Brenda Greenberg Bryn, assistant federal public defender, Broward. Courtesy photo.

A criminal case argued by Fort Lauderdale attorney and assistant federal public defender Brenda Greenberg Bryn landed at the top of U.S. Supreme Court Associate Justice Brett M. Kavanaugh’s shiny new docket Tuesday.

Kavanaugh was confirmed 50-48 by the Senate and sworn in Monday by President Donald Trump and Justice Anthony Kennedy after a combative confirmation hearing marred by sexual assault accusations from high school and college classmates.

In his first oral argument sitting, Kavanaugh and the panel heard Bryn’s defense of Denard Stokeling from Florida, who was convicted of three “violent” felonies, one of which was an unarmed robbery in 1997.

Retired Justice Anthony Kennedy administers the judicial oath to Justice Brett M. Kavanaugh. Photo: Fred Schilling/Collection of the Supreme Court of the United States.

Stokeling’s case touches on the Armed Career Criminal Act of 1984, a federal law that imposes 15-year minimum sentences on felons convicted of three or more drug or “violent” crimes, including arson, burglary and extortion.

The court considered whether Stokeling’s first crime, the unarmed robbery, should be classified as a violent crime, as the state contends it should. If so, Stokeling’s prison sentence would increase from a 10-year to a 15-year maximum.

Bryn argued that Stokeling’s conviction is not a violent felony under Florida law, which “requires only slight force to overcome slight victim resistance.”

“There are very few states that would be like Florida that also don’t have an armed robbery provision that involves use, display, threat of a weapon,” Bryn said.


Read the full oral argument transcripts: 


Kavanaugh asked only a few questions, which centered around precedent. He challenged Bryn’s comparison to a case involving Curtis Johnson, whose 15-year prison sentence was struck down in 2010 when the Supreme Court found the Florida battery conviction didn’t meet the federal threshold for violence.

In Johnson’s case, “physical force” was found to mean “violent force” that is “capable of causing any pain or injury.” According to the Florida statute, robbery is “the taking of money or other property which may be the subject of larceny from the person or custody of another” and involves “the use of force, violence, assault or putting in fear.”

Frederick Liu, assistant to the solicitor general in Washington, appeared on behalf of the state, which rejected ”the idea that Florida here is somehow an outlier among common law jurisdictions.”

“The petitioner cannot identify a single state whose basic robbery statute, whether based on the common law or not, would qualify under his interpretation,” Liu said.

Liu argued that Congress introduced the ACCA for the precise reason of imposing harsher punishment and avoiding ambiguity.

Stokeling’s case has emerged in tandem with a polarized opinion from the U.S. Court of Appeals for Eleventh Circuit, which agonized over federal career criminal sentences for violent crime, a debate that one judge labeled “nuts.”


‘Judicial Charade’: 11th Circuit Judges Polarized on Sentencing for Violent Crime


David Oscar Markus of Markus Moss.

Bryn told the panel of justices that definitions of violent crime should depend on “judges using their common sense and common experience that they use every day under the guidelines to make determinations of degree, determining what’s minor, what’s major. This is what judging is. This is what juries do.”

Criminal defense lawyer David Oscar Markus, who represents clients from trial court to the U.S. Supreme Court level, said the ACCA statute is “a mess.”

“All criminal practitioners and judges know it,” Markus said. “If we are going to read the statute as it is written, then Florida robbery does not count as ‘violent’ because violence is not needed to effectuate a robbery. If prosecutors don’t like that result, they should call their elected representatives.”

 

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