The Ninth Circuit Agrees With Us on What Divisibility Means Under Descamps

October 7, 2014
By Hanging Out with Carl Gunn


  • The Ninth Circuit has confirmed that Descamps requires that a list of alternative ways of committing a crime in a statute must be a list of alternative elements for the statute to be divisible, not just a list of alternative means.
  • Alternatives are alternative elements rather than alternative means when the jury has to unanimously agree on the alternative; if the jury doesn’t have to unanimously agree, then the alternatives are merely alternative means.
  • So you need to research not only the substantive meaning of each alternative in the state statute your client was convicted under, but also the procedural question of whether the jury has to unanimously agree on the alternative.


Last year, after the Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276 (2013) came down, I put up a post discussing just what it means for a statute to be “divisible,” as Descamps requires for application of the modified categorical approach. (See “More on Descamps” in the September 2013 link at the right.) The post explained how Descamps strongly supports the argument that it isn’t enough for a statute simply to list alternatives connected by the word “or.” Descamps also requires that the listed alternatives be alternative “elements” from which a jury must unanimously choose, not just alternative “means” upon which a jury is not required to agree. I pointed to several rationales and passages in Descamps that support this position, including (1) Descamps’ citation of Richardson v. United States, 526 U.S. 813 (1999), (2) the majority opinion’s seeming acceptance of the dissent’s view that a statute simply listing alternative “means” would not be divisible underDescamps, and (3) the underlying rationale of Descamps and its precursors – cases like Shepard v. United States, 540 U.S. 13 (2005) – that the categorical and/or modified categorical approaches can be used only because there was a previous jury or judicial finding of the particular fact required by the generic definition at issue.

Well, less than two months ago, the Ninth Circuit published an opinion – Rendon v. Holder, ___ F.3d ___, No. 10-72239, 2014 WL 4115930 (9th Cir. Aug. 22, 2014)] – agreeing with this position and based upon the same rationales. (Thanks to Former Deputy Federal Public Defender Davina Chen for bringing the case to our attention.) Rendon first explained that “[t]he critical distinction is that while indivisible statutes may contain multiple, alternative means, only divisible statutes contain multiple, alternative elements of functionally separate crimes.”Id. at *3 (emphasis in original). The court then explained why the difference mattered:

[A]s Descamps explained, when a state statute punishes a broader range of conduct than a federal, generic crime, “only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime.” 133 S. Ct. at 2290. That is because “[a] prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt.” Id. (citation and footnote omitted).

Rendon, 2014 WL 4115930, at *3 (emphasis in original). As the court further explained:

Any statutory phrase that – explicitly or implicitly – refers to multiple, alternative means of commission must still be regarded as indivisible if the jurors need not agree on which method of committing the offense the defendant used. Otherwise, the Court’s express purpose for separating indivisible statutes from divisible statutes – preventing sentencing courts from finding facts on which the jury did not have to agree, rather than elements on which a jury did have to agree – would be undermined.

Rendon, 2014 WL 4115930, at *4 (emphasis in original).

Rendon then pointed to some of the same Descamps reasoning pointed out in my post last year. First, Rendon noted Descamps’ citation of Richardson v. United States, 526 U.S. 813 (1999) “for the proposition that ‘the only facts the court can be sure the jury . . . found [unanimously and beyond a reasonable doubt] are those constituting elements of the offense.’” Rendon, 2014 WL 4115930, at *5 (quoting Descamps, 133 S. Ct. at 2288 and citingRichardson, 526 U.S. at 817) (emphasis added in Rendon). Second, Rendon pointed to the concern expressed in theDescamps dissent that a statute would be divisible only if the listed alternatives were elements upon which a jury must unanimously agree and the fact that “the majority did not contest the dissent’s characterization.” Rendon, 2014 WL 4115930, at *5 n.10. Rendon then also cited as additional authority a Fourth Circuit opinion – United States v. Royal, 731 F.3d 333 (4th Cir. 2013) – as consistent with the requirement that a list of alternatives must be a list of alternative elements between which a jury must unanimously choose, not just a list of alternative means not requiring unanimous agreement. See Rendon, 2014 WL 4115930, at *5 (citing Royal). (I blogged about this opinion myself back in April — see “More on What’s a Divisible Statute Under Descamps in the April 2014 link at the right.)

Rendon then clearly stated the same thing I state in the first paragraph above – that the mere use of the word “or” is insufficient.

Thus, when the court encounters a statute that is written in the disjunctive (that is, with an “or”), that fact alone cannot end the divisibility inquiry. Only when state law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.

Rendon, 2014 WL 4115930, at *4 (emphasis in original). The court then applied this rule to the burglary statute before it, which required entering a place (in that case, an automobile) with an intent to commit “grand or petit larceny or any felony.”Id. at *7 (quoting Cal. Penal Code § 459). The court noted that California law is clear that the jury does not have to be unanimous regarding the particular offense the defendant intended to commit, and so the listed alternatives – grand larceny, petit larceny, or any felony – were alternative means rather than alternative elements. Rendon, 2014 WL 4115930, at *7. And this, it held, made the statute not divisible, and hence not subject to the modified categorical approach. Id. at *8.

So we now have not just a good argument and some out-of-circuit authority to point to. We have controlling Ninth Circuit authority. In evaluating a client’s prior conviction, you need to research not just the substantive question of what the different alternatives listed in the statute mean, but also the procedural question of whether the jury had to unanimously agree on a specific one of the alternatives.