More on the Categorical Approach for Applying Federal Prior Conviction Enhancement Statutes

April 17, 2012
By Hanging Out with Carl Gunn


  • Research the federal definition and the state statute.
  • Don’t assume words mean what you – and most everyone else – think they mean.
  • Don’t assume the same words mean the same thing: A rose by any other name . . .


I’ve talked in prior posts about the categorical approach to judging whether prior convictions satisfy federal enhancement statute definitions. Recall that all you need to keep a prior conviction from being considered under this categorical approach is to identify some offense that is covered by the statute for the prior conviction that doesn’t satisfy the federal enhancement definition (though it may need to be more than a mere hypothetical possibility, see James v. United States, 550 U.S. 192 (2007)).

This means you need to engage in two statutory construction exercises. First, you need to figure out the scope of the federal enhancement statute definition: what does it include and what does it not include? Then you need to go to the prior conviction statute and look for offense conduct which that statute includes but isn’t included in the federal enhancement statute’s definition. This means you need to (1) look at and interpret the prior conviction statute’s language and (2) look at the case law – meaning state case law if it’s a state statute – that has interpreted the statute already.

There’s three suggestions I commonly make to people undertaking this task:

1. Dig deeply into the nuances of the prior conviction statute’s language and equally deeply into the state cases interpreting and applying it. And make sure it’s the version of the statute under which your client was convicted that you’re looking at; remember that the statute may have been amended in the years since.

2. Don’t assume words necessarily mean what they seem to mean. Think critically (yes, “think like a lawyer”) about alternative meanings, and then look for cases or other authority that’s construed the statutory language in that alternative way.

3. Don’t assume words in the prior conviction statute necessarily mean the same thing they mean in the federal enhancement statute. Just as a rose by any other name may smell as sweet, calling something a “rose” doesn’t mean it’s really a “rose.” Or put another way, “What’s in a name?”

Let me share some examples of applying these principles. One is an argument that’s not reflected in any case law but is instead an argument that I made long ago when the categorical approach was first being adopted and applied, about a prior conviction for “oral copulation by force” as defined in California Penal Code § 288a. The question was whether this conviction satisfied the Armed Career Criminal Act definition of “violent felony,” which includes, inter alia, any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” The word “force” in the name of the offense – “oral copulation by force” – seemed to suggest my client’s prior conviction qualified, but I decided to dig more deeply. I first looked at the language of the statute and found that what the statute actually required was not necessarily force, but “force, violence, duress, menace, or threat of great bodily harm.” (Emphasis added.) Those other things didn’t sound that different from “force” on their face, but I decided to look further into the case law construing this language and found two things in that case law. First, I found case law incorporating a Civil Code definition of “menace” which included not just threats of violence and bodily harm, but also threats to property and threats of “injury to character.” Second, I found case law defining “duress” as “a direct or implied threat of force, violence, danger, hardship, or retribution.” (Emphasis added.) Next, I found a California Court of Appeals case in which the actual facts constituting the “duress” were a stepfather’s threat to place his stepdaughter on restriction. I then argued that threatening to libel someone (i.e, a threat of “injury to character”) or put a stepdaughter on restriction wasn’t the sort of “force” required to make something an Armed Career Criminal Act “violent felony.”

Other examples of arguments that required such additional digging and were successful can be found in the case law. An Arizona burglary statute which was analyzed in United States v. Bonat, 106 F.3d 1472 (9th Cir. 1997) requires “unlawful” entry, which matches up with the “unlawful” entry element which the Supreme Court held Armed Career Criminal Act burglary requires in Taylor v. United States, 495 U.S. 575 (1990). The court inBonat realized that it had to inquire into whether the word “unlawful” meant the same thing in both the state and federal definitions, however, and found it didn’t when it looked into the Arizona case law interpreting that word. See also United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc), in which the court applied the same analysis in construing the word “unlawful” in a California charging document that the court was considering under the modified categorical approach. Though the defendant in Bonat lost under the modified categorical approach because of a plea transcript providing more detail about the prior offense, the defendant in Aguila Montes de Oca prevailed because there wasn’t such an additional record.

Two other interesting examples can be found in United States v. Rivera-Sanchez, 247 F.3d 905 (9th Cir. 2001) (en banc) andOrtega-Mendez v. Gonzales, 450 F.3d 1010 (9th Cir. 2006).Rivera-Sanchez considered the California drug distribution statute and held it didn’t qualify as a drug distribution offense for federal enhancement purposes because the California statute includes “transportation” as well as “sale” and delving into the California case law reveals that the statute includes transportation for mere personal use. Ortega-Mendez considered the California battery statute which by its literal language requires “force or violence.” The court acknowledged case law the attorney had dug up holding that the “force or violence” the California statute required included the “least touching” and held this was not sufficient to constitute the “force” required by the federal “crime of violence” definition which applied.

Finally, there’s the example I talked about in my last post of the California controlled substance schedules that are broader than the federal controlled substance schedules, so that California “controlled substance” offenses include conduct that federal “controlled substance” offenses don’t. (See “Recent Posts” in the right-hand column.) That’s a wonderful example of an argument that got developed only when someone decided to say to himself or herself, “I wonder if . . .” and then went into the statutes and case law to check.

In each of these cases – and in a number of others there’s not room to summarize – the attorney didn’t just assume that similar language meant similar things or necessarily meant what it usually means, but wondered “what if” and dug deeper into the case law. So wonder “what if” and dig deeper for yourself. You’ll be surprised at what you come up with.