≡ Menu

U.S. Supreme Court reaffirms use of “categorical approach” in Armed Career Criminal Act cases

Matthew Robert Descamps v. United States, USSC No. 11-9540, 6/20/13

United States Supreme Court decision, reversing United States v. Descamps, No. 08-30013 (9th Cir. Jan. 10, 2012) (unpublished)

The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those crimes, courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.

We have previously approved a variant of this method—labeled (not very inventively) the “modified categorical approach”—when a prior conviction is for violating a so-called “divisible statute.” That kind of statute sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.

This case presents the question whether sentencing courts may also consult those additional documents when a defendant was convicted under an “indivisible” statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case’s underlying facts, that the defendant’s prior conviction qualifies as an ACCA predicate even though the elements of the crime fail to satisfy our categorical test. Because that result would contravene our prior decisions and the principles underlying them, we hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements. (Slip op. at 1-2).

Descamps was convicted in federal court of being a felon in possession of a firearm. The government sought an enhanced sentence under the ACCA based on three prior felony convictions, one of which was a California burglary. Unlike the “generic” crime of burglary, burglary under California law does not require an unlawful entry; it could, for instance, apply to a shoplifter who enters a store during business hours with intent to steal. (Slip op. at 2-3). The federal sentencing judge concluded that the burglary counted under the ACCA because, based on the plea transcript from Descamps’s state case, he determined Descamps had admitted the elements of the “generic” offense when he did not contest the prosecutor description of the crime as “breaking and entering” a store. (Slip op. at 3-4). The Ninth Circuit affirmed, holding the “modified categorical approach” permits a review of the facts supporting the conviction. (Slip op. at 4).

Not so, the Court rules. Under the cases starting with Taylor v. United States, 495 U.S. 575 (1990), that explain the categorical approach and its “modified” counterpart, the modified approach serves a limited function: “It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction.” (Slip op. at 5). The modified approach doesn’t apply here because California law defines burglary “not alternatively, but only more broadly than the generic offense.” (Id.). That means the case “involves a simple discrepancy between generic burglary and the crime established [under California law].” (Slip op. at 9). Because California could convict Descamps of burglary without having to prove he broke and entered, the conviction cannot serve as an ACCA predicate, and whether Descamps did break and enter (or admitted breaking and entering) makes no difference:

Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not. In that circumstance, a court may look to the additional documents to determine which of the statutory offenses (generic or non-generic) formed the basis of the defendant’s conviction. But here no uncertainty of that kind exists, and so the categorical approach needs no help from its modified partner. We know Descamps’ crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over. (Slip op. at 9-10).

Though it finds the case easy to resolve based on its prior cases, the Court goes on to thoroughly criticize the Ninth Circuit decision for “subvert[ing]” precedent and “conflicting with each of the rationales supporting the categorical approach,” which include avoiding the Sixth Amendment concerns that arise from sentencing judges making findings of fact that properly belong to juries under Apprendi v. New Jersey, 530 U.S. 466 (2000), and the “‘daunting’ difficulties and inequities” attendant to examining old records of prior convictions. (Slip op. at 12-16).

A well-written opinion that makes for a good read, even if you are not dealing (or even familiar) with the issue. As to immediate impact to practitioners in federal and state courts in Wisconsin, not much: The Seventh Circuit is already practicing the approach reaffirmed in this decision, United States v. Ellis, 622 F.3d 784, 797-800 (7th Cir. 2010), and United States v. Woods, 576 F.3d 400, 403-10 (7th Cir. 2009), and Wisconsin law has no statutory counterpart to the ACCA to which this opinion applies. (For another good read, the always-interesting Michael O’Hear has a bracing post on this case that also criticizes the unjust, inefficient “quagmire” that is the ACCA.)

As for broader implications, the Apprendi jury-trial right does not apply to sentence enhancements based, like the ACCA, on prior criminal convictions, Almendarez-Torres v. United States, 523 U.S. 224 (1998), but as noted in Justice Thomas’s concurrence, the decision limits what a judge can consider to decide if a prior conviction triggers an enhanced sentence. Justice Thomas’s concurrence also makes it clear he, for one, still thinks Almendaraz-Torres should be overturned; does the majority’s reiteration of the Sixth Amendment rationale for the categorical rule, and the Court’s decision earlier this week in Alleyne v. United States (fact that increases a minimum mandatory sentence must be found by jury), suggest an opening to challenge the prior conviction exception to Apprendi? Stay tuned.

{ 0 comments… add one }

Leave a Comment