The Justice Department could be on the way to its latest victory this term in cases involving an oft-litigated sentencing law with steep mandatory minimums.

But not if Justice Neil Gorsuch has anything to say about it.

In a case argued April 24 over intent requirements for burglary convictions that can trigger automatic 15-year terms under the Armed Career Criminal Act, Gorsuch was the most aggressive questioner of the government’s argument that a defendant doesn’t need criminal intent prior to entering a location to be considered a burglar under the act.

“I’m sure the practical effects for the government are terrible,” Gorsuch said to assistant to the solicitor general Zachary D. Tripp, referring to the consequences of ruling for the defendant, Jamar Quarles, and thus limiting the number of burglary convictions that can be used to enhance sentences under the act.

Tripp had said that a ruling against the government would lead to “tossing out an enormous number of burglary prosecutions.”

But even though, as Gorsuch conceded, “nobody is here to defend entering without intent and then committing a crime with intent later,” the question is “whether it was burglary,” he emphasized.

Continuing the justice’s trend of taking the government to task in certain types of criminal cases, Gorsuch’s persistent questioning of Tripp throughout the argument suggested he thinks the government is overreaching here.

Yet a majority of the court didn’t seem as convinced as Gorsuch of the wrongness of the government’s position, save perhaps Justice Sonia Sotomayor, who has sometimes teamed up with Gorsuch in criminal matters.

Overall, the hour-long session revealed a struggle on the high court over how to go about answering the definitional question that carries with it significant crime and punishment implications. Some of the considerations for the justices include how much weight to give different states’ burglary interpretations, and how much stock to put into how burglary was interpreted prior to, during, and after the passage of the act in the mid-1980s.

It imposes those mandatory terms on gun offenders with three prior “violent felonies.” Litigation ensues when the parties start arguing over what qualifies as a violent felony.

Burglary qualifies, but it’s undefined in the act. That lack of definition—and a circuit split on the level of intent needed for a crime to qualify as burglary under the act—created an issue ripe for the justices to tackle.

Remaining In

In 1990’s Taylor v. United States, the Supreme Court ruled that a burglary under the act needs to align with “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”

Today’s argument dealt with the “remaining in” part—namely, whether it requires proof of intent to commit a crime at the time of unlawful entry or first unlawful remaining, or whether it’s enough that the defendant formed such intent at any time while remaining in a building or structure.

Quarles pleaded guilty to gun possession in 2015. His prior convictions included two assaults which qualify as violent felonies. But he also had one—which would be his third under the three-strikes sentencing act—that’s contested on that point. It’s a conviction from Michigan for third-degree home invasion, which doesn’t require that the intent to commit the crime be formed when the defendant enters the location.

The issue is whether that lack of an intent-at-entry requirement complies with the definition of burglary from Taylor, such that it can qualify as a prior violent conviction under the act.

It doesn’t, Quarles maintains. His lawyer, Jeremy C. Marwell, of Vinson & Elkins LLP in Washington, said at the beginning of his argument that “nothing in Taylor or the sources that existed at the time of ACCA suggest an intention or acknowledgment of making such a dramatic change” as the government is arguing for, using the acronym for the act.

But even before Justice Samuel A. Alito Jr. could interrogate Marwell, Justice Ruth Bader Ginsburg countered that Taylor “tugs the other way” from how Marwell wanted the justices to read it.

Justice Stephen G. Breyer wondered what difference the intent timing makes in reality.

“Is there any reason to think that the person who stays in the bank, and then, ah, what a nice idea, I’ll help myself to some money, is any the less violent” than when he gets the idea of going into the bank two weeks earlier? he asked.

Marwell said yes, that premeditation shows such a person “will be more resolute in their desire to accomplish that crime.”

Later in the argument, Chief Justice John G. Roberts Jr. mused that “it has to be very unusual that someone enters a bank and only then does it occur to them that that’s where money is that they might want to rob.”

Justice Brett M. Kavanaugh said a well-known treatise cuts against Quarles. Justice Elena Kagan asked questions that went both ways.

Hearing Footsteps

But besides Gorsuch, Sotomayor pushed back against some of Tripp’s premise.

That pushback came after Tripp encouraged the justices to imagine being woken at home “at night from the sound of footsteps downstairs. You come downstairs and there’s an intruder in your house who is stealing your television or, worse, is like intent on assaulting you. I just don’t think anybody would care in that situation or—or know whether the intruder developed that intent three seconds before or three seconds after breaking in.”

The timing of when intent is formed “just doesn’t matter” in that situation, Tripp argued. “What matters is there is an intruder in your house who’s bent on stealing your television or—or assaulting you.”

Sotomayor wasn’t so sure. “Do you think that it’s a different reaction if you hear someone downstairs and they are in your pantry and you come down and they are stuffing their face with food, do you think you’re going to have the same reaction to that person than you had to the person walking away with your TV?” she asked.

Under Supreme Court precedent, courts don’t look to the actual facts of a defendant’s prior conviction to determine whether it’s a violent felony under the act. Instead, courts take a “categorical approach,” asking whether the elements of a given crime qualify. So the question is how the Michigan home invasion law fits under that approach.

The high court has already heard a couple cases involving the act this term. The government won both.

A decision is expected by late June.

The case is Quarles v. United States, U.S., 17-778, argued 4/24/19.