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SCOTUS reaffirms (yet again) that the categorical approach governs ACCA cases

Richard Mathis v. United States, USSC No. 15-6092, 2016 WL 343440, 579 U.S. ___ (June 23, 2016), reversing United States v. Mathis, 786 F.3d 1068 (8th Cir. 2015); Scotusblog page (includes links to briefs and commentary)

In this decision the Court, by a 5-to-3 vote, reaffirms its long-standing rule that the “categorical approach,” which focuses on the elements of an offense, is to be used in determining whether a prior conviction enhances a federal offender’s sentence under the Armed Career Criminal Act. It also rejects the Government’s argument for an exception to that approach when the defendant is convicted under a statute that lists multiple, alternative factual means of satisfying one of the elements of the offense. While the decision obviously affects federal criminal practice, it may also affect a recent decision of the Wisconsin Supreme Court.

Under the ACCA, a defendant with prior “violent felony” convictions faces a 15-year minimum mandatory sentence. Since Taylor v. United States, 495 U.S. 575 (1990), up through Descamps v. United States, 133 2276 (2013), the Court has held that to determine whether a prior conviction is a violent felony, courts must use a “categorical approach,” which requires a comparison of the elements of the crime of conviction with the elements of the “generic” version of the offense (i.e., the offense as commonly understood). A prior conviction qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The comparison is limited to the elements; courts may not ask whether the defendant’s conduct falls within the definition of the generic crime. (Slip op. at 1-5, 8-9). As Taylor stated, it is impermissible for “a particular crime [to] sometimes count towards enhancement and sometimes not, depending on the facts of the case.” 495 U.S. at 601. Accordingly, a judge may look only to “the elements of the [offense], not to the facts of [the] defendant’s conduct.” Id. “That simple point became a mantra in our subsequent ACCA decisions.” (Slip op. at 8).

Mathis’s federal sentence was enhanced under the ACCA based on prior convictions for burglary in Iowa. Iowa’s statutes defines burglary as unlawful entry into an “occupied structure” with intent to commit a felony, assault or theft, and defines “occupied structure” as a building, structure, or “land, water, or air vehicle.” Iowa Code §§ 702.12 and 713.1. Under Iowa case law, the list of occupied structures defines alternative ways of violating the basic “locational” element of the burglary, not elements defining separate crimes of burglary. (Slip op. at 5-6). But for purposes of the ACCA, the generic crime of “burglary” is an unlawful entry into a building or other structure with intent to commit a crime. (Slip op. at 2). Comparing elements as required by the categorical approach, Iowa’s burglary statute covers “a greater swath of conduct” than generic burglary because it covers more than buildings. (Slip op. at 5-7). “Under our precedents, that undisputed disparity resolves this case.” (Slip op. at 7). An Iowa burglary conviction doesn’t count under the ACCA.

The Eighth Circuit came to a different conclusion. It thought (incorrectly) that the list of “occupied structures” under the Iowa statute established different elements, so it invoked the Court’s “modified” categorical approach, which applies to convictions under statutes that create multiple crimes with alternative elements, and where one of the crimes matches the generic offense. In that situation, a court may do a limited inquiry into the facts of the prior conviction to determine whether the defendant was convicted of the crime matching the generic offense. (Slip op. at 3-4, 6). Further, the Eighth Circuit thought the modified categorical approach still applied even if the list of structures didn’t establish different elements, but only different ways of committing burglary. Because Mathis’s burglary convictions were based on entry to a building, he committed the generic offense and the conviction counts under the ACCA. (Slip op. at 6).

The Court rejects this conclusion. The modified categorical approach is not a license to canvas the facts of the prior conviction; instead, it is an aid to determining the elements of the crime of conviction so that those elements can be compared to the generic offense, as required by the categorical approach:

“[T]he only [use of [the modified categorical] approach] we have ever allowed,” we stated a few Terms ago, is to determine “which element[s] played a part in the defendant’s conviction.” Descamps, 570 U.S., at ––––, –––– (slip op., at 5, 8) (emphasis added); see Taylor, 495 U.S., at 602 (noting that the modified approach may be employed only to determine whether “a jury necessarily had to find” each element of generic burglary). In other words, the modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque. See Descamps, 570 U.S., at –––– (slip op., at 8)…. It is not to be repurposed as a technique for discovering whether a defendant’s prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.

(Slip op. at 12). Because the list of locations in Iowa’s statute is about alternate factual means for committing the offense, an inquiry into the location of a particular conviction is by definition an inquiry into the facts of the offense, which are irrelevant under the categorical approach and can’t be used to enhance a sentence. (Slip op. at 7-9, 11-12).

Two dissents (Breyer, joined by Ginsburg; and Alito writing separately) argue, among other things, that the distinction between an element of an offense and a means to commit the offense is not always so clear as it happens to be with the Iowa statute, which unlike most states has precedent on point. (Breyer dissent at 4-11; Alito dissent at 4-6). The majority responds it will usually be clear based on authoritative sources of state law; that if it’s not the charging documents themselves could clarify the matter; and that if it’s not clear after recourse to these methods, then the conviction can’t be used to enhance the sentence because the sentencing judge will not be able to satisfy the demand for certainty when determining whether the prior conviction counts under the ACCA. (Slip op. at 16-18).

This decision resolves a circuit split (slip op. at 7 & n.1). The Seventh Circuit hadn’t taken one side or another in that split, so the decision doesn’t overrule or affirm any precedent in our circuit.

Even though the decision is about a federal enhancer statute, we will soon see whether it will have some effect on Wisconsin law. Wisconsin hasn’t explicitly adopted the “categorical” and “modified categorical” approach in interpreting state statutes that use prior convictions for enhancers. Last term, however, in State v. Guarnero, 2015 WI 72, 363 Wis. 2d 857, 867 N.W.2d 400, the supreme court claimed it was “mirroring” the modified categorical approach in deciding a case involving the enhancer under § 961.41(3g)(c). For reasons explained at length in our post on the decision, SCOW fundamentally misunderstood and misapplied the law, and as a result violated the Sixth Amendment by allowing the sentencing judge, rather than a jury, determine the facts on which a sentence enhancement is based. Guarnero’s cert petition is pending, and was likely being held in abeyance pending this decision, which provides additional reason to conclude that SCOW’s decision in Guarnero’s case was completely wrongheaded. The Court should act soon on Guarnero’s petition now that Mathis’s case has been decided, and we’ll post an update as soon as we learn what the Court does. UPDATE: Guarnero’s petition was denied on June 27, 2016.

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