It’s Not Just Differences in Elements You Need to Consider in Applying the Categorical Approach; Think About Differences in Sentencing Factors and Affirmative Defenses as Well

May 28, 2013
By Hanging Out with Carl Gunn



  • A recent Supreme Court case holds that the comparison of state and federal offenses required by the categorical approach isn’t limited to the just the technical “elements.”
  • This opens the door to reconsideration of Ninth Circuit cases holding courts don’t need to compare affirmative defenses.
  • So look into and compare the state law and federal law on affirmative defenses as well as the offense elements.



A month or so back, the Supreme Court issued another opinion – in Moncrieffe v. Holder, 133 S. Ct. 1678 (2013) – on one of my favorite subjects – the categorical approach to determining whether prior state convictions satisfy what’s sometimes called the “generic” definition in federal enhancement provisions such as the Armed Career Criminal Act or career offender guideline and certain immigration law provisions. (For more on this subject, see some of my very first blogs through the April 2012 link in the right-hand column.) The general rule – as reiterated in Moncrieffe, which applied it to the immigration law definition of “aggravated felony” – is:

Under this approach we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the “generic” federal definition of a corresponding aggravated felony. By “generic,” we mean the offenses must be viewed in the abstract, to see whether the state statute shares the nature of the federal offense that serves as a point of comparison. Accordingly, a state offense is a categorical match with a generic federal offense only if a conviction of the state offense necessarily involved facts equating to the generic federal offense. Whether the noncitizen’s [or defendant’s] actual conduct involved such facts is quite irrelevant.

Because we examine what the state convictions necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon nothing more than the least of the acts criminalized, and then determine whether even those acts are encompassed by the generic federal offense.

Id. at 1684 (internal quotations and citations omitted).

This of course is nothing new and isn’t what justifies a new post – or a new Supreme Court opinion for that matter. The additional issue presented in Moncrieffe was whether a sentencing or immigration court has to compare just the “elements” of the state and federal offenses or whether it also has to compare other provisions that narrow the offense. The specific provision there was a penalty provision that transformed felony distribution of marijuana into a misdemeanor offense (and thus not an “aggravated felony“) if the distribution was of just a small amount of marijuana and for no remuneration. See Moncrieffe, 133 S. Ct. at 1686 (quoting 21 U.S.C. § 841(b)(4)). The Court rejected the government’s attempt to distinguish this provision as a “mitigating exception” and limit application of the categorical approach to “elements,” Moncrieffe, 133 S. Ct. at 1687, and stated that it “made clear in Carachuri-Rosendo[ v. Holder, 130 S. Ct. 2577 (2010)] that . . . a generic federal offense may be defined by reference to both ‘”elements” in the traditional sense’ and sentencing factors.” Moncrieffe, 133 S. Ct. at 1689 (quoting Carachuri-Rosendo, 130 S. Ct. at 2584).

Moncrieffe thus establishes at the least that courts making the categorical approach must compare state law and federal law “sentencing factors” in addition to state law and federal law “elements.” But Moncrieffe may imply more. What about comparison of state law and federal law affirmative defenses? Gail Ivens of our Federal Public Defender’s office here in Los Angeles suggested in a recent e-mail that Moncrieffe requires this comparison as well and pointed to some Ninth Circuit cases which may be open to reconsideration as a result. (Remember that Ninth Circuit precedent can be reconsidered without en banc review if it is clearly irreconcilable with intervening authority,see, e.g., Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1019 (9th Cir. 2006), and it can be reconsidered en banc even if the conflict falls short of the “clearly irreconcilable” standard.)

The most recent of the cases Gail pointed to is particularly interesting because it considered an offense and an affirmative defense just like one considered as a hypothetical in Moncrieffe. That was the offense of unlawful possession of a firearm, which excludes antique firearms under federal law but does not exclude them under at least some state laws. See Gil v. Holder, 651 F.3d 1000, 1005 (9th Cir. 2011). The Ninth Circuit held in Gilthat this did not matter because “we consider only the statutory elements of the offense” and “[a]ccordingly . . . do not consider the availability of affirmative defenses.” Id., 651 F.3d at 1005. But Moncrieffe suggested the opposite result in this exact same scenario, at least if prosecution for antique firearms is not just “a theoretical possibility.”

[T]he Government suggests that our holding will frustrate the enforcement of other aggravated felony provisions, like § 1101(a)(43)(c), which refers to a federal firearms statute that contains an exception for “antique firearm[s],” 18 U.S.C. § 921(a)(3). The Government fears that a conviction under any state firearms law that lacks such an exception will be deemed to fail the categorical inquiry. But[Gonzales v.] Duenas-Alvarez[, 549 U.S. 183 (2007)] requires that there be “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” 549 U.S. at 193, 127 S. Ct. 815. To defeat the categorical comparison in this manner, a noncitizen would have to demonstrate that the State actually prosecutes the relevant offense in cases involving antique firearms.

Moncrieffe, 133 S. Ct. at 1693. So such affirmative defenses do have to be considered in applying the categorical approach, at least if they’re more than “a theoretical possibility.”

Moncrieffe does use the word “exception” rather than the words “affirmative defense” in discussing this scenario, but the Ninth Circuit case, Gil, expressly uses the words “affirmative defense.”See id., 651 F.3d at 1005. And it followed a case which also used the words “affirmative defense,” see United States v. Velasquez-Bosque, 601 F.3d 955, 963 (9th Cir. 2010) (acknowledging common law “claim of right” defense to robbery/extortion but refusing to consider it because “[t]he availability of an affirmative defense is not relevant to the categorical analysis”),cited in Gil, 651 F.3d at 1005, which case followed in turn an earlier case that also used the word “defense,” see United States v. Charles, 581 F.3d 927, 963 (9th Cir. 2009) (recognizing difference in California and federal entrapment defenses, at least in allocation of burden of proof, but finding no plain error because of failure to present “any controlling authority demonstrating that a court must consider widely accepted common law defenses when conducting a categorical approach analysis”), cited in Velasquez-Bosque, 601 F.3d at 963.

Following this chain back suggests that it’s not just “sentencing factors” and “exceptions” that Moncrieffe changed the law on, but also affirmative defenses. In the same way that Gil can no longer be good law on its specific antique firearms defense,Velasquez-Bosque and Charles can no longer be good law on their statements about the irrelevance of affirmative defenses in general.

Indeed, an even earlier Ninth Circuit case affirmatively recognized at least the possibility that affirmative defenses should be considered. That’s the case of United States v. Gomez-Mendez, 486 F.3d 599 (9th Cir. 2007), in which the court expressly “assum[ed], without deciding, that[the categorical approach] also requires that a state crime incorporate widely accepted affirmative defenses in order to fall within the generic definition.” Id. at 604.

Gomez-Mendez gives you the assumption. Now use Moncrieffe to get the holding. Dig into the state law defenses as well as the state law elements when doing your categorical approach analysis.