BLOG BULLETS:

• Remember that just a listing of alternatives isn’t what makes a statute “divisible” under Descamps.
• The list has to be a list of alternative elements that creates different offenses, not a list of alternative means of committing a single offense.
• A recent Fourth Circuit case affirmed this reading ofDescamps.

NOW THE BLOG:

In a post I put up three months after Descamps v. United States, 133 S. Ct. 2276 (2013), came out, I made the point that a statute isn’t “divisible” under Descamps just because it lists a number of alternatives separated by the word “or.” (See “More on Descamps” in the September 2013 link at the right.) I pointed out language in Descamps that suggests the need to inquire into whether the list is a list of “alternative elements,” which “effectively creates ‘several different crimes,’” Descamps, 133 S. Ct. at 2285 (quoting Nijhawan v. Holder, 557 U.S. 29, 41 (2009)), or whether the list is instead a list of “alternative means” of committing a single crime. I also pointed out a footnote addressing – and accepting – the dissent’s concern that statutes listing mere alternative means would not be treated as divisible. The conclusion that follows from this language and analysis is that a statute isn’t divisible simply because it lists alternatives. The list has to be a list of alternative elements creating separate crimes, not just a list of alternative means of committing a single crime.

A recent Fourth Circuit case that got discussed in a presentation by local DFPD’s Jim Locklin and Kurt Mayer at our recent CJA appellate panel training confirms this reading of Descamps. The case is United States v. Royal, 731 F.3d 333 (4th Cir. 2013). The statute before the court in that case was a Maryland battery statute that case law held could be satisfied by either “offensive physical contact,” which would not qualify as a “violent felony” under the Armed Career Criminal Act, see Johnson v. United States, 559 U.S. 133 (2010), or infliction of “physical harm,” which would qualify as a “violent felony” under the Armed Career Criminal Act. Royal, 731 F.3d at 341.

The court held that the mere fact that there were two alternatives was not enough to make the statute divisible, however. What mattered beyond this was whether the alternatives were alternative “elements” or alternative “means.” The court looked to how the Maryland courts treated the offense and noted that jurors were not even required to unanimously agree on which of the two alternatives had been proven. The court concluded:

Rather than alternative elements, then, “offensive physical contact” and “physical harm” are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because “[t]he dispute here does not concern any list of alternative elements,” the modified [categorical] approach “has no role to play.” Descamps, 133 S. Ct. at 2285.

Royal, 731 F.3d at 341 (emphasis in original).

So here’s some authority to cite beyond just my blog (which I’m afraid isn’t formally citeable authority). If even the Fourth Circuit takes this position, certainly the Ninth should.