BLOG BULLETS:

• A mere listing of alternatives isn’t enough to make a statute divisible; the alternatives have to create different crimes.
• The listing of alternatives has to be exhaustive, not just illustrative.
• Divisibility isn’t enough if the item in the list that applies doesn’t satisfy the generic federal definition at issue.

NOW THE BLOG:

This week I thought I’d just offer a short little post with some nuances of the Descamps divisibility approach that I’ve talked about in the last two posts. It’s part summary of the last two posts and part new.

First, perhaps the most basic point. A mere listing of alternatives isn’t what makes a statute divisible under Descamps. The alternatives have to, at least “effectively,” create “several different . . . crimes.” Id., 133 S. Ct. at 2286.

Second, critically examine the list and consider whether it might be non-exhaustive and just illustrative. If it’s not exhaustive and just illustrative, it’s no better than no list at all. Think of it this way: “gun, knife, baton, and any other weapon” isn’t any more focused than just “any other weapon.” See the Fourth and Eleventh Circuit cases I discussed in my post two weeks ago.

Third – and this is a new point – think about what I like to call “divisibility within divisibility,” or a “list within a list.” Maybe an initial listing in a statute is a list of alternative elements creating different crimes, but that only gets you down one level to the crime created by the item in the list that applies to your case. If even that narrower item doesn’t categorically satisfy the generic federal definition at issue, you have to apply the divisibility analysis separately to it.

A good example of this requirement can be found in United States v. Cabrera-Umanzor, 728 F.3d 347 (4th Cir. 2013). In that case, the court considered a child abuse statute that applied to both physical abuse and sexual abuse. Id. at 351. The court held that the statute was what it called “generally divisible,” in that it defined the “abuse” element in the alternative as either physical abuse or sexual abuse. Id. at 352 (emphasis in original). But, the court explained:

General divisibility, however, is not enough; a statute is divisible for purposes of applying the modified categorical approach only if at least one of the categories into which the statute may be divided constitutes, by its elements, a crime of violence.

Id. (emphasis in original). The court then held that this requirement was not satisfied by the statute before it in that case because the sexual abuse category, which is what the defendant there had been convicted of, did not satisfy any of the generic federal definitions within the guidelines “crime of violence” definition. See id. at 352-53.

So remember to consider not just divisibility of the basic statute but divisibility of its layers as well. There may be a multitude of alternative means (pun intended once again) to argue your case.