Top side SCOTUS brief now files in Erlinger v. US, the case considering Apprendi‘s application to part of ACCA

I still expect the Pulsifer case about the FIRST STEP Act’s expansion of the mandatory minimum statutory safety valve (the “and” versus “or”) to prove to be the most interesting and impactful sentencing case from the current SCOTUS Term.  Pulsifer was the first case argued to start the Term back in October (coverage here), and I am hopeful we might get an opinion in the coming weeks.  But while we wait, I just saw there is new reading material for SCOTUS sentencing fans, as the first set of merits briefs were filed last week in Erlinger v. US. 

Ehlinger, as noted when cert was granted in November, had this formal Question Presented by the federal government:  “Whether the Constitution requires that a jury find (or the defendant admit) that a defendant’s predicate offenses were ‘committed on occasions different from one another’ before the defendant may be sentenced under the Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(1).”  In an earlier post, I flagged that the US Solicitor General, in response to a cert petition, had told SCOTUS that, in light of the  new “standard for determining whether offenses occurred on different occasions [set forth] in Wooden v. United States,” the feds believe that question has to be answered yes.

Becuase both the defendant and the feds now agree that aplication of a part of ACCA implicates Apprendi rights, the top-side merits briefs filed last week come from both the defendant and the US Solicitor General (and can be accessed here from the SCOTUS website).  Both briefs make for interesting reads, though I am going to be even more interested to see next month what the opposing brief from the appointed amicus has to say.