Matthew Descamps was sentenced to 262 months in prison after the Ninth Circuit found that he had committed his third violent felony, in violation of the Armed Career Criminal Act (ACCA). The contested violent felony was a 1978 conviction for burglary of a California grocery store. Under the California burglary statute, one can be convicted of burglary without an explicit finding that entry into the burgled premises was itself unlawful. The element of unlawful entry is required under the generic burglary statute described in the ACCA. The Ninth Circuit found the “unlawful entry” element to be necessarily satisfied by the plea bargain agreed to by Descamps, thus subjecting him to the mandatory fifteen-year minimum prison sentence required under the ACCA. How the Supreme Court decides this case will determine how sentencing courts use factual assertions surrounding a prior conviction in situations where a violent crime as defined under the ACCA contains elements absent from the crime for which the defendant was convicted.
1. Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.
2. Whether is it time for this Court to overrule Almandez-Torres v. United States, 523 U.S. 224 (1998), apply Apprendi v. New Jersey, 530 U.S. 224 (2000), and require an Indictment and trial on the issue of application of the Armed Career Criminal Act.
3. Whether the Ninth Circuit's ruling in the instant case was in derogation of the requirements in Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).
1. Whether the Ninth Circuit can find a missing element to be satisfied by using a modified categorical approach.
2. Whether imposition of the Armed Career Criminal Act should require a separate indictment and trial.
3. Whether the Ninth Circuit’s application of the modified categorical approach was a deviation from Taylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005).
Petitioner Matthew Descamps was arrested on March 25, 2005 in Stevens County, Washington. See Brief for Respondent, United States at 2–3. Officers from the Stevens County Sheriff’s Department responded after receiving an emergency call that a handgun had been fired. See id. at 2. Eyewitnesses later told police that a man had fired the gun into the radiator of a truck in which another man was sitting. See id. at 3. Upon arriving at the scene, the officers saw Descamps driving away and the officers pursued him to a bus he used as a residence. See id. Inside the bus, the officers found a handgun containing one fired round. See id. During interrogation, Descamps admitted that he had drawn and fired the gun to scare the man in the truck, who owed Descamps $700 for methamphetamines. See id.
Descamps was indicted in the Eastern District of Washington and convicted by a jury for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). See id. at 2–3. He was sentenced to 262 months in prison under the Armed Career Criminal Act of 1984 (“ACCA”), 18 U.S.C. § 924(e), which mandates longer sentences for offenders with three or more convictions for violent crimes. See id. at 3–4. Descamps had prior convictions for a California first-degree robbery, a California burglary, and a Washington felony for harassment with intent to kill. See id.
In the sentencing proceedings, Descamps argued that he should not be sentenced under the ACCA because his California burglary conviction did not meet the definition of burglary for the purposes of the ACCA. See Brief for Petitioner, Matthew Descamps at 2–3. Specifically, in Taylor v. United States, the Supreme Court defined “burglary” as a crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” 495 U.S. 575, 599 (1990). Descamps was convicted, however, under California Penal Code § 459, which does not include the element of unlawful entry. See id. at 3.
The district court applied the “modified categorical approach” and found that the burglary conviction met the ACCA definition of a violent felony. See Brief for Respondent at 6. The court based its finding on the information from the burglary case, which described Descamps as unlawfully entering a building, and on the plea colloquy, which described Descamps’s actions as “breaking and entering.” See id. On appeal, the Court of Appeals for the Ninth Circuit affirmed the finding of the district court. 466 F. App’x 563 (2012).
The central issue in this case is how a court should implement the so-called modified categorical approach set forth by the Supreme Court in Taylor v. United States for sentencing under the Armed Career Criminal Act of 1984 (“ACCA”). Petitioner Matthew Descamps argues that factual assertions that do not need to be proven as elements of the charged crime should not be considered, both for reasons of reliability and fairness. See Brief for Petitioner, Matthew Descamps at 33. The United States urges that such concerns are unfounded as a practical matter. See Brief for Respondent, United States at 33–34. It argues for a factual inquiry into the underlying facts of a charged offense, arguing that to do otherwise might arbitrarily treat similar defendants differently. See id. at 25.
Reliability & Fairness
Descamps argues that the Ninth Circuit’s approach is fundamentally unfair because the sentencing court will rely on facts that the defendant had no incentive to dispute at trial since they were not part of the crime charged and therefore had no legal relevance. See Brief for Petitioner at 33–34. Since only the elements that are part of the charged crime need to be proven to obtain a conviction, the defendant will likely only contest facts relevant to those elements. See id. at 34. Moreover, the defendant may have a disincentive to argue nonessential facts because those facts ultimately do not matter. See id. at 35. In addition, according to Descamps, it is only with respect to these facts that a defendant has constitutional and procedural safeguards at trial. See id. at 34.Meanwhile, Descamps argues, other facts that are “collateral” to the offense charged are really nothing more than allegations and do not have any of the guarantees of reliability inherent in facts that comprise an element of the offense. See id.
The United States responds that concerns about unreliable factual assertions being used in sentencing under the ACCA are misplaced. See Brief for Respondent at 33. Instead, it argues, the modified categorical approach takes into account only those facts found by the jury or admitted to by the defendant, and will exclude “superfluous admissions.” See id. at 33–34. This makes it highly unlikely, in the United States’ view, that the sentencing court will consider incorrect factual assertions. See id. at 34. Moreover, the United States dismisses as “theoretical” the concern that there is no incentive for the defendant to dispute assertions that are not elements of the crime. See id. It argues that there is no evidence that such incentives or lack thereof will actually impact a sentencing outcome in practice. See id.
According to the United States, adopting an elements-only approach would undermine Congress’s purpose of treating similarly situated federal offenders the same, and would lead to arbitrary disparities in sentencing. See id. at 25–26.
Descamps argues that the Ninth Circuit’s approach could disrupt the plea-bargaining process, particularly the reliance of defendants on the terms of the bargains they strike with prosecutors. See Brief for Petitioner at 35-36. As amici National Association of Criminal Defense Lawyers (“NADCL”) and National Association of Federal Defenders (“NAFD”) point out, prosecutors and defendants often reach agreements in which a defendant pleads guilty to a lesser offense, resulting in benefits to both sides. See Brief of Amici Curiae NADCL and NAFD in Support of Petitioner at 32. Abandoning an elements-only approach, according to the NADCL and NAFD, would undermine the finality of these agreements. See id. at 33. In their view, this would be both unfair to defendants and disrespectful of prosecutors’ discretion in enforcing the criminal laws of sovereign states. See id. Moreover, asserts Descamps, a criminal defendant may actually have a disincentive to dispute such collateral facts for fear that contesting them may undermine his attempts to obtain a favorable plea bargain or to remain in the good graces of the court. See Brief for Petitioner at 34–35.
The United States responds that, in pleading guilty, a defendant waives some important constitutional rights, particularly regarding “erroneous deprivation of liberty.” Brief for Respondent at 34. This waiver, in its view, alleviates concerns about the reliability of the admissions made in the plea-bargaining process. See id. Moreover, the United States points out that the assistance of counsel and the participation in a plea colloquy ensure that this waiver is made with an understanding of all the consequences, further guaranteeing the reliability of any admissions. See id.
In sum, this case will have implications for the way a federal court sentencing a defendant under the ACCA may use factual assertions surrounding a prior conviction. In situations where a violent crime as defined under the ACCA contains elements absent from the crime for which the defendant was convicted, this case will determine the extent to which a sentencing court may inquire into collateral facts that might have some bearing on the missing elements. In particular, it may affect information gleaned from admissions made as part of plea bargains and plea colloquies.
This case deals with whether a court looking at a state statute that defines a felony more broadly than the generic crime defined in the Armed Career Criminal Act (ACCA) can find that a “missing element” of the a felony has been satisfied using a modified categorical approach. See Brief for Petitioner, Matthew Descamps at 33. This question is important because the expanded use of the modified categorical approach could bring many broadly worded state statutes within the purview of the ACCA, which calls for minimum sentences of fifteen years for persons with three violent felony convictions. See id. at 28.
Formal versus Modified Categorical Approaches
Descamps argues that generic burglary under the ACCA has the two elements of (1) “unlawful and unprivileged entry into or remaining in, a building or structure,” (2) “with intent to commit a crime.” See Brief for Petitioner, Matthew Descamps at 9. Descamps asserts that by focusing on the elements, the United States Supreme Court interpreted the ACCA to embody a “formal categorical approach,” which looked only at the statutory definitions of the person’s prior offenses, as opposed to considering the facts underlying those convictions. See id. at 10. Moreover, Descamps argues that the Court specifically noted in Taylor v. United States, 495 U.S. 575 (1990), that nowhere in the ACCA’s legislative history was there any evidence of Congress intending courts to undertake factfinding missions regarding the defendant’s prior convictions. See id. at 12-13.
However, the United States argues that in certain situations, the Court has also permitted lower courts to adopt a “modified categorical approach.” See Brief for Respondent, United States at 15The Court specifically found that if the person’s prior conviction required that all of the elements of the generic conviction be satisfied in order to convict, the prior conviction would satisfy the elements of the generic crime for ACCA purposes. See id. at 15. In making such a determination, the court is limited to the records of the convicting court in order to ensure the accuracy of the court’s finding. See id. at 16.
Application of the Modified Categorical Approach
There is substantial disagreement between the parties as to the situations where the modified categorical approach should be applied. Petitioner Descamps argues that such an approach is appropriate only in cases where a single statutory provision includes differing sets of elements for conviction under the statute. See Brief for Petitioner at 16–18. Descamps posits that using a modified categorical approach to look into the facts of one’s conviction would lead to conviction for a crime qualifying under the ACCA in some cases but not in others. See id. at 18. As evidence of this possibility, Descamps point to the Ninth Circuit’s ruling in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011), where a similarly situated defendant’s conviction under California’s burglary statute was not found to be “burglary” under the ACCA, in comparison to Descamps’ own situation where his conviction under the same statute was found to satisfy the ACCA’s definition of generic burglary. See id. at 18. Descamps further posits that instead of only helping “determine which statutory phrase was the basis for the conviction,” the Ninth Circuit’s expanded use of the modified categorical approach would also include courts deciding “whether conduct satisfies the requirements for an uncharged offense.” See id. at 19.
Respondent United States takes a different view of the situation, suggesting that while the modified categorical approach has been previously applied in cases where there are differing sets of elements under the statute, the Court has never limited its use to only those situations. See Brief for Respondent at 17. The United States argues that the Court’s prior cases have been “illustrative rather than prescriptive” on the question of when the modified categorical approach should be applied. See id. at 19. The United States points out that the California statute at issue covers multiple offenses, some of which would satisfy the elements of generic burglary; therefore, the Ninth Circuit’s use of a modified categorical approach was appropriate to determine what elements for which Descamps was found guilty. See id. at 8. Limiting the use of the modified categorical approach to only those situations with differing elements, the United States argues, would exclude many state burglary statutes from qualifying as violent felonies under the ACCA, even when those convicted under the statutes have the violent history that Congress was addressing with the ACCA. See id. at 24. In essence, the United States suggests that limiting the use of the modified categorical approach as Descamps is describing would cut against the ACCA’s primary purpose. See id. at 23. The United States also asserts that Descamps fails to take into account the limitations in Shepard v. United States, 544 U.S. 13 (2005), which only allows subsequent sentencing courts to examine the conviction papers or plea agreements to determine what the basis for the conviction was. See id. at 27. Additionally, the United States charges that the limitations suggested by Descamps would lead to the modified categorical approach being dismissed altogether, which would counter the purpose of the ACCA. See id.
Satisfying Missing Elements
Descamps also argues that that the claim that the California statute is broader than the generic burglary statute does not take into account the fact that the California statute lacks the “unlawful or unprivileged entry” element, which is found in the generic burglary definition under the ACCA. See Brief for Petitioner at 26. In Descamps view, this means that unless it is rewritten, conviction under the California burglary statute can never qualify as a “violent felony” under the ACCA. See id.
The United States counters that the Ninth Circuit found the “missing element” to be necessarily satisfied by the satisfaction of the elements listed in the statute. See Brief for Respondent at 23. In their brief, the United States talks about the practice of relying on extratextual sources (e.g., common law traditions) while reading statutes, pointing out that these interpretations announce what the legislature “might otherwise have stated explicitly.” See id. at 22–23. Relying on California state court opinions, the United States notes that to be convicted of burglary in California, one must necessarily make an unlawful entry because the California burglary statute requires an “invasion of a possessory right in a building,” “by a person who has no right to be in the building.” See id. at 23. The United States argues that conviction under this broader element still satisfies the elements of generic burglary, as required by the ACCA, because the element of unlawfulness in the California burglary statute excludes those buildings to which the defendant has a “possessory right.” See id. at 41. The United States insists that one cannot be convicted of burglary in California by entering a building they own or have a right to be in, such as their home. See id.
In this case, the Supreme Court will determine whether a court can use a modified categorical approach when determining if a state statute satisfies the elements of the generic statute described in the ACCA. Petitioner Descamps argues that the Supreme Court’s decisions in Taylor v. United States and its progeny show that Congress intended the modified categorical approach to be limited to situations where there are differing sets of elements under the statute and only some of the elements satisfy the ACCA’s generic statute definition. Respondent United States counters that Taylor and its progeny have been “illustrative rather than prescriptive” when suggesting when the modified categorical approach should be utilized. The outcome of this case will affect how courts determine if a prior conviction qualifies as a violent offense for sentencing purposes under the ACCA.
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