1. Justices Breyer, Kennedy, and Roberts: For the government. Washington State’s 10-year maximum term for repeat offenders qualifies Rodriguez's crime for sentence enhancement under §924(e)(2)(B)(i) of the ACCA. Famous last words, but I’m fairly confident in this particular prediction. In their majority opinion in Begay, these three Justices placed significant weight on the ACCA’s purpose of punishing recidivists (even noting that “Career Criminals” is in the statute’s title!) and made a point of distinguishing the, in their view, accidental-drunk-driver (whatever the merits of that characterization) from the “violent,” “purposeful,” and “aggressive” type of career criminal whom they believe the ACCA is designed to deter/punish. One suspects that repeat drug traffickers will fall on the opposite side of the divide from drunk drivers in these three Justices’ estimation. Moreover, the comments made by each of these Justices at oral argument point tellingly in favor of the government’s position. Justice Kennedy, for instance, expressed the view that a repeat drug trafficker may well cause greater injury to the State —and therefore be said to commit a more serious offense than a one-time offender— by, for example, creating a network of distributors that will cost the state greater resources to eradicate. Justice Breyer similarly argued that one who commits a drug offense for the second, third, or fourth (or more) time behaves more culpably than a first-time offender. And Chief Justice Roberts observed that it would make sense for Congress, in crafting a statute designed to address the “very serious problem of recidivism,” to consider an offense more serious when committed by a repeat offender. He also seemed to buy into the government’s common sense/absurd result argument that it is a “verbal embarrassment” to say that the maximum term for an offense is 5 years but then to allow some defendants to be sentenced to 10 years for the offense.

2. Justice Scalia: For the defendant. Justice Scalia likely will conclude that it is at best unclear whether the ACCA enhancement applies to a state drug offense that carries a maximum term of 5 years for a first-time offender, but a maximum term of 10 years for repeat offenders. Given this ambiguity, he is likely to invoke the Rule of Lenity —perhaps his favorite substantive canon of construction— to argue that the benefit of the doubt should go to the defendant. Indeed, Justice Scalia pointedly defended the Rule of Lenity as applicable to sentencing statutes at oral argument. (This was after Chief Justice Roberts raised the classic counterargument that the Rule applies only in cases where the criminality/unlawfulness of the defendant’s conduct is at issue (when the conduct is malum prohibitum), but not when the unlawful nature of the defendant’s conduct is obvious (it is malum in se) and the only question is how severely the law at issue punishes such conduct.) Justice Scalia also likely will emphasize the fact that the text of the ACCA enhancement refers to a “serious drug offense” not to a “serious drug offender.” As he astutely noted at oral argument, the fact that a defendant has committed multiple drug offenses does not make his subsequent offense(s) “more serious offenses”; it only makes the defendant himself a “more culpable offender."

3. Justices Alito and Souter. For the defendant, I think. My guess is that these two text-focused Justices will join Justice Scalia’s construction of the statute based on the facts that (1) the statutory text hangs the enhancement on the seriousness of the drug “offense” rather than of the drug “offender”; and (2) the government has conceded, at least in the context of this case, that the defendant’s recidivism is not an element of the offense itself. (Note: This last issue about whether recidivism effectively is an element of the offense seemed to trouble Justice Alito at oral argument, so his vote is a little difficult to predict).

4. Justices Ginsburg and Stevens: For the defendant. Heck if I can predict these two Justices’ reasoning. If past practice is any indication, I think they silently will join an opinion written by Justice Scalia, without providing any specific insight into their individual lines of thinking.

5. Justice Thomas: A toss-up. Justice Thomas may well conclude that this is a situation in which the ACCA enhancement cannot constitutionally be applied unless the recidivism of the defendant is treated as an element of the crime and submitted to the jury for evaluation. If he goes this way, then he will vote with the Scalia-Alito-Souter-Ginsburg-Stevens majority in favor of the defendant.

So, hazardous though this kind of speculation can be, I am predicting a 5-4 or 6-3 outcome in favor of the defendant in this case. Of course, if I am wrong about Justice Alito, the case could flip and the government could win.