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Justices Parse ‘Occasion’ Meaning in Career-Criminal Appeal (1)

Oct. 4, 2021, 4:55 PMUpdated: Oct. 4, 2021, 7:18 PM

The Supreme Court strained to answer what Justice Samuel Alito called a “nearly impossible question,” as the justices tried to figure out what it means for crimes to be “committed on occasions different from one another.”

Hearing arguments Monday on the first day of the new term, the high court confronted its latest case about the Armed Career Criminal Act. The federal law that perennially perplexes the justices imposes 15-year mandatory minimums on gun offenders with at least three prior violent felonies. The question of what counts as a prior conviction that triggers the act has been the source of much litigation over the years.

This latest case involves the act’s different-occasions clause. William Wooden pleaded guilty to 10 counts of burglary for entering 10 units of a Georgia mini-storage facility on the same night in 1997. Years later, he was subject to the act’s 15-year minimum for a federal gun conviction in Tennessee. The U.S. Court of Appeals for the Sixth Circuit said that his entering 10 units counts as 10 burglaries under the act.

The justices on Monday didn’t sound too sure either way.

“This seems to me to be a nearly impossible question of statutory interpretation because the term ‘occasion’ does not have a very precise meaning,” Alito said.

Justice Stephen Breyer referenced the outlaw robber Jesse James to illustrate the issue as he saw it.

“Jesse James gets on the train and he goes to one person and then the next person and then the next person and takes their stuff,” Breyer said to Erica Ross, the assistant to the U.S. solicitor general arguing for the federal government.

“You’re going to put him in jail for 15 years, where maybe he deserves it, but his cousin Harry James only robbed one car in one train once, but there were four people on it, and then he gave up his life of crime,” Breyer said. He questioned whether Congress intended for both instances to trigger the same penalty.

Justice Elena Kagan said it would be weird for a journalist covering that night in Georgia to describe Wooden’s entering each unit as different occasions. “I mean, that’s just not how anybody would talk about what happened here, is it?” she asked.

Ross said the standard should be that “two crimes are committed on occasions different from one another when their essential conduct elements are satisfied by different acts.”

Arguing for Wooden, Arnold & Porter’s Allon Kedem said the court should read the occasions clause “in plain English.” The question, he said, “is whether it’s its own criminal episode, meaning that in order to show that there are different occasions, the government would have to establish some sort of discontinuity or clean break between them.”

That led Justice Clarence Thomas to ask how much time would have to pass or what would have to happen to break up the occasions. “What if they took a smoke break?” Thomas wanted to know.

Picking up on that line of questioning, Kagan said “I think what Justice Thomas might have been responding to is just a feeling that this is a very loosey-goosey test, you know, that it’s an all things considered, totality of the circumstances. We don’t even really quite know what we’re supposed to look at to decide whether something is an occasion or, take your synonym, an episode.”

How the justices decide the issue could affect thousands of people in addition to Wooden. A ruling is expected by July.

Without the act’s mandatory minimum, Wooden would have been free by 2016. He’s set for release in 2028.

The case is Wooden v. United States, U.S., No. 20-5279.

(Updates with additional details from argument.)

To contact the reporter on this story: Jordan S. Rubin in Washington at

To contact the editors responsible for this story: Tom P. Taylor at; Seth Stern at; John Crawley at

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