use of a substitute expert to convey the substance of Rast’s materials violated his Confrontation Clause rights. The Arizona Court of Appeals rejected Smith’s challenge, holding that Longoni could constitutionally present his own expert opinions based on his review of Rast’s work because her statements were then used only to show the basis of his opinion and not to prove their truth.

Held: When an expert conveys an absent analyst’s statements in support of the expert’s opinion, and the statements provide that support only if true, then the statements come into evidence for their truth.  Pp. 11– 22. (a) The parties agree that Smith’s confrontation claim can succeed only if Rast’s statements came into evidence for their truth.  Smith argues that the condition is satisfied here because her statements were conveyed, via Longoni’s testimony, to establish that what she said happened in the lab did in fact happen.  The State contends that Rast’s statements came into evidence not for their truth, but to “show the basis” of Longoni’s independent opinion.  It emphasizes that Arizona’s Rules of Evidence authorize the admission of such statements for that limited purpose.  Evidentiary rules, however, do not control the inquiry into whether a statement is admitted for its truth.  Instead, courts must conduct an independent analysis of that question.

Truth is everything when it comes to the kind of basis testimony presented here.  If an expert conveys an out-of-court statement in support of his opinion, and the statement supports that opinion only if true, then the statement has been offered for the truth of what it asserts. The truth of the basis testimony is what makes it useful to the State; that is what supplies the predicate for—and thus gives value to—the state expert’s opinion.  And from the factfinder’s perspective, the jury cannot decide whether the expert’s opinion is credible without evaluating the truth of the factual assertions on which it is based.  But that is what raises the Confrontation Clause problem.  For the defendant has no opportunity to challenge the veracity of the out-of-court assertions that are doing much of the work.

Here, Rast’s statements came in for their truth, and no less because they were admitted to show the basis of Longoni’s expert opinions.  All of Longoni’s opinions were predicated on the truth of Rast’s factual statements.  And the jury could credit those opinions because it too accepted the truth of what Rast reported about her lab work. So the State’s basis evidence—more precisely, the truth of the statements on which its expert relied—propped up the whole case; yet the maker of the statements was not in the courtroom, and Smith could not ask her any questions.  Pp. 11–19.

(b) What remains is whether the out-of-court statements Longoni conveyed were testimonial.  The testimonial issue focuses on the “primary purpose” of the statement, and in particular on how it relates to a future criminal proceeding.  But that issue is not now fit for resolution by this Court.  The question presented in Smith’s petition for certiorari took as a given that Rast’s out-of-court statements were testimonial, and the Arizona Court of Appeals did not decide the issue. Indeed, there may not remain a matter to decide, as Smith maintains that the State has forfeited any argument that Rast’s statements were not testimonial.  The testimonial issue, including the threshold forfeiture question, is thus best considered by the state court in the first instance.  Pp. 19–22.

Vacated and remanded.

KAGAN, J., delivered the opinion of the Court, in which SOTOMAYOR, KAVANAUGH, BARRETT, and JACKSON, JJ., joined, and in which THOMAS and GORSUCH, JJ., joined as to Parts I, II, and IV. THOMAS, J., and GORSUCH, J., filed opinions concurring in part.  ALITO, J., filed an opinion concurring in the judgment, in which ROBERTS, C. J., joined.



No. 22-915

Argued November 7, 2023—Decided June 21, 2024

Justice Roberts

Respondent Zackey Rahimi was indicted under 18 U. S. C. §922(g)(8), a federal statute that prohibits individuals subject to a domestic violence restraining order from possessing a firearm.  A prosecution under Section 922(g)(8) may proceed only if the restraining order meets certain statutory criteria.  In particular, the order must either contain a finding that the defendant “represents a credible threat to the physical safety” of his intimate partner or his or his partner’s child, §922(g)(8)(C)(i), or “by its terms explicitly prohibit[ ] the use,” attempted use, or threatened use of “physical force” against those individuals, §922(g)(8)(C)(ii).  Rahimi concedes here that the restraining order against him satisfies the statutory criteria, but argues that on its face Section 922(g)(8) violates the Second Amendment.  The District Court denied Rahimi’s motion to dismiss the indictment on Second Amendment grounds.  While Rahimi’s case was on appeal, the Supreme Court decided New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U. S. 1 (2022).  In light of Bruen, the Fifth Circuit reversed, concluding that the Government had not shown that Section 922(g)(8) “fits within our Nation’s historical tradition of firearm regulation.”  61 F. 4th 443, 460 (CA5 2023). HELD: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed consistent with the Second Amendment.  Pp. 5–17. (a) Since the Founding, the Nation’s firearm laws have included regulations to stop individuals who threaten physical harm to others from misusing firearms.  As applied to the facts here, Section 922(g)(8) fits within this tradition. The right to keep and bear arms is among the “fundamental rights necessary to our system of ordered liberty.” McDonald v. Chicago, 561 U. S. 742, 778.  That right, however, “is not unlimited,” District of Columbia v. Heller, 554 U. S. 570, 626.  The reach of the Second Amendment is not limited only to those arms that were in existence at the Founding. Heller, 554 U. S., at 582. Rather, it “extends, prima facie, to all instruments that constitute bearable arms, even those that were not [yet] in existence.” Ibid. By that same logic, the Second Amendment permits more than just regulations identical to those existing in 1791. Under our precedent, the appropriate analysis involves considering whether the challenged regulation is consistent with the principles that underpin the Nation’s regulatory tradition.  Bruen, 597 U. S., at 26–31.  When firearm regulation is challenged under the Second Amendment, the Government must show that the restriction “is consistent with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U. S., at 24.  A court must ascertain whether the new law is “relevantly similar” to laws that our tradition is understood to permit, “apply[ing] faithfully the balance struck by the founding generation to modern circumstances.” Id., at 29, and n. 7. Why and how the regulation burdens the right are central to this inquiry.  As Bruen explained, a challenged regulation that does not precisely match its historical precursors “still may be analogous enough to pass constitutional muster.” Id., at 30. Pp. 5–8.

(b) Section 922(g)(8) survives Rahimi’s challenge.  Pp. 8–17. (1) Rahimi’s facial challenge to Section 922(g)(8) requires him to “establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745.  Here, Section 922(g)(8) is constitutional as applied to the facts of Rahimi’s own case.  Rahimi has been found by a court to pose a credible threat to the physical safety of others, see §922(g)(8)(C)(i), and the Government offers ample evidence that the Second Amendment permits such individuals to be disarmed.  P. 8. (2) The Court reviewed the history of American gun laws extensively in Heller and Bruen. At common law people were barred from misusing weapons to harm or menace others.  Such conduct was often addressed through ordinary criminal laws and civil actions, such as prohibitions on fighting or private suits against individuals who threatened others.  By the 1700s and early 1800s, though, two distinct legal regimes had developed that specifically addressed firearms violence: the surety laws and the “going armed” laws.  Surety laws were a form of “preventive justice,” 4 W. Blackstone, Commentaries on the Laws of England 251 (10th ed. 1787), which authorized magistrates to require individuals suspected of future misbehavior to post a bond. If an individual failed to post a bond, he would be jailed.  If the individual did post a bond and then broke the peace, the bond would be forfeit. Surety laws could be invoked to prevent all forms of violence, including spousal abuse, and also targeted the misuse of firearms.  These laws often offered the accused significant procedural protections. The “going armed” laws—a particular subset of the ancient common law prohibition on affrays, or fighting in public—provided a mechanism for punishing those who had menaced others with firearms.  Under these laws, individuals were prohibited from “riding or going armed, with dangerous or unusual weapons, [to] terrify[ ] the good people of the land.”  4 Blackstone 149. Those who did so faced forfeiture of their arms and imprisonment.  Prohibitions on going armed were incorporated into American jurisprudence through the common law, and some States expressly codified them.  Pp. 9–13. (3) Together, the surety and going armed laws confirm what common sense suggests: When an individual poses a clear threat of physical violence to another, the threatening individual may be disarmed. Section 922(g)(8) is not identical to these founding-era regimes, but it does not need to be. Like the surety and going armed laws, Section 922(g)(8)(C)(i) applies to individuals found by a court to threaten the physical safety of another. This prohibition is “relevantly similar” to those founding era regimes in both why and how it burdens the Second Amendment right. Id., at 29. Section 922(g)(8) restricts gun use to check demonstrated threats of physical violence, just as the surety and going armed laws do. Unlike the regulation struck down in Bruen, Section 922(g)(8) does not broadly restrict arms use by the public generally. The burden that Section 922(g)(8) imposes on the right to bear arms also fits within the Nation’s regulatory tradition.  While the Court does not suggest that the Second Amendment prohibits the enactment of laws banning the possession of guns by categories of persons thought by a legislature to present a special danger of misuse, see Heller, 554 U. S., at 626, Section 922(g)(8) applies only once a court has found that the defendant “represents a credible threat to the physical safety” of another, §922(g)(8)(C)(i), which notably matches the similar judicial determinations required in the surety and going armed laws.  Moreover, like surety bonds of limited duration, Section 922(g)(8) only prohibits firearm possession so long as the defendant “is” subject to a restraining order. Finally, the penalty—another relevant aspect of the burden—also fits within the regulatory tradition.  The going armed laws provided for imprisonment, and if imprisonment was permissible to respond to the use of guns to threaten the physical safety of others, then the lesser restriction of temporary disarmament that Section 922(g)(8) imposes is also permissible. The Court’s decisions in Heller and Bruen do not help Rahimi.  While Section 922(g)(8) bars individuals subject to restraining orders from possessing guns in the home, Heller never established a categorical rule that the Constitution prohibits regulations that forbid firearm possession in the home. Indeed, Heller stated that many such prohibitions, like those on the possession of firearms by “felons and the mentally ill,” are “presumptively lawful.” Heller, 554 U. S., at 626, 627, n. 26.  And the Court’s conclusion in Bruen that regulations like the surety laws are not a proper historical analogue for a broad gun licensing regime does not mean that they cannot be an appropriate analogue for a narrow one. Pp. 13–15. (4) The Fifth Circuit erred in reading Bruen to require a “historical twin” rather than a “historical analogue.”  597 U. S., at 30.  The panel also misapplied the Court’s precedents when evaluating Rahimi’s facial challenge. Rather than consider the circumstances in which Section 922(g)(8) was most likely to be constitutional, the panel instead focused on hypothetical scenarios where the provision might raise constitutional concerns.  P. 16. (5) Finally, the Court rejects the Government’s contention that Rahimi may be disarmed simply because he is not “responsible.”  The Court used this term in Heller and Bruen to describe the class of citizens who undoubtedly enjoy the Second Amendment right.  Those decisions, however, did not define the term and said nothing about the status of citizens who were not “responsible.”  P. 17.

61 F. 4th 443, reversed and remanded. 

ROBERTS, C. J., delivered the opinion for the Court, in which ALITO, SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, BARRETT, and JACKSON, JJ., joined. SOTOMAYOR, J., filed a concurring opinion, in which KAGAN, J., joined. GORSUCH, J., KAVANAUGH, J., BARRETT, J., and JACKSON, J., filed concurring opinions. THOMAS, J., filed a dissenting opinion.

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The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


The Law Office of Tom Norrid SAMARITAN PROJECTS LLC P.O. Box 9244 Springfield, MO 65801-9244 417-236-1179 The SAMARITAN-PROJECTS prepares post-conviction and compassionat


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