BLOG BULLETS:

• Recent cases make clear that the burden is on the government to show prior offenses were “committed on occasions different from one another” for purposes of the Armed Career Criminal Act enhancement.
• The cases also make clear that the only evidence the government can use to show this are those records which can be considered under the “modified categorical approach” that’s used to determine whether a prior conviction qualifies as a “violent felony” or “serious drug offense.”
• We can also argue that the other limit Descamps places on the modified categorical approach – that it can be used only to identify elements, on which unanimity is required – also applies to the “committed on occasions different from one another” requirement.

NOW THE BLOG:

I left off in my last post with the hopeful comment that there’s one more angle. It’s actually a silver lining that can be found in some of the more recent of the cases rejecting the Apprendiargument that I suggested on the ACCA “committed on occasions different from one another” “element” (if I can use that word). It’s a line of recent cases that, first, make clear the burden is on the government to show the prior offenses were “committed on occasions different from one another,” and, second, hold the only evidence the government can use is the limited set of records that can be used for categorizing an offense as a “violent felony” or “serious drug offense” underTaylor v. United States, 495 U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005). See United States v. Dantzler, 771 F.3d 137, 145 & n.3 (2d Cir. 2014) (collecting cases);Kirkland v. United States, 687 F.3d 878 (7th Cir. 2012) (also collecting cases).

This is certainly going to be helpful in some cases, as illustrated by both Dantzler and Kirkland. In both of those cases, the charging document from the prior case alleged multiple offenses that were committed on the same date. See Dantzler, 771 F.2d at 140, 145; Kirkland, 687 F.3d at 887. And the courts found there was insufficient evidence to establish the offenses were “committed on occasions different from one another,” in one instance because there was no document other than the charging document and the charging document was insufficiently clear, see Kirkland, 687 F.3d at 887, and in the other instance because the additional documents the district court relied upon “were not of the type specifically condoned byTaylor or Shepard,” Dantzler, 771 F.2d at 146. This suggests that, at least in the case of offenses which were committed on the same date, the government may have trouble carrying its burden on the “committed on occasions different from one another” element.

There may be further arguments to make based on Descamps, moreover. Consider one of the points made in one of my posts onDescamps soon after it came out – “The Rest of My Own Little Supreme Court Update,” accessible through the July 2013 link at the right. The modified categorical approach allows a court to use court records for a very limited purpose. They don’t get used to identify what the defendant did, but get used solely to identify which alternative in a divisible statute the defendant was convicted of. And the alternative must be an “element” on which there has to be jury unanimity. (See my prior posts on this, titled “More on Descamps,” in the September 2013 link at the right, and “The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps,” in the October 2014 link at the right.) Can we use this to argue that whatever fact the government wants to use – be it the date of the offense or whatever – has to be an element on which there had to be jury unanimity? That may start running into the Grisel holding – discussed in the last post – that records showing different dates are sufficient, but (1) did Griselconsider this other aspect of the issue and (2) is Grisel undercut by the intervening decision in Descamps? There may be some food for thought there. (And if you have any other food to offer for other thoughts, feel free to offer it through the comments feature at the bottom of this blog.)

Consider also some of the language from Descamps quoted in the last post. The Court pointed out that facts other than elements of the offense (such as the exact date of an offense?) “may be downright wrong,” id. at 2289, in part because they didn’t matter at the time.

A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense – and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.

Id. Can we use this to limit the use to which the Taylor andShepard documents are put?

In any event, these are some thoughts on using Descamps. They’re not as well-formed as some, but I offer them for what they’re worth. This might be a good place for readers to share some thoughts through the comment feature at the bottom of the blog, if any of you’d would like to do that.