Post-Descamps World. Paresh Patel, Federal Public Defender, D.Md. October 8, 2015

Post-Descamps World Paresh Patel, Federal Public Defender, D.Md. October 8, 2015

Descamps v. United States, 133 S. Ct. 2276 (June 20, 2013) Clarified when and how to use the modified categorical framework

Overview 1. The world as it existed before Descamps: Mass confusion about application of the modified categorical approach 2. Descamps clarifies and narrows application of elements-driven modified categorical approach: Issue, Facts, Three Main Principles, and Rationale 3. Descamps in practice: Six-step analysis

Pre-Descamps World After Taylor v. United States, 495 U.S. 575 (1990) and progeny, mass confusion about when and how modified categorical approach applies.

DESCAMPS: SPECIFICS At issue: whether prior conviction for California burglary statute qualified as generic burglary violent felony under ACCA. Generic burglary requires: 1) unprivileged or unlawful entry or remaining in 2) a building or structure 3) with intent to commit a crime. Elements of California statute: Entry into building with intent to commit a crime. Missing generic burglary element of unlawful entry : fact that plea colloquy reflected that defendant actually broke and entered into grocery store did not matter. California burglary can never qualify as a generic burglary.

DESCAMPS V. UNITED STATES, 133 S. Ct. 2276 (2013) MAIN RULES Taylor modified categorical approach: only applies if statute is divisible with alternative elements some which match violent felony/crime of violence offense/serious drug offense/controlled substance offense definition and some which do not. Modified categorical approach only applies to determine which of the elements the defendant was convicted of, not to determine underlying conduct/facts. If prior offense of conviction is missing element necessary to constitute a violent felony/crime of violence/serious drug offense/controlled substance offense, the prior offense can never qualify as recidivist sentencing predicate.

DESCAMPS: Overbroad Element = Missing Element Overbroad element that fails to satisfy violent felony/ crime of violence/ serious drug offense/ controlled substance definition is same as missing element.

Reasoning behind elements-driven modified categorical approach Text/Leg History of ACCA enhancement only permit recidivist enhancements based on convictions/elements - not based on conduct in each individual case. Prevent impermissible factfinding under the Sixth Amendment: a. non-elemental facts are not necessarily found by jury; b. in pleas, jury trial not waived with respect to nonelemental facts Unfairness : a. No incentive to contest non-elemental, superfluous facts in guilty plea colloquy; b. deprives def. of benefits of neg. plea deals.

Descamps in practice: Six-Step analysis

Step 1 Determine the definition of the applicable federal recidivist sentencing enhancement predicate.

Step 1: Example ACCA violent felony = 1. Force Clause: Has an element the use, attempted use, or threatened use of physical force against a person. Physical force means violent force, i.e., force capable of causing physical injury or pain. 2. Enumerated offenses: burglary, arson, extortion, use of explosives (determined by generic definition) 3. Residual clause: Presents serious risk of physical injury at similar level to enumerated offenses + purposeful, violent, and aggressive.

Step 2 Determine the elements of prior offense of conviction by looking at: face of the statute, jury instructions, state law, federal law interpreting state offense

Step 3 Determine whether the elements of the prior offense always match or are narrower than the applicable federal recidivist sentencing predicate definition. If so, end of inquiry. Modified categorical approach does not apply, and prior offense is always a federal recidivist predicate.

Step 3: Example State burglary statute requires proof of three elements: (1) unlawful entry, (2) into a building, (3) with intent to commit a crime. Matches ACCA generic burglary definition. Always qualifies as an ACCA violent felony. End of inquiry.

Step 4: The prior offense sometimes qualifies as a federal recidivist sentencing predicate if it has alternative elements some which match or are narrower than the federal recidivist definition and some which do not. If the statute is divisible in this way, go the modified categorical approach. If not, skip to step 6.

Step 4: Example State burglary statute has two subsections with alternative elements: Subsection (a) requires (1) unlawful entry (2) into a building (3) with intent to commit a crime. Subsection (b) requires (1) unlawful entry (2) into a vehicle (3) with intent to commit a crime. Subsection (a) has all three elements of an ACCA generic burglary, but subsection (b) is missing the building element. Thus, it is not ACCA generic burglary, and also does not fit within ACCA force clause. Subsection (a) qualifies as a violent felony while subsection (b) does not. Go to modified categorical approach.

Step 4: BE CAREFUL

Alternative elements do not always mean modified categorical approach applies Modified categorical approach only applies if one set of alternative elements matches violent felony/crime of violence/serious drug offense/controlled substance offense definition and one set does not. If none of alternative elements match federal sentencing recidivist enhancement definition, then inquiry ends.

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Sometimes, despite the fact that there may be different statutory phrases listed in the disjunctive, they are not elements and do not trigger modified categorical approach because phrases are either: 1. Non-exhaustive list of examples of different factual means not elements 2. Exhaustive list of factual means not elements 3. They go the jury as a single unitary element so that jury is not required to unanimously find one phrase to the exclusion of the other. 4. They are a term of art with single definition.

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example: Phrases are non-exhaustive list of factual means: South Carolina conviction for assault and battery of a high and aggravated nature requires proof of two elements: (1) unlawful act of violent injury (which only requires offensive touching) and (2) circumstances of aggravation. Under South Carolina case law, aggravation includes use of serious bodily injury, intent to commit a felony, disparity in age, physical condition or sex, indecent liberties, purposeful infliction of shame, resistance of lawful authorities, and others. Example continued on next page

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example continued: Non-exhaustive list of factual means: Aggravation list under South Carolina offense = merely illustrative examples of factual means for satisfying aggravation element. Thus, aggravation element is indivisible and modified categorical approach does not apply. Because aggravation element is overbroad and fails to match definition of the force clause it never qualifies as an ACCA violent felony. United States v. Hemingway, 734 F.3d 323 (4 th Cir. 2013); see also United States v. Howard, 742 F.3d 1334 (11 th Cir. 2014) (different phrases in burglary statute were illustrative examples of factual means not alternative elements).

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example: Phrases are exhaustive list of factual means: A state statute prohibits use of force against another by stabbing, shooting, or squirting water. Although the statute limits the list of ways of satisfying the force element, assume that state case law holds that stabbing, shooting, and squirting water are just factual means for satisfying the force element. Thus, state force element is indivisible and modified categorical approach does not apply. Because the state force element is overbroad and fails to match the ACCA force clause, it never qualifies as a violent felony.

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example: Two terms are single indivisible element because they go to jury in one clump. Maryland second degree assault prohibits offensive physical contact with or physical harm to another. Under Maryland law, the jury is not required to unanimously find one of these phrases to the exclusion of the other; rather both terms go the jury as a single indivisible element. Thus, the phrases are alternative means for satisfying a single element, and modified categorical approach does not apply. Example continued on next page

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example continued: Two terms are single indivisible element because they go to jury in one clump. Because the Maryland element fails to match the ACCA violent felony definition under the force clause, the state offense never qualifies as a violent felony. United States v. Royal, 731 F.3d 333 (4 th Cir. 2013) See also Omargharib v. Holder, 775 F.3d 192 (4 th Cir. 2014);Rendon v. Holder, 764 F.3d 1077 (9 th Cir. 2014); United States v. Fuertes, F.3d, 2015 WL 4910113 (4 th Cir. 2015) (all holding that disjunctively worded statute was indivisible because under state law, jury did not have to unanimously find one word vs. the other; two words were part of single unitary element).

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Second Example: Two terms are single indivisible element because they go to jury in one clump. State assault statute prohibits reckless or intentional infliction of strong physical force capable of causing bodily injury or pain. Under state law, the jury is not required to unanimously find one of these phrases to the exclusion of the other; rather both terms go the jury as a single indivisible element. Thus, the phrases are alternative means for satisfying a single element, and modified categorical approach does not apply. Example continued on next page

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example continued: Two terms are single indivisible element because they go to jury in one clump. Because the reckless or intentional element fails to match the ACCA violent felony definition under the force clause, the state offense never qualifies as a violent felony. See United States v. Marcia-Acosta, 780 F.3d 1244 (9 th Cir. 2015)

Disjunctive phrases do not always equal alternative elements: Looks are Deceiving. Example: Term of Art Single Indivisible Element: California battery statue prohibits any willful and unlawful use of force or violence. However, force or violence merely means offensive touching. Therefore, modified categorical approach does not apply. And offensive touching does not equal violent force necessary to satisfy ACCA force clause. Thus, state offense never qualifies as a violent felony. United States v. Herrera, 2008 WL 2698644 (10 th Cir. 2008)

Beware: Descamps footnote Footnote 2: Says that whatever a statute lists (whether elements or means), the modified categorical approach applies. In conflict with the body of the opinion, which says there must be alternative elements to trigger the modified categorical approach. See United States v. Royal, 731 F.3d 333 (4 th Cir. 2013) (holding that statute is only divisible when alternative elements not means exist); Omargharib v. Holder, 775 F.3d 192 (4 th Cir. 2014) (same); Rendon v. Holder,764 F.3d 1077 (9 th Cir. 2014) (same); United States v. Marcia-Acosta, 780 F.3d 1244 (9 th Cir. 2015) (same). Beware: United States v. Trent, 767 F.3d 1046 (10 th Cir. 2014) (holding in dicta that statute is divisible when it has alternative means or elements); United States v. Mathis, 786 F.3d 1068 (8 th Cir. 2015) (adopting means test without any analysis).

Step 5: If the prior offense has alternative elements some which match federal recidivist definition and some which do not review the Taylor/Shepard documents (charging document, plea agreement, plea colloquy transcript, jury instructions, bench trial findings of court, judgment) to determine which of the alternative elements the defendant was necessarily convicted of, not to determine how the defendant factually committed the offense.

Step 5: BE CAREFUL Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Both sets of elements alleged in Taylor/Shepard documents: not enough If the charging document, jury instructions, or plea colloquy, without limitation, alleges both qualifying federal recidivist predicate elements and non-qualifying predicate elements, this is not enough to establish that defendant necessarily pled to qualifying predicate elements. Court must assume that defendant pled to nonqualifying elements, i.e. the most innocent elements or least of the elements. See Johnson v. United States, 559 U.S. 133 (2010); Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Both sets of elements alleged in Taylor/Shepard documents: not enough Example: A state assault statute has alternative subsections with alternative elements. Subsection (a) requires 1) unlawful entry 2) into a building 3) with intent to commit a crime. Subsection (b) requires 1) unlawful entry 2) into a dwelling 3) with intent to commit a crime. The modified categorical approach applies because subsection (a) is an ACCA generic burglary type of violent felony, but subsection (b) is not a generic burglary because it is missing the building element because a dwelling does not have to be a building. Further, it is not a violent felony under the force clause. Example continued on next page

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Both sets of elements alleged in Taylor/Shepard documents: not enough Example continued: The charging document the only existing Shepard document charges both subsections. Federal sentencing court must assume that defendant pled guilty to subsection (b) the non-qualifying subsection. This is true even if charging document charged both subsections in the conjunctive. See United States v. Vann, 660 F.3d 771 (4 th Cir. 2011) (en banc); Young v. Holder, 697 F.3d 976 (9 th Cir. 2012)

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Facts admitted by defendant in plea colloquy conform with both sets of elements: not enough If the charging document, plea, or judgment fail to specify the set of elements to which the defendant pled guilty, but the plea colloquy reflects that the defendant admitted to facts conforming to both sets of elements those that match federal recidivist sentencing predicate definition and those that don t then court must assume defendant pled to non-qualifying elements.

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Facts admitted by defendant in plea colloquy conform with both sets of elements: not enough Example: A state burglary statute has two subsections with alternative elements: Subsection (a) requires (1) unlawful entry (2) into building (3) with intent to commit a crime. Subsection (b) requires (1) possession of burglar s tools (2) with intent to commit a crime. Example continued on next page

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate See United States v. Marcia-Acosta, 780 F.3d 1244 (9 th Cir. 2015) Facts admitted by defendant in plea colloquy conform with both sets of elements: not enough Example continued: Subsection (a) qualifies as an ACCA generic burglary, but subsection (b) does not because it is missing unlawful entry and building element. Further, subsection (b) does not qualify as a violent felony under the force clause. Thus, modified categorical approach applies. However, subsection to which defendant pled guilty is not specified in the charging document or the plea hearing. Nonetheless, defendant in plea colloquy admitted to breaking into someone s house while carrying burglar s tools with intent to steal a Rolex watch. These facts conform to both subsections. But the non-qualifying subsection is not eliminated; therefore, federal sentencing court must assume defendant pled guilty to non-qualifying subsection.

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant entered an Alford plea: not enough If the charging document fails to specify the subset of elements to which a defendant pled guilty, and the defendant enters an Alford plea, federal sentencing court cannot rely on facts in the plea colloquy to determine which of the alternative elements was the basis of the guilty plea. Court must assume that defendant pled guilty to elements that do not qualify as recidivist sentencing enhancement. United States v. Alston, 611 F.3d 219 (4 th Cir. 2010); United States v. Savage, 542 F.3d 959 (2d Cir. 2008); United States v. Vidal, 504 F.3D 1072 (9 th Cir. 2007) (en banc);

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant entered an Alford plea: not enough Example: A state assault offense with alternative elements requiring either an offensive physical contact or shooting another with a firearm. The modified categorical approach applies. Offensive physical contact does not qualify as violent felony under ACCA force clause, but shooting another with a firearm does. Example continued on next page

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant entered an Alford plea: not enough Example continued: Charging document does not clarify the subset of elements, but defendant enters Alford plea to state assault charge. The state proffers that defendant shot someone with a firearm as basis for plea. Can t rely on factual proffer because Alford plea. Must assume defendant pled guilty to offensive physical contact and prior conviction fails to qualify as violent felony.

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant did not assent to factual basis in the plea: not enough If the charging document does not clarify subset of elements, and the defendant s attorney, rather than the defendant himself, assents to the factual basis for the plea, then facts in plea cannot be considered at all in determining whether defendant pled to qualifying elements, and federal sentencing court must assume defendant pled to nonqualifying subset of elements. United States v. Sahagun-Gallegos, 782 F.3d 1094 (9 th Cir. 2015)

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant pled guilty to lesser non-qualifying offense: not enough If the charging document alleges elements that match the federal recidivist predicate definition, but the defendant pleads guilty to a lesser included offense that does not have elements matching the federal recidivist predicate definition, then prior conviction does not qualify as a federal recidivist predicate.

Taylor/Shepard-approved documents MUST necessarily establish qualifying predicate Defendant pled guilty to lesser non-qualifying offense: not enough Example: Defendant charged with agg. assault that requires intentional stabbing (which has elements equating to ACCA violent felony under force clause) but pleads guilty to simple assault, which requires offensive physical contact (which is lesser included offense that does not have elements equating to ACCA violent felony ). Prior conviction fails to qualify as ACCA violent felony.

Step 6 If prior offense does not fit within the always or sometimes categories in steps 3, 4, and 5, then that means prior offense will never qualify as a federal recidivist predicate. Prior offense has no subset of elements that conform with federal recidivist predicate definition.

Step 6: Example Assume juvenile is adjudicated under Illinois armed robbery statute that criminalizes robbery by someone who carries on or about his or her person, or is otherwise armed with a dangerous weapon. A prior juvenile adjudication only qualifies as an ACCA violent felony if the prior offense satisfies force clause + use or carrying of a firearm, knife, or destructive device. The Illinois offense never qualifies as violent felony under ACCA because it is missing ACCA firearm, knife, or destructive device element. Illinois dangerous weapon element is broader than ACCA firearm, knife or destructive device requirement. And it is indivisible because although the Illinois statute can be factually violated by use of a firearm, knife, or destructive device, these are factual means - not elements. See United States v. Bankhead, 746 F.3d 323 (8 th Cir. 2014); See also Be careful examples in Step 4.