Even the Supreme Court Agrees With Us!

July 26, 2016
By Hanging Out with Carl Gunn


  • In its recent decision in Mathis v. United States, 136 S. Ct. 2243 (2016), the Supreme Court has agreed with the Ninth Circuit that a list of alternatives makes a statute divisible only if the alternatives are elements between which a jury has to unanimously choose.
  • Mathis reiterates the categorical approach’s focus on elements, the reasons for that focus, and that the modified categorical approach is a tool to be used only when several different offenses are combined in one statute.
  • Mathis also suggests three inquiries to make in determining whether a statutory list is a list of elements or mere means: first, state law on the question; second, the statutory text and what it suggests; and, third, but only if state law fails to provide the answers and only to answer the question of whether the list is a list of elements, a limited “peek” at the court records.



A number of past posts have discussed or mentioned the Ninth Circuit’s interpretation of Descamps v. United States, 133 S. Ct. 2276 (2013), in Rendon v. Holder, 764 F.3d 1077 (9th Cir. 2014).  As you hopefully all recall, Descamps held that courts can use the modified categorical approach to select between a list of statutory alternatives to categorize a prior conviction for use as an enhancement only if the statute under which the defendant was convicted is “divisible.”  Rendon then held divisibility requires a list of alternatives which are elements on which a jury has to unanimously agree, not a list of alternatives which are mere “alternative means” on which a jury doesn’t have to agree.  (For the original post on Rendon, see “The Ninth Circuit Agrees with Us on What Divisibility Means Under Descamps” in the October 2014 link at the right.)

My most recent posts on Rendon included caveats about a case named Mathis v. United States in which the Supreme Court granted a petition for writ of certiorari to decide between the Rendon interpretation of Descamps and an Eighth Circuit interpretation holding a list of alternatives sufficient even without a jury unanimity requirement.  (See “More on Those Great New Categorical Approach Cases,” and “Another Great Categorical Approach/Divisibility Case” in the February 2016 and April 2016 links at the right.)  I suggested there was hope the Rendon view would prevail, but that we’d have to see what the Court decided.

Well, as you might gather from the title of this post, I have some great news.  The Supreme Court issued its opinion in Mathis at the end of last month and it disagreed with the Eighth Circuit and agreed with the Ninth Circuit position in RendonSee Mathis v. United States, 136 S. Ct. 2243 (2016).  The opinion starts with a great summary of the categorical approach’s focus on elements, the limits on use of the “modified categorical approach,” and the reasons for the limits.  It reminds us of what it describes as a “mantra,” which it has repeated with “perhaps downright tedium,” id. at 2251-52 – that a sentencing judge deciding whether a prior conviction qualifies as a “violent felony” under the Armed Career Criminal Act “may look only to ‘the elements of the [offense], not to the facts of [the] defendant’s conduct.”  Id. at 2251 (quoting Taylor v. United States, 495 U.S. 575, 601 (1990)).  The opinion also describes what “elements” are:  “At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.”  Mathis, 136 S. Ct. at 2248 (citations omitted).  The opinion then distinguishes a statutory list which “merely specifies diverse means of satisfying a single element of a single crime – or otherwise said, spells out various factual ways of committing some component of the offense – [where] a jury need not find (or a defendant admit) any particular item.”  Id. at 2249.

Finally, the opinion reminds us of the three main reasons for the categorical approach and the strict limits on when the modified categorical approach can be used.  “First, . . . text favors that approach,” by referring to three prior “convictions” rather than three prior “crimes.”  Id. at 2252.  “Second, a construction . . . allowing a sentencing judge to go any further would raise serious Sixth Amendment concerns,” because the judge would be “making a disputed determination about ‘what the defendant and state judge must have understood as the factual basis of the prior plea’ or ‘what the jury in a prior trial must have accepted as the theory of the crime.’”  Id. (quoting Shepard v. United States, 544 U.S. 13, 25 (2005).  “And, third, an elements-focus avoids unfairness to defendants,” by not holding them responsible for allegations they “have no incentive to contest” and “may have good reason not to.”  Mathis, 136 S. Ct. at 2253 (quoting Descamps, 133 S. Ct. at 2289).  The opinion then concludes this general explanation by explaining that “[t]hose three reasons stay as strong as ever when a statute, instead of merely laying out a crime’s elements, lists alternative means of fulfilling one (or more) of them.”  Mathis, 136 S. Ct. at 2253.  In sum, the key isn’t whether there’s a finite list of criminal acts in the statute; the key is whether a jury has to unanimously agree on a specific one of the acts beyond a reasonable doubt.

The Mathis opinion also suggests three inquiries a court may make in determining whether a list of alternatives is a list of elements or a list of mere alternative means.  The suggested inquiries are similar to the “three-step test” applied in the case of Ramirez v. Lynch, 810 F.3d 1127 (9th Cir. 2016), which I discussed in the Rendon-related post last April.  (See the “Another Great Categorical Approach/Divisibility Case” post in the April 2016 link.)  The first inquiry the Mathis opinion suggests – which was dispositive there – is an inquiry into what state law says about whether the list of alternatives is a list of elements or a list of mere alternative means.  See Mathis, 136 S. Ct. at 2256.  The second inquiry the opinion suggests is into the statutory text and/or structure; it then gives examples of (a) statutory alternatives which carry different punishments and so must be elements under Apprendi v. New Jersey, 530 U.S. 466 (2000), (b) a statutory list of only “illustrative examples,” which would indicate the list is a list of just alternative means, Mathis, 136 S. Ct. at 2256 (quoting United States v. Howard, 742 F.3d 1334, 1348 (11th Cir. 2014)) (for a discussion of this Howard case, see the post entitled, “More More on What’s a Divisible Statute Under Descamps: An Application of Last Week’s Post to the Offense of Burglary,” in the April 2014 link at the right), and (c) a statute “identify[ing] which things must be charged (and so must be elements) and which need not be (and so must be means),” Mathis, 136 S. Ct. at 2256.

The third inquiry the opinion suggests, quoting a dissent from the denial of rehearing en banc by Judge Kozinski in Rendon, is taking a “peek” at the court records.  Mathis, 136 S. Ct. at 2256 (quoting Rendon v. Holder, 782 F.3d 466, 473 (9th Cir. 2015) (Kozinski, J., dissenting from denial of rehr’g en banc)).  But this inquiry is very limited, more limited than in even the three-step test suggested in the Ninth Circuit’s Ramirez v. Lynch opinion cited above.  To begin, the “peek” is very much a backup alternative; it is appropriate only “if state law fails to provide clear answers.”  Mathis, 136 S. Ct. at 2256, or, as put alternatively in a footnote, “when state law does not resolve the means-or-elements question,” id. at *2257 n.7.  Compare Ramirez, 810 F.3d at 1134 (seeming to suggest “examin[ation of] court records as a standard second step).  The “peek” is also for a very limited purpose; it has “the sole and limited purpose” “of determining whether [the listed items are] element[s] of the offense,” id. at 2256-57 (quoting Rendon v. Holder, 782 F.3d at 473 (9th Cir. 2015) (Kozinski, J., dissenting from denial of rehr’g en banc)).  The Mathis opinion then offers three examples of how the documents may be used for this purpose.  One example is that of a charging document and instructions that “reiterat[e] all the terms of [the statute]” – in the case of the Iowa burglary statute there, alleging “building, structure or vehicle” – which the Court characterized as “as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.”  Mathis, 136 S. Ct. at 2257.  A second example the opinion gives is the “use [of] a single umbrella term like ‘premises,’” which “[o]nce again . . . would then reveal what the prosecutor has to (and does not have to) demonstrate to prevail.”  Id.  As a third example, and “[c]onversely,” “an indictment and jury instructions could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.”  Id.  This must be one of the terms used in the statutory list, however, not some gratuitous non-statutory description.  This is apparent from the fact that the charging documents in the Mathis case did include such non-statutory descriptions, namely, descriptions of the premises burgled as a “house and garage,” a “garage,” a “machine shed,” and a “storage shed.”  Id. at 2269 (Alito,  J., dissenting).

In any event, the ultimate question which must be answered is whether the statutory alternative is an “element,” i.e., a fact that the jury must find beyond a reasonable doubt.  The tenor of the opinion makes this clear ad nauseum, see id. at 2248, 2251, 2252, 2254-55, 2256, or, to borrow the Court’s characterization of its own prior cases, with “perhaps downright tedium,” id., 136 S. Ct. at 2252.