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Recidivist Enhancements after Descamps June 2014

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Recidivist Enhancements after Descamps June 2014. Brett G. Sweitzer Assistant Federal Defender Chief of Appeals Federal Community Defender Office, E.D. Pa. When Does this Come Up?. Mos t common situations: •∫ 2K2.1:crime of violence ∫ 4B1.1controlled substance offense - PowerPoint PPT Presentation

Text of Recidivist Enhancements after Descamps June 2014

Supreme Court and 3rd Circuit Appellate Update

Recidivist Enhancements after DescampsJune 2014Brett G. SweitzerAssistant Federal DefenderChief of AppealsFederal Community Defender Office, E.D. Pa.When Does this Come Up?Most common situations:

2K2.1:crime of violence 4B1.1controlled substance offense

2L1.2:drug trafficking offensecrime of violencefirearms offensealien smuggling offenseaggravated felony

When Does this Come Up?Most common situations:

18 U.S.C. 924(e):violent felony 4B1.4serious drug offense[priors do not time-out]

8 U.S.C. 1326(b):aggravated felony

Quick ReviewWas defendant convicted of ___________?focus is on the statute of convictionNOT

Did defendant commit ____________?focus is on the conduct

Admissions to qualifying conduct are irrelevant (even in PSRs but dont do it)! Of course he did it is irrelevant

Quick ReviewFormal Categorical Approachlook to statutory definition, not factselements and nature of statute of convictionis statute broader than generic crime in enhancement provision? (least culpable)--if yes: never a predicate--if no: always a predicateQuick ReviewModified Categorical Approach


NOT whenever the statute is overbroad--MCA is not about mining the Shepard documents for evidence of conduct or basis of conviction--Rather, its about identifying the statute of convictionQuick ReviewModified Categorical Approach


ONLY when:(1)statute is divisible into alternative elements and judgment has general referenceOR(2)enhancement provision invites further inquiry

Quick ReviewModified Categorical Approach WHAT IS IT?

look at Shepard/Taylor documents to see if defendant was necessarily convicted of generic crime in enhancement provision

NOT to see what defendant actually didQuick ReviewModified Categorical ApproachWHAT ARE THE SHEPARD DOCS?


(1)charging document--information/indictment--maybe criminal complaint, but not applications and the likePLUS(2)jury instructions

Quick ReviewModified Categorical ApproachWHAT ARE THE SHEPARD DOCS?


(1)charging documentPLUS(2)plea agreement/colloquyOR(3)other comparable judicial records of sufficient reliability

Quick ReviewModified Categorical ApproachWHAT ARE THE SHEPARD DOCS?

The Comparable Records Loophole:---limited to judicial docs---never a certification requirement--- DP standard dockets/sent records ONLY for SOC, NOT FACTS!

Step OneIdentify the Enhancement Provision

has as an element . . . enumerated offensesMUST DETERMINE GENERIC VERSION-- CL, MPC, majority state law, and analogous federal law residual provisions-- comparative analysis (Begay/Sykes)Common Step-One MistakesBurglary = Burglary: Failure to Go Generic


generic statutory rape: under 16 y/o; 4-yr delta

Thats risky: Failure to compare (purposeful/viol)EXAMPLE: 4B1.2 COV reckless/negl simple assault

Step TwoIdentify the ELEMENTS of the statute of conviction, and determine if offense is broader than defined/generic offense

identify SOC from conviction record or through modified categorical approach if general reference to divisible statute is there a way to violate statute that would not violate generic offense? (least culpable)-- may be obvious from text of statute or may need to look at state case law (Remember: use the version of the stat in effect when prior committed!)

Common Step-Two Mistakes Using modified categorical approach to determine what defendant did, rather than to identify SOC

Misreading statute/statutory scheme


failing to review expansive stat language failing to look at definitional sections failing to look at immigration cases and other jurisdictionsHolding of Descamps133 S. Ct. 2276 (2013) MCA applies ONLY to divisible statutes, and ONLY to determine which division of the statute defendant was convicted under

MCA DOES NOT apply to overbroad statutes, or to those missing an element of the defined/generic offense altogether MCA is tool for implementing CA, not invitation to consider whatever facts are in Shepard documents Impact of DescampsGovt: None! Third Cir always limited MCA to divisible statutes

Actually: New definition of divisibleOld Divisibility: divisible = written in the disjunctive (list or outline form)-- PA burglarys building or occupied structure-- PA simple assaults intentional, knowing, or reckless bodily injuryImpact of DescampsActually: New definition of divisible

New Divisibility: divisible = separable into alternative elements

-- Determined as a matter of the substantive law of the jurisdiction of conviction

-- Disjunctive statutes NOT divisible if the things listed are simply alternative means of satisfying a single element, rather than alternative elements

-- TEST: whether juror unanimity requiredMeans or Elements?How to tell the difference

(1)Look at charging document-- if charges whole list, they are means and MCA does not apply (Descamps FN 2)-- doesnt matter what D admits(2)If charging document narrows list, look at governing substantive law regarding submission to jury and juror unanimityPost-Descamps Cases Third Circuit is AdriftThe Good: US v. Jones, 740 F.3d 127 (3d Cir. 2014)-- recognizes MCA use may need to be narrowed in Third Cir Rojas v. Atty Gen., 728 F.3d 203 (3d Cir. 2013)-- MCA does not fill factual gaps Bautista v. Atty Gen., 744 F.3d 54 (3d Cir. 2014)-- no alt elements in disjunctive NY arson

Post-Descamps Cases Third Circuit is AdriftThe Bad: US v. Marrero, 743 F.3d 389 (3d Cir. 2014)-- PA simple assault divisible because disjunctive-- looks to plea colloquy for facts-- PFR en banc dend; PFC forthcoming

The Neutral: US v. Abbott, 748 F.3d 154 (3d Cir. 2014)-- PA PWID divisible because Apprendi element and charging document specified cocaine

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