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

Post-Descamps World

Paresh Patel, Federal Public Defender, D.Md.

Descamps v. United States, 133 S. Ct. 2276 (June 20, 2013)

Clarified when and how to use themodified 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

4. Prediction for next Supreme Court case on modified categorical approach

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 (not applicable to guidelines):

a. non-elemental facts are not necessarily found by jury; b. in pleas, jury trial not waived with respect to non-

elemental 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 2Determine the element 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: ExampleState 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) entry (2) into a building (3) with intent to commit a crime.

Subsection (a) has all three elements of an ACCA generic burglary, but subsection (b) is missing unlawful entry element. Thus, is not ACCA generic burglary, and also does not fit within ACCA force clause or residual 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 sentencingrecidivist 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 element so that jury is not required to find one phrase to the exclusion of the other.

4. They are a term of art with single definition.


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 seriousbodily injury, intent to commit a felony, disparity in age, physicalcondition or sex, indecent liberties, purposeful infliction of shame,resistance of lawful authorities, and others.”

Example continued on next page


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 categoricalapproach does not apply.

Because “aggravation” element is overbroad and fails to matchdefinition of 1) force clause or 2) residual clause, state offense neverqualifies as an ACCA violent felony.

United States v. Hemingway, 734 F.3d 323 (4th Cir. 2013)


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 categoricalapproach does not apply.

Because the state force element is overbroad and fails to match the ACCA 1) force clause or 2) residual clause, it never qualifies as a “violent felony.”


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 find one of thesephrases to the exclusion of the other; rather both terms go the juryas a single indivisible element. Thus, the phrases are alternativemeans for satisfying a single element, and modified categorical approach does not apply.



Example continued: Two terms are single indivisible elementbecause they go to jury in one clump.

Because the Maryland element fails to match the ACCA “violent felony” definition either under 1) the force clause or 2) the residual clause, the state offense never qualifies as a “violent felony.”

United States v. Royal, 731 F.3d 333 (4th Cir. 2013)


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. Further, offensive touching does not satisfy residual clause. Thus, state offense never qualifies as a “violentfelony.”

United States v. Herrera, 2008 WL 2698644 (10th 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.

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


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 non- qualifying elements.



Example: A state assault statute has alternative elements, requiring either an intentional “offensive touching,” or “the intentional infliction of serious physical injury.”

The modified categorical approach applies because “offensive touching” does not qualify as an ACCA “violent felony” under the force clause or residual clause. But “infliction of serious physical injury” does under the residual clause.




Example continued:

The charging document – the only existing Shepard document – charges both subsections: “offensive touching” and “intentional infliction of serious physical injury.”

Federal sentencing court must assume that defendant pled guilty to “offensive touching,” which does not qualify as an ACCA “violent felony.”


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.



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) entry (2) into a building (3) with intent to commit a crime.



Example continued: Subsection (a) qualifies as an ACCA “generic burglary,” but subsection (b) does not because it is missing “unlawful entry” element. Further, subsection (b) does not qualify as a “violent felony” under the force or residual 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 with intent to steal a Rolex watch.

These facts conform to both subsections. Thus, federal sentencing court must assume defendant pled guilty to non-qualifying subsection.


Facts admitted by defendant in plea colloquy conform only with qualifying elements, but charging document doesn’t

specify elements and plea court makes no mention of elements: not enough

Example: A state assault statute has alternative elements.

Subsection (a) requires intentional use of “violent” force

Subsection (b) requires reckless unwanted touching


Facts admitted by defendant in plea colloquy conform only with qualifying elements, but charging document doesn’t

specify elements and plea court makes no mention of elements: not enough

Example continued: Subsection (a) qualifies under ACCA force and residual clause but subsection (b) does not because it is missing intentional mens rea element required under force or residual clause.

Thus, modified categorical approach applies.

However, subsection and elements to which defendant pled guilty are not specified in the charging document or the plea hearing. Nonetheless, defendant in plea colloquy agreed with government factual proffer that he intentionally stabbed someone.

These facts conform only to elements that constitute a “violent felony.” Nonetheless, no mention of elements anywhere so court must assume defendant pled guilty to non-qualifying subsection because it was not necessary for defendant to admit to facts to satisfy elements of offense.


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 (4th Cir. 2010),

United States v. Savage, 542 F.3d 959 (2d Cir. 2008)



Example: A state assault offense with alternative elements

requiring either an “offensive physical contact” or “intentional infliction of serious physical injury”

The modified categorical approach applies. “Offensive

physical contact” does not qualify as “violent felony”

under ACCA force clause or residual clause, but “intentional infliction of serious physical injury”

does under residual clause.




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

hit victim with bat and caused brain injury 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

failsto qualify as “violent felony.”


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.


Defendant pled guilty to lesser non-qualifying offense: not enough

Example: Defendant charged with agg. assault, which requires “intentional infliction of serious bodily injury” (which has elements equating to ACCA “violent felony” under residual 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” or “residual 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, __F.3d __, 2014 WL 539754 (8th Cir. 2014); See also “Be careful” examples in Step 4.

Predictions: Next Supreme Court case on modified categorical approach.

Do alternative statutory phrases always trigger the modified categorical

approach, even when they are just means rather than elements?

Documents

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