Supreme Court of the United States

CHIEF JUSTICE ROBERTS: We'll hear argument next in Case 20-5279, Wooden versus United States.
Mr. Kedem.
ORAL ARGUMENT OF ALLON KEDEM ON BEHALF OF THE PETITIONER
MR. KEDEM: Mr. Chief Justice, and may it please the Court:
As its name suggests, the Armed Career Criminal Act singles out the most intractable offenders for the harshest punishments by requiring three qualifying offenses "committed on occasions different from one another."
That phrase does not apply to defendants like Mr. Wooden, who commit their crimes in a single criminal episode.
Some courts have treated crimes as distinct occasions whenever they're committed sequentially rather than simultaneously. But the government does not defend that rule.
Instead, the government would ask whether the final element of each offense was satisfied at the same instant, creating a


simultaneity test on steroids. Even the 

robberies in Petty would flunk that test. 

And the government would tack on yet 

another requirement, that crimes must be 

factually congruent or intertwined, as well as 

simultaneous. 

Rather than adopt the government's 

untested hypertechnical approach, this Court 

should read the occasions clause as it would be 

understood in plain English. Mr. Wooden's 

Ministorage break-in was a single occasion 

involving 10 burglaries. 

I would welcome the Court's questions. 

JUSTICE THOMAS: You seem to define 

the occasion as a distinct criminal opportunity. 

How would you -- how are we to analyze that? 

MR. KEDEM: Sure. So I think the 

question 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. 

Now, for purposes of this case, it 

suffice -- it suffices to note that an occasion 

is not an instant. The fact that Samuel Petty 


and his associates paused for moments in between 

grabbing the goods of their six different 

victims did not mean that the robbery in the 

diner was six occasions. 

JUSTICE THOMAS: Well, how much time 

would have to pass or what would have to happen 

in -- in -- in -- to break the occasions up to 

satisfy you? 

MR. KEDEM: Sure. So it's not solely 

a matter of time or even preliminary -- 

primarily a matter of timing. Really, it's a 

qualitative assessment where, at a minimum, you 

know that if all you have is a continuous stream 

of criminal activity, as in Petty and as in this 

case, you know that you have the same occasion. 

For instance, there was never a moment 

when Mr. Wooden and his associates were not 

committing burglary once they entered the 

structure until they left it, in the same way 

that there was never a moment that Samuel Petty 

and his associates were not committing robbery 

until -- 

JUSTICE THOMAS: Well, I mean -- 

MR. KEDEM: -- they left the diner. 

JUSTICE THOMAS: -- but you're still 


not getting to the point. What if they took a 

smoke break? What if they decided to have 

lunch? What if they said, look, it's time -- we 

-- we've got lots of time; we can go to 

Starbucks,graba--a--a--a--acupof 

coffee or something like that, actually, Dunkin' 

Donut and get a cup of coffee or something? I 

mean -- and they stay for an hour or two. Is 

that enough of a break? 

I'm just trying to figure out what you 

think a break would be to -- to -- to break up 

the continuity. 

MR. KEDEM: Sure. And -- and just to 

be clear, break is perhaps one way that you 

could have an intervening event. It's not the 

only one. I think the question is whether, 

taking into account -- account all the 

circumstances in the context, you have the sort 

of discontinuity where the underlying 

circumstances has changed. 

And if you're talking about an 

activity, for instance, that lasts a matter of 

hours, a few seconds or minutes in between is 

almost never going to be described as a new 

occasion. 


JUSTICE KAGAN: But, Mr. Kedem, you 

answered Justice Thomas first by saying it's not 

only or even primarily a matter of time, 

then, within two sentences, you said the 

question is whether there's a continuous 

of activity, which does seem like it's a 

of time. So isn't it at least primarily 

matter of time? 

and
stream
matter
a
MR. KEDEM: No, Justice Kagan. 

and just to be clear, what I'm saying is 

it is a continuous stream of activity, then you 

know there's no discontinuity almost by 

definition. That is not to say that the thing 

you were looking for is whether it's continuous 

solely. 

You could, for instance, be looking 

for an intervening event of a certain type to 

change the circumstances, an arrest, something 

like that. So timing does play a role, but it's 

not necessarily the prime -- primary role. 

JUSTICE KAGAN: 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 


And -- that if

really quite know what we're supposed to look at 

to decide whether something is an occasion or, 

take your synonym, an episode. 

And so, you know, what would your 

response to that be, that it's just -- you know, 

the words you use in your brief, a juncture of 

circumstances providing conditions that are 

favorable for related activities or events, I 

mean, how are we supposed to know when that 

happens? 

MR. KEDEM: So, admittedly, it is a 

qualitative standard. I do think that the 

statute actually calls for a qualitative 

standard textually, and that's from the phrase 

"different from one another," which is just not 

a phrase you ever use to refer to things that 

are discrete, like times of day. 

For instance, you would never say last 

month I drove into work on 20 days different 

from one another because all days are inherently 

distinct. You would just say on 20 days. 

When you say "different from one 

another," you're referring to something that may 

or may not overlap in a qualitative sense like 

circumstances. 


To your question how do you figure it 

out, admittedly, it is going to be 

context-specific, which means that you're not 

going to be able to necessarily come up with the 

all-inclusive test that is going to resolve 

every case. 

I think it's notable, though, that the 

courts of appeals that apply a 

circumstance-based approach have come to 

relatively consistent results. The government 

doesn't identify any two cases on similar facts 

that come to different answers to the question. 

JUSTICE ALITO: This seems to me to be 

a nearly impossible question of statutory 

interpretation because the term "occasion" does 

not have a very precise meaning. It does seem 

to refer to events at -- that occur at different 

points in time. That, I think, has to be a 

minimum requirement. If three crimes are 

committed simultaneously, a bomb goes off and 

kills three people, that's one occasion, even 

though there are three murders. 

But, beyond that, I find it very 

difficult to determine what additional meaning 

the term has. And I don't fault you for your 


efforts, but they leave me scratching my head. I don't know what they mean. You used the term "criminal opportunity." I have no idea what a criminal opportunity is.
I mean, let me give you some examples. A street light goes out, and a mugger says: Aha, this is a criminal opportunity, I can now mug people who walk by here at night. And he -- and that person does that at 10:00 at night, 11:00 at night, midnight. Is that one criminal opportunity or three?
MR. KEDEM: That sounds to me like the same episode and opportunity.
JUSTICE ALITO: Why? Why is it -- MR. KEDEM: The mugger is essentially
--
JUSTICE ALITO: -- why is it the same episode and opportunity?
MR. KEDEM: So just taking the facts as you've stated them, I don't think that the government would be able to show, for instance, that the mugger wasn't just exploiting the opportunity to mug whoever was walking by.
JUSTICE ALITO: And what -- MR. KEDEM: And --



JUSTICE ALITO: -- what if the mugger 

did it on Monday, Wednesday, and Friday? 

MR. KEDEM: So -- so that really does 

sound like it's a different episode. You're 

talking about an activity that at last -- at 

most lasts a few minutes, separated by -- 

JUSTICE ALITO: What if it's Monday, 

Tuesday, and Wednesday? 

MR. KEDEM: That still sounds like 

different episodes to me, not knowing anything 

additional about the case. 

But, Justice Alito, you know, I think 

may I respectfully suggest that because this is 

the Court's first attempt to construe the 

occasions clause that you don't need to go too 

much further than to say in a case that is 

indistinguishable in all relevant respects from 

Petty, the one thing that we know that Congress 

was trying to ensure in such a case, you know 

that it's the same episode. 

JUSTICE ALITO: Well, Petty -- Petty 

is the root of the problem -- or Congress's -- 

the Solicitor General's confession of error in 

Petty, and then Congress's response is the -- 

the root of the problem. 




Let me give you another example. A 

person goes for a job interview and is 

interviewed sequentially by three people, and 

later the applicant, after being denied 

employment, sues for disability discrimination 

and is questioned, and -- and the questioning 

goes like this: You were interviewed by three 

people, A, B, and C. On which occasion were you 

asked whether you had a disability? 

Would that be an improper use of -- of 

the English language? 

MR. KEDEM: No, because the way that 

you have phrased it, it's clear that you're just 

asking which of the three. 

Now let's put this in the words that 

the statute uses. So, if you were to say, you 

were interviewed three times, was that on the 

same occasion or on occasions different from one 

another? Assuming that it was the same inquiry, 

you would say that was the same occasion. And 

that's essentially what we're dealing with in 

this case. 

JUSTICE ALITO: I -- I -- I think that 

hits it on the head. So it depends on the 

purpose that the person has in mind in using the 




term? 

MR. KEDEM: So I would say that it 

depends on the precise phrasing that you use, 

and the phrase "different from one another," I 

think, hints at something that either may or may 

not overlap qualitatively. 

Can I give you just another textual 

argument as to why I think we're looking for a 

qualitative standard here? And that's the fact 

that the same statute that enacted the Armed 

Career Criminal Act also created the Sentencing 

Commission and charged it with responsibility to 

identify guidelines for offenders who deserve 

higher sentences because they committed more 

than one crime "on different occasions." 

And from the very first set of 

guidelines, the Sentencing Commission has always 

chosen a qualitative approach relying on things 

like intervening arrests, and -- 

JUSTICE ALITO: Well, qualitative 

what? What ultimately are we looking for? I 

think to say we're going to look at the -- the 

totality of the circumstances is meaningless 

unless we know what we are looking for in these 

totality of the circumstances. 



So what are we looking for?
MR. KEDEM: So I think, to look for the same or different episode, you are looking for a discontinuity or clean break, and it's obviously the government's burden to establish that. And the context will tell you a little bit about what considerations are relevant.
JUSTICE ALITO: Well, let me just ask one more question and -- and I'll stop. When yousayacleanbreak,whyisit--whyisa clean break the -- the key?
MR. KEDEM: I think the phrase "different from one another," it's a peculiar -- JUSTICE ALITO: And what does it mean? What -- what is a clean break? How long does it
have to last?
MR. KEDEM: So, again, it's not solely
a matter of timing or even necessarily primarily. I think it can depend on the circumstances. Someone who is arrested and then goes back out and commits a crime even 20 minutes later, that is a clean break. That person has been incapacitated. There's the formal involvement of law enforcement.
But that is very -- just a world away



from the vast majority of cases. And take, for 

instance, Mr. Wooden's '97 Ministorage break-in 

and his 2005 burglary. That is the typical way 

that this arises, where there's essentially no 

argument that there is a continuity between the 

two. 

JUSTICE KAGAN: Is overnight always a 

clean break? 

MR. KEDEM: So the courts of appeals 

-- so, candidly, the court of appeals that apply 

a circumstance-based approach have said 

essentially that if there's a day's separation, 

I don't know about overnight, but a day's 

separation, they have generally treated that as 

enough of a -- of a clean break. 

Now -- 

JUSTICE BARRETT: Go ahead. 

MR. KEDEM: I was going to say I -- I 

don't want to necessarily endorse that, but that 

is the way that they've handled it. 

JUSTICE BARRETT: So my question is 

this qualitative assessment is necessarily 

fact-laden, and that provokes a Sixth Amendment 

problem. So how should we think about the Sixth 

Amendment problem in interpreting the occasions 



16
language? 

MR. KEDEM: So any concerns under the 

Sixth Amendment come from a feature of the case 

that I think is common ground between us and the 

government, which is the fact that we're dealing 

here not with some hypothetical or generalized 

crime but the way that the defendant's crime 

actually unfolded. 

And even on the government's test and 

certainly under the test applied by the courts 

of appeals, you're going to need to know things 

like what day, what time of day, who was 

involved, how did the crime unfold, was it in 

the same place or different places. 

And, you know, our amici, I think, do 

a good job pointing out why this is in serious 

tension at -- at a minimum with the Court's 

Sixth Amendment jurisprudence. 

We don't have a Sixth Amendment claim. 

And because Mr. Wooden's case is so clearly 

outside the scope of the statute, I would 

respectfully suggest that it's not necessary for 

the Court to get into that. 

CHIEF JUSTICE ROBERTS: Counsel, going 

back to Justice Alito's hypothetical about the 




street light, if I understood your answer right, 

you're saying, if the street light goes out and 

the individual thinks this is a great 

opportunity to mug people and he lies there and 

mugs person after person, you -- you call that 

one occasion, right? 

MR. KEDEM: That's correct. 

CHIEF JUSTICE ROBERTS: Okay. What if 

what makes it dark is that it's a moonless 

night? He says, the moon is not out tonight, 

it's dark, I can mug person after person. One 

occasion or multiple occasions? 

MR. KEDEM: I'm sorry, you're saying 

on one evening? 

CHIEF JUSTICE ROBERTS: Yeah, it's one 

evening, and his -- and he has an opportunity 

because the moon is -- is not out. 

MR. KEDEM: That sounds like one 

occasion to me as well. 

CHIEF JUSTICE ROBERTS: Uh-huh. 

JUSTICE BARRETT: Counsel, I would -- 

JUSTICE GORSUCH: The -- 

JUSTICE BARRETT: Oh. Go ahead. 

MR. KEDEM: And one -- I'm sorry. 

JUSTICE BARRETT: Go ahead. 




MR. KEDEM: One notable feature of 

this case which also makes it very like Petty is 

it's not just that the crimes were continuous. 

It's that the same activity went to all of the 

crimes. There was a single entry point into the 

Ministorage facility here in the same way that 

there was a single application of force in 

Petty, and I think that's another case where 

it's very clear that what you're dealing with is 

a single occasion. 

JUSTICE BARRETT: I want to -- 

JUSTICE KAGAN: So suppose -- 

JUSTICE BARRETT: I want to resist the 

proposition that occasion is used to mean 

opportunity here. When occasion means 

opportunity, it's I had no occasion to consider 

that question. I think occasion in this statute 

gets closer to something else you've said, which 

is more like event, like a wedding was an 

occasion, that was a lovely occasion. 

But I think it's difficult -- let's 

say it is a jury question to figure out how the 

jury instructions are worded to let the jury 

know when one -- when this event begins and when 

it ends because, if I talk about a wedding, if I 




talk about an anniversary dinner, I mean, it -- 

it's -- it's obvious because it's united by a 

particular purpose. 

In the context of criminal activity, 

it's not so clear. 

MR. KEDEM: So, admittedly, it's not 

always clear, but let me read to you an analogy 

in the RICO context because it's actually not 

that unusual to have this sort of relatedness 

standard in the criminal law. 

So, under RICO, you need to point to a 

pattern of related criminal activity. And this 

Court has pointed among other things to 

"criminal acts that have the same or similar 

purposes, results, participants, victims, or 

methods of commission or otherwise are 

interrelated by distinguishing characteristics 

and are not isolated events." 

Now, admittedly, that's not identical 

necessarily to what you would be talking about 

in the ACCA context, but it's qualitative and 

multifaceted in the same way. 

Other states actually also have 

recidivist statutes where they charge juries 

with determining whether crimes were committed 


on the same occasion, and they use pretty similar language. Arizona, for instance, has one of those.
JUSTICE KAGAN: Suppose that there was a--a--a--a--acrimebossandhewasa good multitasking crime boss, and he had a few phones in front of him, he's sitting in his office one day, and on one phone he's arranging a sale of illegal drugs and on another phone he's ordering the killing of a -- a competing crime boss and on another phone he's involved in an illegal gambling operation, and they're all going on very close in time to each other.
Single occasion or three occasions?
MR. KEDEM: So I would say that that's a single occasion, but I can understand how if you decided that the thing that was important was that the crimes had essentially no relationship whatsoever to one another?
JUSTICE KAGAN: Yes. I mean, that's the -- supposed to be --
MR. KEDEM: Sure. Yeah.
-- JUSTICE KAGAN: -- the crimes have no relationship to each other.
MR.KEDEM: So--so--soI--I



would grant you that a lot of people, I think, 

would look at that and say those are three 

different occasions. And that actually gets to 

a feature of the government's test that is a 

little bit underdescribed but I think 

problematic along the same dimension. 

JUSTICE KAGAN: Well, before you do 

that -- 

MR. KEDEM: Sure. 

JUSTICE KAGAN: -- I mean, isn't that 

to say then, I mean, your -- it -- it -- that 

what you are really saying, your test, is that 

there is this very important timing aspect, 

which is that a substantial break in time 

between offenses is pretty nearly dispositive, 

but when the offenses are close in time, then 

you have this more qualitative inquiry where 

you're looking at the nature of the crimes and 

who the victims are and, you know, things like 

that? 

MR. KEDEM: So I think you could 

describe the test that way. I suppose I 

wouldn't put such emphasis on timing. I do 

think that in most cases, because offenses will 

be separated by years, like Mr. Wooden's 2005 




burglary, that will probably be sufficient for 

the vast majority of cases. 

I think, for this case, it suffices to 

say that the phrase occasion doesn't solely 

refer to things that overlap temporally and 

certainly doesn't refer solely to the instant at 

which the final offense element is satisfied, 

and that's really all you need to know in order 

to decide this case. 

JUSTICE ALITO: What -- what would the 

-- the result be -- what would the result be in 

this case if the following happened? They -- 

they -- Mr. Wooden breaks into the first unit 

and steals goods inside, breaks into the second 

unit and not only steals goods but then sets the 

unit on fire, and then, while breaking into the 

third unit, the owner shows up and Mr. Wooden 

kills him. Are -- are those -- is that one 

episode, one criminal opportunity, one occasion? 

MR. KEDEM: That -- that would be one 

very serious criminal episode. And I think it's 

important to emphasize that the occasions 

question is not a question about how serious the 

offenses are. By hypothesis, all of these are 

violent felonies or serious drug offenses. And 




you could have the most horrific crime that 

because it all happened at once, like a bombing, 

it is only a single occasion. But -- but -- 

JUSTICE ALITO: No, I understand that, 

but I think you were saying a few minutes ago 

that it matters whether the offenses -- the 

example of the crime boss, it matters whether 

the offenses are different -- whether they are 

separate -- different offenses or whether it's 

three offenses of the same kind. 

MR. KEDEM: So I think that's correct, 

but, as I understood your hypothetical, you were 

talking about a situation where someone was 

essentially just going from room to room and 

committing additional crimes as they appeared to 

the person based on the fact that this was 

flowing from one to another. 

In other words, each crime was 

essentially facilitating the others, which is 

another feature both of this case and the Petty 

case. 

JUSTICE SOTOMAYOR: Counsel, Justice 

Alito pointed to this earlier because, even in 

his example of simultaneous, I'm not even sure 

what that means because, if you have someone who 


throws a bomb and kills three people, you could say that's simultaneous. But how about if they're in the room, throw a small bomb, kills three people, and then robs them?
MR. KEDEM: Right.
JUSTICE SOTOMAYOR: All right? MR. KEDEM: And --
JUSTICE SOTOMAYOR: So I have a
question. Have you given -- no one's actually addressed this at all or alluded to it. Is this so vague and so incapable of rational application? Because even the government's proposed test suffers from its own set of vagueness, what happens when things overlap, okay, and how do you determine when the last element was committed because a kidnapping lasts until someone flees. So does that mean if you kidnap someone and rape them and do all these other things, is that one episode or not? I think they would say not, but I'm not sure why.
MR. KEDEM: Yeah.
JUSTICE SOTOMAYOR: But having said that, is there any answer to my vagueness point?
MR. KEDEM: So I don't think the Court, certainly, at this juncture, having



confronted this issue for the first time, should 

be prepared to decide that it's vague. We 

haven't made an argument -- the government 

doesn't even make a constitutional avoidance 

argument. 

I think what led the Court to decide 

that the residual clause of the ACCA was vague 

was largely the fact that you were trying to 

hypothesize a sort of generic version of a crime 

that just didn't exist. Here, we're dealing 

with a specific defendant's conduct. 

Just to return to Petty for a moment, 

I think it's key for a couple reasons, one of 

which is the fact -- and not to put too fine a 

point on it, but the one thing we all agree that 

Congress was trying to do by enacting the 

occasions clause was to make sure that Samuel 

Petty and people like him would not be career 

criminals. And under the government's test, 

Samuel Petty would be a career criminal. 

But I think the Solicitor General's 

confession of error contained an argument there 

that was inconsistent not just with the 

government's simultaneity test on steroids but 

even with the sort of more overlapping sense 




that the courts of appeals have been applying, 

because the Solicitor General in that case 

pointed to state cases that rejected 

enhancements in situations no different from 

this one, including the Tavares case, which 

involved two burglaries on the same day. 

There is no way that the Solicitor 

General would have pointed to those cases as a 

proper application of -- a proper application of 

enhancement statutes if the Solicitor General 

believed that the only thing that mattered was 

whether they overlapped. 

JUSTICE BREYER: Did you get anywhere 

with episodes? 

MR. KEDEM: Pardon? 

JUSTICE BREYER: Did you get anywhere 

with episodes? I mean, suppose we tried to work 

with that. 

MR. KEDEM: I think episode is a 

really intuitive way to put it. It's in our 

question presented. We use the phrase dozens of 

times in our briefs. I think, put in that term, 

it's even clearer that the Ministorage break-in 

was a single episode for the same reason that 

the diner robbery was. 




JUSTICE BREYER: So, in -- in your 

view, are we better off, assuming you win this 

case, just saying, look, they were the same 

episodes, it was one episode, it's like Jesse 

James robbing a single train, okay, and using 

words like that or "same occasion" -- 

MR. KEDEM: Yeah, I think -- 

JUSTICE BREYER: -- and not try to go 

further, or would it be better to try to go 

further and talk about the time and the 

simultaneous event and so forth? 

MR. KEDEM: So I think it would be 

certainly appropriate to say what you're looking 

for is a single episode, and you're not focusing 

on whether crimes are simultaneous or 

overlapping and certainly not whether the final 

offense element is satisfied at the same moment. 

And I don't think you need to go any 

further and just apply that to the obvious facts 

on this case and say this was a continuous 

stream of criminal activity, the same acts were 

making up various offenses, it's just like 

Petty, it's the same episode. 

CHIEF JUSTICE ROBERTS: I want to go 

back to the dark night. You -- the -- the moon 


is not out and anything the guy does that night is one episode?
MR. KEDEM: So I don't think necessarily. I think you could --
CHIEF JUSTICE ROBERTS: Well, anything he does outside, I guess.
MR. KEDEM: So knowing nothing else other than what you've said, I -- I don't think the government would have sustained its burden if all it can say is there were various activities outside at night on a moonless night. I think the government would have to point to some other discontinuity in addition to that.
CHIEF JUSTICE ROBERTS: So that qualifies the fact, I guess, how many -- what do you have, two moonless nights a month or what? That would be a juncture of circumstances giving rise to an opportunity?
MR. KEDEM: You know, it really depends on whether the crime was, in fact, facilitated by that moonless night or at least, you know --
CHIEF JUSTICE ROBERTS: It's -- it's -- it's --
MR. KEDEM: -- that is an element of

the crime.
CHIEF JUSTICE ROBERTS: -- it's dark.
Everything is outside. And he -- MR. KEDEM: Right.
CHIEF JUSTICE ROBERTS: -- you know, mugs somebody, you know, robs somebody else, right? Everything that's easier to get away with --
MR. KEDEM: Yeah.
CHIEF JUSTICE ROBERTS: -- in a dark night than during the day.
MR. KEDEM: So, to me, that seems like a single episode and a single juncture of circumstances. You don't have to agree with me --
CHIEF JUSTICE ROBERTS: What are the circumstances?
MR. KEDEM: Sure. So, I mean, it sounds like you are positing crimes that are facilitated by -- both by being outside and being outside on a moonless night. And --
CHIEF JUSTICE ROBERTS: So those are two -- the two, outside, moonless night?
MR. KEDEM: And -- and from what I took from your hypothetical, again, just going

on what you've given me, is that the criminal is lying in wait for whoever walks by. But, you know, again, you might posit additional facts that might change the circumstances.
This case, though, is the molten core of a single episode, and we would urge the Court to decide at least that much.
JUSTICE ALITO: What is the definition of an episode?
MR. KEDEM: So episode is related activities or events that are separated from others by a discontinuity or clean break.
JUSTICE KAGAN: What's the molten core of an episode?
(Laughter.)
MR. KEDEM: So the molten core of an episode, Justice Kagan, involves continuous criminal activity where literally the same acts are being used in furtherance of multiple crimes.
CHIEF JUSTICE ROBERTS: Justice Thomas?
JUSTICE THOMAS: You criticize the government's test as being incompatible with the categorical test. How does -- how is yours

compatible? And how would you use it? MR. KEDEM: So I don't think the
categorical approach applies to the occasions clause because you have to look not at some generic version of a crime but the way that the defendant actually committed their offense.
What we were -- if I can just add one more point?
JUSTICE THOMAS: Yeah.
MR. KEDEM: What we were arguing is that the government's test cannot be applied based solely on elements as far as we can tell to any crime. That's what we were arguing.
JUSTICE THOMAS: How would that work in one of these cases practically? Would they have -- would -- would we have to have a separate hearing?
MR. KEDEM: So my understanding, if you're asking about the way things currently work --
JUSTICE THOMAS: Yes.
MR. KEDEM: -- is that sentencing judges do this -- sometimes there might be a hearing, but in general, they do it as they do regular ACCA sentencing.



JUSTICE THOMAS: So you risk -- do you 

risk running into a Sixth Amendment problem? 

MR. KEDEM: As I understand this 

Court's Sixth Amendment jurisprudence, I think 

there is a concern, but it's not at -- directly 

at issue in this case. 

JUSTICE THOMAS: That'll be your next 

case? 

MR. KEDEM: I hope so. 

(Laughter.) 

CHIEF JUSTICE ROBERTS: Justice 

Breyer? 

Justice Alito? No? 

JUSTICE BREYER: Well, I do have, 

actually. I mean, the thing that's puzzled me 

in this is, see, it sort of works backwards in 

some instances. Imagine the drug lord that 

Justice Kagan was talking about or the 

equivalent, and he gets a plan that every third 

day he will sell drugs and it's a unified plan 

of great complexity involving delivery and where 

you go and the car and all that kind of stuff, 

and he writes it all down on a single piece of 

paper. Now there we have what seems like a 

single plan. But the assistant, all he gets 


are, on Tuesday, go here and pick up the drugs, and on Thursday, you go here and pick up some others and so forth. So it looks like he's done a bunch of things.
So the worse guy gets the better sentencing treatment, and the better guy, a little better, gets the worse sentencing treatment. Hmm. But maybe that's what you say because you say this part of the sentencing law isn't concerned with that kind of worse or better?
MR. KEDEM: I --
JUSTICE BREYER: I'm just saying what's going around in my mind.
MR. KEDEM: I -- I -- I think you could say that or you could say that each criminal associate is responsible for the behavior of the others. And so it doesn't really draw a distinction along those lines.
JUSTICE BREYER: No. All right.
CHIEF JUSTICE ROBERTS: Justice Gorsuch?
JUSTICE GORSUCH: I do have a couple questions. Thanks, Chief.
So the dark and moonless night



hypotheticals are hard. 

MR. KEDEM: They are. 

JUSTICE GORSUCH: And you've -- you've 

done your best with your totality of 

circumstances, but -- but often I -- I think, if 

we're candid, we probably would all admit that 

it's going to run out at some point and -- and 

there's going to be some close cases beyond the 

molten core. 

What role does lenity have to play in 

those circumstances in your view? Why should 

the tie go to one side or the other? 

MR. KEDEM: So I -- I candidly 

acknowledge that members of this Court have 

different attitudes towards the role that 

lenity -- lenity should play. I think, at a 

minimum, it should incline you to choose a plain 

meaning over a hypertechnical meaning and 

especially so in a case involving mandatory 

minimums of 15 years to life. 

JUSTICE GORSUCH: That's my -- that -- 

that's my second -- so we have lenity as a 

tie-breaking rule. Does it have particular 

purchase in a case, for example, here, where 

mandatory minimums are sometimes invoked by the 


government, in this case, it wasn't initially and then --
MR.KEDEM: I--I--I--
JUSTICE GORSUCH: -- and then later are or can be as a matter of policy? Does that raise, you know, fair notice, separation of powers concerns.
MR. KEDEM: I -- I agree --
JUSTICE GORSUCH: -- in your mind? MR. KEDEM: I agree with all of that.
And, you know, Justice Breyer has written and we quote from an opinion of his pointing out that when you're dealing with a mandatory minimum, you're dealing with a situation where, no matter what, the judge just has no ability to account for the circumstances.
And I think lenity should incline you against that sort of punishment, whereas there's a sort of asymmetry for a zero to ten, you know, an up-to-ten maximum sentence where the judge can take those things into account.
JUSTICE GORSUCH: Now does that have some relationship in your mind to the Major Questions Doctrine?
MR. KEDEM: I feel like this is a



law -- law school exam. You know, I think -- I 

think it -- we should be extraordinarily 

reluctant to think that Congress has decided to 

make so much time of -- of a person's life turn 

on something that is so hypertechnical or such 

small distinctions like small moments in time 

and -- and the distinctions between offenses. 

JUSTICE GORSUCH: Thank you. 

CHIEF JUSTICE ROBERTS: Justice 

Kavanaugh? 

JUSTICE KAVANAUGH: No further 

questions. 

CHIEF JUSTICE ROBERTS: Justice 

Barrett? 

JUSTICE BARRETT: No. 

CHIEF JUSTICE ROBERTS: Thank you, 

counsel. 

Ms. Ross? 

ORAL ARGUMENT OF ERICA L. ROSS 

ON BEHALF OF THE RESPONDENT 

MS. ROSS: Mr. Chief Justice, and may 

it please the Court: 

Contrary to Petitioner's suggestion, 

the government's rule is faithful to the text 

and it does not depend on synchronicity between 




the final elements of different crimes. 

Rather, two crimes are committed on 

occasions different from one another when their 

essential conduct elements are satisfied by 

different acts. That reflects the statute's 

text. 

If the same act satisfies an element 

of two different crimes, then the commission of 

each offense is not a different occasion, that 

is, a different event, occurrence, or happening. 

The government's test also furthers 

the statute's purpose because it separates 

defendants who have been held criminally 

responsible for multiple discrete acts from 

those who have been held responsible for a 

single act that resulted in several statutory 

violations. 

Now I agree with my friend that in the 

vast majority of cases we can apply -- we can 

decide this question pretty easily. On our 

test, they can be resolved by a simple rule of 

thumb. If one offense is over before the next 

begins, then the two are committed on different 

occasions because their essential elements are 

necessarily accomplished through different acts. 


Two examples illustrate the point. 

First, if a defendant burglarizes ten houses on 

the same street, those are necessarily ten 

different occasions. He could not have 

unlawfully entered each home through one act, 

and he had the choice not to commit another 

crime between each one. 

Second, if a defendant robs ten people 

in one place with the same stick-up, as in 

Petty, that one act marks only one occasion. 

As I think has become clear this 

morning, Petitioner's freewheeling approach 

would be much more difficult to apply. He would 

require courts to seek to identify the juncture 

of circumstances that gave rise to the relevant 

criminal opportunity. 

But none of that language is in the 

text, and Petitioner's rule would require courts 

to examine granular facts that state court 

records often will not include. 

Petitioner's approach also would yield 

inconsistent results. Different judges will 

have different intuitions about what -- when one 

occasion ends and another begins. 

This Court should reject Petitioner's 




invitation to uncertainty and inconsistency and 

affirm. 

JUSTICE THOMAS: Ms. Ross, is there 

any way using either your test or Petitioner's 

test to avoid fact-finding that seems to run the 

risk of involving us with the Sixth Amendment? 

MS. ROSS: Yes, Your Honor. I think 

that our test does avoid that, and I would 

appreciate the opportunity to explain why. 

In this case, all you need to know is 

the elements of Petitioner's offense. There 

were ten burglaries. Burglary necessarily 

requires an unlawful entry or remaining in of a 

structure. If Petitioner had said, in fact, 

these were all one burglary, the Court would be 

able to look at the indictment and say, you 

know, yes or no based on are they different 

structures or, if it's one structure, are they 

different times? 

So it's the same types of facts that 

we think, first of all, are inherent in this 

crime and the elements of burglary but also that 

courts could look at in a double jeopardy 

context, and I think no one thinks that that 

raises a Sixth Amendment issue. 




I think, you know, burglary is perhaps 

the easy case because you do need this unlawful 

entry of separate structures, but I think the 

vast majority of these cases come up in the 

robbery or the burglary context. And if you 

look at robbery, for example, again, you might 

have a case like Petty where there are six 

victims in one place and you don't know from the 

face of the indictment or -- or the other 

Shepard documents whether the -- the -- the act 

was actually two -- two separate robberies 

where, you know, the gun was pointed at one 

person, then the gun was pointed at the other. 

If that's the case, we're just going 

to lose that case on the face of the Shepard 

documents. So I don't think you're getting into 

the facts. 

I think, by contrast, if the 

indictment says, you know, there were two 

robberies on June 20, we have Jones and we have 

Smith, but it also says Jones was at, you know, 

1030 Northern Boulevard and Smith was at 1050 

Northern Boulevard, we're going to know that 

those were two separate occasions. And, again, 

that's the kind of fact that I think judges can 




rely on without contravening the Sixth 

Amendment. It's the kind of fact, for example, 

that if it had changed between the indictment 

and the -- the jury trial or the conviction, you 

would think there would be a constructive 

amendment problem, for example. So I think 

these are sort of the types of facts on our view 

that you can look at. 

Now, of course, if Petitioner were to 

prevail in this case, the government is not 

saying that there would necessarily be a Sixth 

Amendment problem, but I think, to the extent 

that you have Sixth Amendment concerns, our view 

mitigates those, whereas Petitioner's does, as 

various questions have revealed this morning, 

exacerbate those concerns. 

JUSTICE THOMAS: Thank you. 

CHIEF JUSTICE ROBERTS: So what we 

would do is look back, I'm not quite sure how 

far back, and just -- it's very simple, right -- 

compare the elements of the two different crimes 

that are alleged to have occurred on the same 

occasion or a different one, and apparently each 

of the 50 states have different views of what 

constitutes an element of some particular time 




or at least they're not uniform? 

And, of course, we would have to look 

at each one to see if it's a different occasion. 

And I guess, at some point, we'd have to figure 

out what documents we look at in determining 

whether a particular element was -- was present, 

and that, you say, will avoid inconsistent 

results across the country. 

Are you really sure that might be what 

happens? 

MS. ROSS: So, Your Honor, a couple of 

points. 

I think, first off, of course, these 

have to be sort of generic burglaries or generic 

-- or -- or have an element of the use of force 

or, you know, they have to fall within the ACCA 

to begin with. 

So I don't think you're actually 

looking at the burglary elements per se because 

we know for generic burglary law that you need 

the unlawful entry or remaining in, and we know 

from a double jeopardy perspective that if you 

have, you know, one time, one structure, that's 

going to be one offense. So I think it's maybe 

not quite as complicated as you suggested. 




I think, in terms of how consistent 

this will be, you know, I do think it's the 

government's burden and I think where the 

documents, in particular, we think most of these 

cases, again, because they tend to arise in 

these sequential robberies, sequential burglary 

contexts are going to be easily resolved on the 

indictment, I think, at a maximum, you would be 

looking at the other Shepherd documents, and so 

I don't think that the Court needs to recreate 

the wheel here. 

I do think, again, that, you know, our 

approach has those benefits of administrability 

where I -- as I do think Petitioner's approach, 

you know, even if you get past what I think are 

the textual problems with it and the contextual 

problems with it, meaning that the ACCA is 

obviously a statute in which Congress did not 

want judges sort of sifting through a voluminous 

state court trial record trying to figure out 

exactly how a crime happened, much less the 

surrounding circumstances -- 

CHIEF JUSTICE ROBERTS: Well, we're 

talking about an extra 15 years based on, for 

example, conduct in this case, where they're in 




the storage facility and they're just kicking 

down the walls to go from one to another. 

I think it might require a more 

careful examination of the different elements 

than you suggest. 

MS. ROSS: So, Mr. Chief Justice, you 

know, I respectfully disagree. I think the fact 

that state law treats these as separate 

locations, separate structures for purpose of -- 

purposes of burglary, you know, Petitioner could 

have an argument that that's wrong as a -- as a 

generic burglary question. 

This Court is certainly familiar with 

cases construing, you know, what is and isn't a 

structure for purposes of burglary. But that's 

not his argument. So his argument is that, yes, 

these are separate burglaries under state law 

and I just want them to be one occasion because 

these happen to be attached to each other. 

I think judges' intuitions are going 

to differ on that, and if you imagine, you know, 

this hypothetical -- this case is not so 

different from, you know, the apartments that 

are next door to each other and are burglarized, 

the row homes that are next door to each other 




and share an adjoining wall and they break 

through the wall. You know, then you have to 

distinguish the houses that are on the same 

street. You know, is it enough if you go to the 

next town? Where do you draw the line? 

And I think what Congress would not 

have wanted in this area where, as you correctly 

note, there is a significant mandatory minimum 

sentence is it being entirely dependent on a 

judge's intuition about how far is enough or how 

long is enough. 

JUSTICE KAGAN: Ms. Ross, could I make 

sure I understand your argument? Because -- 

MS. ROSS: Sure. 

JUSTICE KAGAN: -- you know, to be 

frank, I read your brief in the way that 

Mr. Kedem read your brief, that the question is, 

when was the -- when did the commission of the 

crime take place? That is, when was the last 

element satisfied? 

Now you're saying that that's not your 

test and that your test is some more -- some 

looser understanding of what sequential activity 

is. Is that -- is that right? 

MS. ROSS: No, Justice Kagan. So we 




are saying -- so, partially, yes, we are saying 

that it is not the final element. When we said 

the elements are completed, what we meant was 

you're looking at the period of time during 

which people are committing the elements of the 

offense, that that is how you know sort of what 

an occasion is. It is bounded in a time sense. 

JUSTICE KAGAN: So, in Petty, when 

they go from person to person to person to 

person and they take each person's goods, you 

say that still counts as one occasion? 

MS. ROSS: That's correct, Your Honor, 

and the reason -- -- 

JUSTICE KAGAN: And then the question 

is, when you don't go from person to person to 

person, but instead you go from storage unit to 

storage unit to storage unit in a single 

facility, why isn't the same true? 

MS. ROSS: Sure, Your Honor. So I -- 

I want to clarify our position with respect to 

Petty. I think the thing that makes Petty one 

event and one act is that there is an 

overlapping -- as I think I heard my friend say 

this morning, there's an overarching use of 

force there. When you go in as a robber and you 




say -- you know, you put up your gun and you say 

give me all your money, they then subsequently 

maybe have to go person to person, but they are 

sort of already in. They've already committed 

part of the act of burglary -- 

JUSTICE KAGAN: Well -- 

MS. ROSS: -- or, excuse me, robbery, 

one of the essential elements. 

JUSTICE KAGAN: -- didn't Mr. Wooden, 

basically, already commit to -- to going into 

the storage facility and then he goes to this 

box and this box and this box? 

MS. ROSS: So -- so I don't think so, 

Your Honor, I think both as a matter of law but 

also as a matter of fact. So, as a matter of 

law, obviously, as we've talked about this 

morning, the state simply treats those as 

separate burglaries. That is a separate entry. 

As a matter of fact, I think that 

makes significant sense. Every time Mr. Wooden 

and his confederates chose down to break down 

another wall is another decision to break the 

law. It is another moment where they said, you 

know, that was fun, let's do this again, all the 

way up to ten. And I think that is very 




different from the simultaneous robbery 

situation where a defendant raises his gun once 

and he's committed -- at least attempted -- 

JUSTICE BREYER: Well, how do you know 

this? How do you know this? I mean, what we 

have is a piece of paper 15 years old or 10 

years old, and it says on it pled guilty, 

charge, robbery. Okay? And -- and I have no 

idea what went on, nor the judge. And judges 

all the time have to decide things like this 

under the guidelines. 

And -- and so what you're saying is 

that Jesse James, who -- I know what he did 

because I've seen movies, all right? So 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. You know, he 

takes -- 

JUSTICE KAGAN: And the next car and 

the next car and the next car. 

JUSTICE BREYER: Yeah, correct. 

Correct. 

MS. ROSS: Sure. 

JUSTICE BREYER: And, moreover, 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. And you're saying not just Harry but also -- not just Jesse but Harry too will spend 15 years in jail extra?
Now, if you can convince me Congress intended that at the same time that they passed this -- the sentencing guidelines, I -- I'd like to hear it.
MS. ROSS: Sure. So -- so two responses, Your Honor.
The first, to those particular hypotheticals, I think this points up a problem in -- any time you're looking at past convictions, and so I think what is going to happen is, if all you have is Your Honor's example of the indictment that says robbery X date, we're just going to lose that case. We're going to say --
JUSTICE BREYER: Why?
MS. ROSS: Because --
JUSTICE BREYER: Why are you going to
lose it?
MS. ROSS: Because we don't think that



you go beyond basically the basic facts, the 

core elements of the offense. 

JUSTICE BREYER: Oh, you say it just 

says one. But this actually says, you know, you 

see the indictment and maybe you see that, maybe 

it says there were ten people. It says five 

people. It lists the things stolen, Joe Smith's 

watch, et cetera, et cetera. 

MS. ROSS: Right. So, again, we're 

not going to know whether it was a Petty 

situation where they just had -- held up their 

gun all at once or whether they went person by 

person, and so we're going to lose that case. 

JUSTICE BREYER: Why? 

MS. ROSS: The second point -- because 

-- 

JUSTICE BREYER: Why? 

MS. ROSS: -- because -- 

JUSTICE BREYER: Most robberies where 

you go through the train, you would assume -- it 

says train robbery. You would assume that the 

guyinCar2didn'tseeaguninCar1. Hejust 

saw a guy with a mask. 

MS. ROSS: So I'm not quite sure if 

I'm following -- 


JUSTICE BREYER: All right. Forget it.
MS. ROSS: -- why that would be different.
JUSTICE BREYER: Forget it. I'm going off too far.
MS. ROSS: But --
JUSTICE BREYER: Go ahead.
MS. ROSS: -- but, in terms of what
Congress intended here, you know, I think that Congress very reasonably determined that the person who commits what state law has considered to be a full offense, a complete offense, and what Congress has in turn considered to be its own violent felony, and turns and does that multiple occasions without -- you know, whether they take a smoke break or not in between is a more dangerous person --
JUSTICE SOTOMAYOR: Counsel --
MS. ROSS: -- than the person -- JUSTICE ALITO: Well, that was the law
before it was amended, and it -- it was harsh, but it was clear. So you commit three robberies, it's three strikes, okay? But then it was amended. They add the -- the term



"occasions." I have no idea what an occasion is 

or what a criminal opportunity is or what a 

criminal episode is. 

But you have a real problem, I think, 

with Petty. So let's say that there are three 

people in a car driving on a dark night out in 

the middle of nowhere and they see a hitchhiker. 

They're kindhearted people. They stop to pick 

up the hitchhiker. The hitchhiker pulls a gun, 

points the gun at the first person in the car 

and says give me your money. The person gives 

them the money. And then he says walk off. And 

so he's done with that person. Then he robs the 

second one, same thing, walk off. Robs the 

third one, walk off. 

Is that one occasion or two occasions? 

Is that Petty, or is it this case? 

MS. ROSS: So I think that that is 

this case, but I think it is very likely that 

you are not going to know from the record 

documents and that we would -- as I keep saying 

perhaps oddly, we are going to lose that case. 

Now, if I could go back to what 

Congress had in mind with Petty, I think it's -- 

JUSTICE ALITO: Well, just -- let me 




just say that the difference between that 

situation and Petty seems to me utterly 

inconsequential. It can't -- how can it 

possibly be that you have different results in 

those two instances? 

MS. ROSS: So I think because Congress 

decided that somebody who, again, commits a full 

violent felony and then goes and does another 

one, no matter how close together they are, that 

-- that that is a different type of person. 

And, you know, when Congress amended 

the statute in light of Petty, it responded 

specifically to Petty. It did not respond to 

other cases. I would direct this Court to the 

Ninth Circuit's decision in Wicks, which was 

multiple burglaries on one night under the prior 

statute, held to be different convictions. 

Congress didn't respond to that. Congress 

didn't seem to think there was a problem with 

that. Congress instead tailored its response to 

the Petty situation. 

And I think this brings up an 

important issue, which is even on Petitioner's 

side of the purported split, I think courts are 

drawing these distinctions very similarly to how 




we would do it here. So the Second Circuit's 

decision in Bordeaux, those were three robberies 

that occurred at 10, 10:15, and 10:55 p.m. The 

court held that those were separate occasions 

for purposes of the ACCA. 

So I think, to the extent that the -- 

the intuition is, you know, if it happens close 

in time, it just can't make a career criminal, I 

think because Congress didn't adopt language 

that required an intervening arrest or a certain 

amount of passage of time, no one's test really 

gets to that point. And the question is, you 

know, how can we do this in a clear and 

administrable way that distinguishes between the 

people who commit one violent felony and the 

people who commit one and then just keep going 

all the way up -- 

JUSTICE SOTOMAYOR: Counsel -- 

MS. ROSS: -- in this case, to ten? 

JUSTICE SOTOMAYOR: -- if all there 

was was Justice Breyer's hypothetical, but I'll 

adapt it to this case, if the only criminal 

activity by this defendant his entire life had 

been the burglary of this warehouse, the 

burglaries of this warehouse, and some time 




later, 20 years later, and I don't remember how 

many years separated these two crimes, he 

commits another criminal activity, do you think 

the layperson would believe that that was a 

career -- that this person was a career 

criminal? 

MS. ROSS: So -- 

JUSTICE SOTOMAYOR: Under what 

understanding of episode or occasion would a 

common person walk away and say, no, those were 

different occasions, and so, yes, even though 

that person has only had one episode, one 

evening of burglary, he's now a career offender? 

MS. ROSS: So, Justice Sotomayor -- 

JUSTICE SOTOMAYOR: That's the only 

background. 

MS. ROSS: -- Justice Sotomayor, I 

think there are sort of two questions in there, 

and if I could tease them out. I think the 

first is, you know, would you call this person a 

career offender? And I think we know that 

Congress, for all of the reasons I was just 

saying, thought of career in a different sense 

than a lifelong pursuit because, in response to 

Petty -- first of all, it was focused on Petty, 




and, second, in response to Petty, it didn't 

require intervening arrests, it didn't require 

intervening convictions, despite the fact that 

other statutes do have that type of language. 

JUSTICE SOTOMAYOR: Well, that's true, 

but intervening arrest or conviction can let 

somebody live a crime-free life for years, and 

still -- they're still a career offender because 

they can commit a crime a month or a crime -- 

even under your theory, a crime a year and they 

would be a career offender. They don't 

necessarily have to be arrested. 

MS. ROSS: That's correct, Your Honor, 

but Congress also did not include, you know, 

three years between convictions, five years 

between convictions, anything of that nature. 

And so I think we know that Congress meant 

career criminal in a different way and in the 

way that is, in fact, explained in the text with 

respect to the different occasions clause. 

I think the only clear way to 

understand the different occasions language -- 

and this goes to the second part of Your Honor's 

question -- is that an occasion is an event, a 

happening, or an occurrence. And if two events 




share one essential act, they are really one 

event. That is our position. 

JUSTICE SOTOMAYOR: But why -- why 

aren't -- 

JUSTICE KAGAN: Think about this -- 

this factual context, right? And let's say 

you're a newspaper reporter and you're trying to 

write a story about what happened here. 

I mean, would you ever say something 

like the facility storage units were burglarized 

on ten occasions? 

MS. ROSS: So, Your Honor, you know, I 

think you could say -- you might well say they 

broke through drywall on ten occasions. I think 

it just -- you know, there are ways to think 

about that. 

JUSTICE KAGAN: But -- but that's -- 

breaking through drywall is not the relevant 

act. The relevant act is a crime. 

MS. ROSS: So -- so actually, 

respectfully, Your Honor, I think breaking 

through drywall is the relevant act because you 

need under state law to have an unlawful entry 

into each of these separate facility -- excuse 

me, units -- 




JUSTICE KAGAN: Well, then, to Mr. 

Kedem's words it's just becoming very 

hypertechnical. In a normal sense, if you look 

at what this guy did, you would say he, you 

know, broke into the storage units on one 

occasion, whereas maybe if there had been ten 

separate -- separate meaning, you know, it 

happened on Monday and then it happened on 

Wednesday and then it happened on Friday -- then 

you would say the storage units were burglarized 

on ten occasions? 

MS. ROSS: So -- so I disagree, Your 

Honor. I mean, I think even taking my friend's 

definition of occasion as a different juncture 

of circumstances giving rise to a different 

criminal opportunity, you know, every time Mr. 

Wooden decided to go into a different unit to 

steal different items from different victims, I 

would think of those as a different occasion. 

But, you know, if the point is 

ultimately -- 

JUSTICE KAGAN: On one occasion, he 

burglarized one storage unit and a second 

occasion, he burglarized another storage unit, 

on a third occasion, he burglarized another 




storage unit. 

I mean, that's just not how anybody 

would talk about what happened here, is it? 

MS.ROSS: So--soIthinkit--it 

might well be, but if I could give you another 

example, Your Honor. I mean, I think if I said, 

you know, during my friend's argument he was 

asked difficult questions about line drawing, 

you know, on several different occasions or on 

several occasions different from one another. 

Even though those happened very close in time, 

that would be a perfectly natural use of 

language. 

By -- you know, at the same time, if 

Mr. Kedem stood up here during his rebuttal and 

said, you know, during her argument, Ms. Ross 

made -- committed errors on several different 

occasions, I would disagree but not because it's 

not a natural use of language. I think you can 

use occasion in different ways and what we're 

wondering about here or asking about here is how 

it is best used in the context of the ACCA. 

JUSTICE GORSUCH: So -- 

MS. ROSS: And I think in a statute -- 

I'm sorry. 


JUSTICE GORSUCH: So -- I'm sorry, Ms. Ross, I didn't mean to interrupt. Are you finished with your answer to Justice Kagan?
MS.ROSS: I--I--Ihadonemore sentence.
JUSTICE GORSUCH: Go for it, please.
MS. ROSS: All right. I was just going to say, in the context of the ACCA where we know Congress did not want as this Court said in Taylor, you know, if we thought that -- that sentencing judges were supposed to be looking through facts and circumstances, we would see some indication of that, I don't think that this reading of occasion that my friend is offering is a natural fit in this confection.
JUSTICE GORSUCH: Just I wanted to follow up on what Justice Kagan was pursuing, and Petty is still one occasion in the government's view today?
MS. ROSS: Yes.
JUSTICE GORSUCH: Okay. What if instead of in Petty, instead of robberies we had murders, and a guy breaks in and shoots three people in a row. Is that three separate occasions on the government's view?

MS. ROSS: Yes, each of those offenses requires a different use of force.
JUSTICE GORSUCH: So the --
MS. ROSS: Different --
JUSTICE GORSUCH: -- exact same --
so -- so a normal person wouldn't say that happened on one occasion, even though the three people were in the same room, but because they were murdered sequentially, that's not one occasion, that's three occasions?
MS. ROSS: I think in the context of this statute that is one occasion, those are three occasions.
JUSTICE GORSUCH: But if they commit robbery one after the other in the same room, that is one occasion.
MS. ROSS: No, Your Honor, because the robberies -- so it might be true and I think this is --
JUSTICE GORSUCH: Because the robbery starts as soon as he shows his weapon to everybody in the room and therefore it's one occasion when it's robbery --
MS. ROSS: Yeah.
JUSTICE GORSUCH: -- right, but three

occasions when it's murder?
MS. ROSS: I think that is simply a
consequence of the elements of robbery.
JUSTICE GORSUCH: Who thinks that, Ms.
Ross, in the real world?
MS. ROSS: So, Your Honor, again, I
think that there are multiple ways in which one could look at the way that we apply the ACCA --
JUSTICE GORSUCH: Ah.
MS. ROSS: -- and say --
JUSTICE GORSUCH: And if there are
multiple ways to look at it, why doesn't lenity play an important role here --
MS. ROSS: So --
JUSTICE GORUSCH: -- in determining whether the government should win or lose these cases?
If an ordinary person can't tell, if there are multiple ways to read the statute, if an occasion might mean one thing if it's murder and another thing if it's robbery, why doesn't the tie go to the presumptively free individual rather than the prosecutor, especially when we're dealing with mandatory minimums that take a 21-month sentence which was what a government



initially sought in this case, to a 15-year 

mandatory minimum when the government changed 

its mind? 

MS. ROSS: So there's a lot packed in 

thereandIwanttogettoallofit. 

JUSTICE GORSUCH: Sure it is. Go for 

it much. 

MS. ROSS: So -- so, I disagree. That 

I was not trying to say that, you know, occasion 

might mean in robbery and might mean burglary -- 

a different thing in murder. What I was trying 

to say -- 

JUSTICE GORSUCH: But you -- but they 

are in -- in the hypothetical. 


thought it was three -- three occasions with the 

murder and one with a robbery in the 

hypothetical I posed to you. 

MS. ROSS: Yes. 

JUSTICE GORSUCH: Okay. 

MS. ROSS: But in either case the 

reason why is because of the elements of the 

offense. So and I think it is entirely 

consistent to say that when you have -- just as 

MS. ROSS: No, Your Honor. JUSTICE GORSUCH: Or hold on. I



if you had the murders of three people by a 

bomb, that would be one occasion. 

What -- to -- to get to the lenity 

question, you know, I think that Congress was 

clear here, especially in the context that I was 

explaining, and I think, as you note, when we 

are applying a mandatory minimum, I think it's 

very important to have consistent results. 

And as the questions this morning 

suggest, I don't think that Petitioner's test is 

going to get you consistent results. Again, I 

don't know if Petitioner agrees with the cases 

on his side of the split but I'm not sure if we 

-- 

JUSTICE GORSUCH: But if we don't 

think yours leads to consistent results either, 

for example, because the hypothetical I gave 

you, then what? 

MS. ROSS: So, Justice Gorsuch, to be 

clear, I think in -- so there's sort of the 

theoretical and then there's the how is this 

going to play out in practice. 

JUSTICE GORSUCH: No, no, no, no, no. 

If we think that there's ambiguity either way, 

okay, if we think that there's going to be 


confusion either way, then what?
MS. ROSS: So I don't think there is
going to be confusion.
JUSTICE GORSUCH: I understand that,
counsel. I--I--I'vebeenthere. I--I-- I -- I've fought many a hypothetical too. But just suppose we think that. Then what?
MS. ROSS: So I think if you thought there was going to be ambiguity either way you would still need to look for the best reading of the statute. We think we've given that to you in context.
I think if you got to the point where all of your tools of statutory construction ran out and you found grievance ambiguity, then yes, there might be a lenity issue.
CHIEF JUSTICE ROBERTS: Counsel, has any of the lower courts adopted your
elements-based approach?
MS. ROSS: So, Your Honor, I don't
think they've talked about it in terms of the elements. But our results are consistent across the board, I think, with the vast majority --
CHIEF JUSTICE ROBERTS: Well, if their test was, in fact, based on the elements,



presumably they would have talked about 

elements, right? 

MS. ROSS: So I think the -- so, you 

know, I take the point. I don't want to fight 

that. You know, I do think that the difference 

is that these cases generally come up in these 

sequential robberies, sequential burglary 

contexts and there it is enough to say one was 

over before the next began in the same way that 

I started this morning. 

Without having to really go into, you 

know, what that tells you is that the elements 

were committed at different times and what that 

tells you is that they were all different acts 

that satisfied those elements. 

So I think we have sort of provided 

more theory as to why that common sense 

intuition as to one is over before the next 

began makes sense, but, no, I mean, they haven't 

exactly mapped it on to the elements in the same 

way that we would. 

You know, there are -- there are a 

couple of other things that I think it's 

important to get to here. You know, as -- as I 

think we've talked about a bunch this morning, 




we think Petitioner's test is not going to be 

very administrable in practice even if you get 

past the textual problems that we see with it 

and the contextual problems with -- that we see 

with it. 

You're going to have three problems. 

First, you're going to have judges looking for 

facts that are not often going to be in state 

court records, not just about how a crime was 

committed but about all of the surrounding facts 

and circumstances. 

Second, even if you had perfect 

information, you're going to then have to look 

at it at this granular level that, again, in the 

ACCA context for many of the reasons various 

justices have raised this morning, we don't 

permit. 

And third, even then, I do think 

you're going to have these very difficult 

line-drawing questions between, you know, the 

smoke break or the 10, 10:15, 10:55 robberies as 

opposed to what Mr. Wooden was convicted of 

doing here. 

I think what the law ultimately is 

asking about in the ACCA is were you held 




criminally responsible for discrete acts and 

that is the case here. It was not the case in 

Petty and so I think that our test is far more 

administrable in practice. 

You know, I think there are -- are a 

couple of other small things. You know, I think 

the crime boss hypothetical that Justice Kagan 

gave, I think, explains why we think that, you 

know, disparate timing is sufficient but not 

necessary. I do think that intertwined 

simultaneous offenses may be separate occasions. 

I think I took my friend to agree with that. 

Excuse me, non-intertwined 

simultaneous offenses may be separate occasions. 

I think I took my friend to agree with that. 

We also think that, you know, there 

was some suggestion I think in some of the 

questioning about accomplice liability. We -- 

again, because we would just focus on the 

elements of the offense, we would not look to 

that, that further complication. 

So I -- I'm happy to answer other 

questions. 

CHIEF JUSTICE ROBERTS: Justice 

Thomas? 




JUSTICE KAVANAUGH: Ms. Ross, I have 

one question. If we conclude that someone who 

goes down the street and burglarizes different 

houses and different cars going down the street, 

that that's all one occasion, if that's our 

common sense intuition to borrow your phrase, 

you would disagree with that, correct? 

MS. ROSS: Yes, I would. 

JUSTICE KAVANAUGH: Okay. Suppose 

that's what we think, though. Do you have a 

backup position on how you would articulate the 

test? 

MS. ROSS: So, Justice Kavanaugh, you 

know, I think once you go beyond, you know, 

the -- the timing of or -- or the acts that are 

required for particular elements to be 

completed, I think it gets very difficult to 

articulate a clear test as I think this morning 

has -- has sort of revealed. 

You know, I think, obviously, larger 

periods of time are clear, but I don't know that 

you can really get that from the text. So, you 

know, I apologize. I -- I think we've given you 

the best and the most administrable reading of 

the test, and I do think once you get to the, 




you know, if -- if you would sort of think that 

the guy down the street is a different occasion, 

I think it's very hard to understand why this 

would not also be a different occasion. 

JUSTICE KAVANAUGH: Thank you. 

CHIEF JUSTICE ROBERTS: Justice 

Thomas? Justice Breyer? Justice Sotomayor? 

No? Okay. Yes. 

JUSTICE GORSUCH: Quick question, 

Ms. Ross. If we do disagree with you and -- and 

you indicated you thought it got pretty 

complicated pretty quickly, do we run into 

vagueness issues? 

MS. ROSS: Sure, Your Honor. So, you 

know, we don't think that the statute ultimately 

would be vague. We hope what would happen is 

that the courts of appeals would continue to 

apply the types of factors that they have 

applied. 

We think we win under those factors, 

but I think, you know, if it were just a 

question of sort of tinkering with those 

factors, I don't think that there would be a 

constitutional vagueness problem. 

I do think to the extent that you have 


vagueness concerns, again, our approach, much as in the Sixth Amendment context, mitigates --
JUSTICE GORSUCH: Yeah, right.
MS. ROSS: -- those concerns, whereas I think Petitioner's --
JUSTICE GORSUCH: Right.
MS. ROSS: -- you know, as -- as I think my friend --
JUSTICE GORSUCH: I -- I --
MS. ROSS: -- it sort of sets up the
--
JUSTICE GORSUCH: -- understand. Counsel, I understand that point, but I have one more quick question. I don't want to monopolize the time here.
On -- on the confrontation clause question, again, if we do disagree with you and we think that -- that occasion is -- is broader than you suggest, does that raise Sixth Amendment concerns?
MS. ROSS: Justice Gorsuch, you know, I think it would again depend on exactly what the Court said. We think that we -- we could apply this in a way that is consistent with the Sixth Amendment. Again, I think it would just

require sort of looking at a narrower set of facts and documents.
JUSTICE GORSUCH: Thank you.
CHIEF JUSTICE ROBERTS: Justice Kavanaugh?
JUSTICE KAVANAUGH: No further questions, Chief.
CHIEF JUSTICE ROBERTS: Justice Barrett?
JUSTICE BARRETT: No.
CHIEF JUSTICE ROBERTS: Rebuttal?
REBUTTAL ARGUMENT OF ALLON KEDEM ON BEHALF OF THE PETITIONER
MR. KEDEM: With the greatest respect to my friends from the government, the essential elements test that you just heard Ms. Ross articulate strikes me as dramatically different, both from what the courts of appeals are doing right now, but also the way that the government described its own test in its brief.
First of all, Justice Kagan, I think the reason that you and I both read the
government's brief as saying the question is whether the final element was satisfied at the same moment comes from sentences like this, on

page 15 of the government's brief: "In common 

legal parlance, an offense is generally 

committed when all elements of the offense are 

established, regardless of whether the defendant 

continues to engage in criminal conduct." 

There were a number of such sentences, 

all of which seemed to point to the final 

element. 

The question -- a -- a test described 

as an essential elements test raises for me a 

number of questions. First of all, are there 

elements of an offense which are not essential? 

For instance, mens rea? 

Mr. Wooden and his associates may have 

formed the plan to break into the Ministorage 

facility and to steal what was -- what was ever 

there, and it was a single intention that they 

formed with respect to all of the different 

units. Does that count as the same or is that 

different? 

What about inchoate crimes? Attempts 

are named by statute in the Armed Career 

Criminal Act. They are -- they are called out 

by name. But you never complete the crime. You 

need a substantial step. Are -- are all of the 


acts that go toward the substantial step part of 

it? What about crimes where you are simply 

facilitating crimes by other people? These are 

all questions that are entirely unanswered. 

Now, with respect to the court of 

appeals' approach, my friend Ms. Ross said that 

she thinks that this is essentially what the 

courts of appeals are doing. That is not 

correct. 

Under the courts of appeals' test, 

what needs to happen is the beginning and end of 

one crime have to be separate from the beginning 

and end of the next crime, regardless of whether 

the same acts go into multiple crimes. 

And let me give you three examples 

that come from our brief. There was the case 

Barbour about the robbery outside the mini mart, 

and then some members of that robbery went 

inside to continue -- to -- to do a new robbery 

within the mini mart. So there are two separate 

robberies. 

But what the court of appeals said is 

because the robbery outside continues -- 

continued while the one inside the mini mart was 

going on, they overlapped and, therefore, it was 


the same occasion. But under the government's 

essential elements test, it would have come out 

differently. 

So too for the case of Tucker, where 

there were two people who burgled two separate 

storage units. But since the court didn't know 

whether they both walked into their storage 

units simultaneously or went from one together 

into the other, they didn't know whether the 

crimes overlapped and, therefore, there were two 

different -- it was one occasion. 

And, similarly, the Murphy case, 

involving a duplex, where some number of people 

stayed at the first unit while the others went 

to the second unit. That would have come out a 

different way under the government's test. 

The government's test would also mean 

that acts that are truly simultaneous can also 

sometimes be different occasions. For instance, 

if you and an associate decide that you will 

both walk into separate storage units at the 

same time, I think under the government's test, 

that is two different occasions; whereas the 

courts of appeals would treat those as the same. 

Now, my friend also raised the 




possibility that their test would be more 

consistent with the Sixth Amendment because it 

is just a focus on elements. But assuming that 

the government agrees that you are always 

responsible for the conduct of accomplices, 

since we don't know how many accomplices are 

involved in any crime, it is never elemental as 

far as we're aware and the government doesn't 

suggest otherwise, you will never know just 

based on the elements alone whether or not the 

crimes were committed at the same time. 

The one textual point that my friend 

from the government made, at least as far as I 

recall, is that if you were to break through ten 

different units, the drywall connecting them, 

you might describe that as ten different 

burglaries or you might say that you broke 

through the drywall on ten different occasions. 

But, again, she's loading the dice by phrasing 

it a different way than the statute. 

What the statute says is we know there 

were multiple offenses. Now we ask the question 

on how many occasions did that occur? Was it 

the same occasion or different occasions? 

So to put her example in the phrase of 




the statute, what you would say is you broke 

through the drywall ten times. Did that happen 

on the same occasion or on occasions different 

from one another? 

And our simple submission is you would 

never describe that as ten occasions different 

from one another. 

And, finally, let's talk about 

Congress's goals. It is unclear what the 

government's essential elements test has to do 

with any goal that Congress might have cared 

about. And one would think that if this was the 

test all along, someone at some point would have 

mentioned it. But, obviously, Congress -- no 

one in Congress said so, no court has ever 

articulated it this way, and the government 

didn't even articulate it this way, at least as 

far as we're concerned, until oral argument. 

If there are no further questions. 

CHIEF JUSTICE ROBERTS: Thank you, 

counsel.