The Rest of My Own Little Supreme Court Update

July 9, 2013
By Hanging Out with Carl Gunn



  • The Supreme Court has now held – in Descamps v. United States – that the modified categorical approach can be applied only to divisible statutes, i.e., statutes that expressly list alternative ways of committing a crime.
  • Descamps also provides guidance about what documents can be used and how they can be used; they can be used only to identify the alternative which the trier of fact found and/or the defendant admitted.
  • The documents must expressly identify the alternative; inferences about what the trier of fact found or the defendant admitted, even when they are the only realistic ones, are not permissible.



In last week’s post, I talked about two Supreme Court cases that got decided last month which I’d flagged as pending in earlier posts. I also noted a third case that I wanted to talk about this week. That third case is Descamps v. United States, slip opinion attached here and also now available (yes, that quick), at 133 S. Ct. 2276. It’s a great case with a great holding and a great discussion of the limits on the modified categorical approach for deciding whether a prior conviction meets the requirements for a predicate crime triggering some federal enhancement provision, such as the Armed Career Criminal Act, the career offender guideline, or other guideline or statutory provisions.

For more on this modified categorical approach – and the categorical approach which it modifies – see some of my early posts in the April 2012 link at the right and the post about the cert grant in Descamps – “They May Reverse the Ninth Again! (But This Time We Want It.)” – which can be found in the October 2012 link at the right. But as a brief refresher, recall that the modified categorical approach allows a court to go beyond just comparing the statutory definition of the prior offense to the definition in the federal enhancement provision – which is what the “unmodified” categorical approach directs – and allows the court to use certain court records to narrow an overbroad statute. As one example, a burglary statute which applies to entries of cars in addition to buildings, or applies to consensual entries in addition to nonconsensual entries, could be narrowed by court records that specified the place entered was a building and/or the entry was nonconsensual. As another example, a drug statute which applies to multiple forms of conduct such as transportation, sale, and importation, could be narrowed by court records that showed the conduct was actually sale. Both of these are actually real-life examples in California – see Cal. Penal Code § 459 and Cal. Health & Safety Code §§ 11352 and 11360.

Now to the central holding of Descamps. You may recall my prior posts noted a split in the circuits about whether a sentencing court can apply the modified categorical approach only to what are labeled “divisible” statutes, meaning statutes that expressly listed alternative ways of committing the crime. Examples would be California Penal Code § 459’s listing of the various places which a person may enter in committing a burglary (“Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, . . . , vehicle, . . . or mine or any underground portion thereof . . . .”) and California Health & Safety Code § 11352’s and § 11360’s listing of forms of conduct (“every person who transports, imports into this state, sells, furnishes, administers, or gives away . . .”). An example of a non-divisible statute – at least non-divisible on one element – would be California Penal Code § 459’s simple description of the element of “enters” without a listing of types of entry.

A number of circuits had held that the modified categorical approach could be applied only to divisible statutes. But the Ninth Circuit in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) – and arguably some other circuits – had held the modified categorical approach could be applied to any statute or element, regardless of whether it was divisible. The Supreme Court granted cert in Descamps to resolve this split and ruled that the modified categorical approach could be applied only to divisible statutes. The Court reiterated – consistent with its discussion of the modified categorical approach in its prior opinions in Taylor v. United States, 495 U.S. 575 (1990), Shepard v. United States, 544 U.S. 13 (2005),Nijhawan v. Holder, 557 U.S. 29 (2009), and Johnson v. United States, 559 U.S. 133 (2010) – that the modified categorical approach has “a limited function,” slip op. at 5; 133 S. Ct. at 2283, that it simply “helps effectuate” the categorical approach,id., and that “[i]t retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime,” slip op. at 8; 133 S. Ct. at 2285. “All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates ‘several different . . . crimes.’” Id. (quoting Nijhawan, 557 U.S. at 41).

There’s much more to Descamps than its central holding, however. It also provides guidance on both what sorts of documents can be considered under the modified categorical approach and how those documents can be considered. To begin, it suggests that the only way in which documents can be used under the modified categorical approach is to directly identify the statutory alternative of which the defendant was convicted or to which he pled guilty. The Court explained that “the documents we approved in Taylor and Shepard – i.e., indictment, jury instructions, plea colloquy, and plea agreement – would reflect the [selected] crime’s elements.” Slip op. at 9 n.2; 133 S. Ct. at 2285 n.2. As an example, “[i]n a typical case . . . , the prosecutor charges one of [the] alternatives, and the judge instructs the jury accordingly.” Slip op. at 6; 133 S. Ct. at 2284. The Court then gave the following more lengthy explanation in response to the hypothetical the Ninth Circuit had used inAguila-Montes de Oca:

A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. (Citation and footnote omitted.) And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt. So assume along the lines of the Ninth Circuit’s example, that a statute criminalizes assault with any of the specified weapons; and suppose further, as the Ninth Circuit did, that only assault with a gun counts as an ACCA [Armed Career Criminal Act] offense. A later sentencing court need only check the charging document and instructions (“Do they refer to a gun or something else?”) to determine whether in convicting a defendant under that divisible statute, the jury necessarily found that he committed the ACCA-qualifying crime.

Descamps, slip op. at 17, 133 S. Ct. at 2290 (emphasis in original). In other words, the records get used only to the extent that they directly state which one of several statutory alternatives was alleged and either found by a trier of fact or assented to by the defendant.

I say “directly state” because other language in Descampsrejects relying on inferences about what the parties and the judge or jury had in mind. The Court acknowledged – as it had in its previous cases – that there were underlying Sixth Amendment concerns, and stated that “[t]hose concerns, we recognized in Shepard, counsel against allowing a sentencing court to ‘make 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.” Slip op. at 14; 133 S. Ct. at 2288 (quoting Shepard, 544 U.S. at 25). The Court also discussed and rejected the possibility of drawing inferences from the documents being considered, even when the inferences were the only realistic ones which could be drawn.

That approach . . . turns the elements-based inquiry into an evidence-based one. It asks not whether “statutory definitions” necessarily require an adjudicator to find the generic offense, but instead whether the prosecutor’s case realistically led the adjudicator to make that determination. And it makes examination of extra-statutory documents not a tool used in a “narrow range of cases” to identify the relevant element from a statute with multiple alternatives, but rather a device employed in every case to evaluate the facts that the judge or jury found.

Slip op. at 11; 133 S. Ct. at 2287. The Court noted the dissent’s argument that “a sentencing court should be able to make reasonable ‘inference[s]’ about what the factfinder really (even though not necessarily) found,” but pointed out that using documents in this way would require “revisiting our precedents” and that there were now “several decades of water over that dam.” Slip op. at 11 n.3; 133 S. Ct. at 2286-87 n.3.

This has several implications – both for the records that can be used and how they can be used. First, the records which may be considered are limited. Descamps characterizes Shepard as authorizing sentencing courts to consider only “a restricted set of materials.” Slip op. at 7, 133 S. Ct. at 2284. And this stands to reason, for it is only some records that will directly identify the alternative selected from the divisible statute. As one example, the Ninth Circuit, prior to Descamps, has held that police reports may be considered when incorporated into the factual basis for a plea. See United States v. Almazan-Becerra, 537 F.3d 1094 (9th Cir. 2008). But how often will a police report expressly identify a statutory alternative in addition to the statute and its generic label? Perhaps occasionally, but probably not often.

Second, even for records expressly approved in the earlier modified categorical approach case of Shepard – for example, a plea colloquy, see Shepard, 544 U.S. at 26 (giving examples of “the terms of a plea agreement or transcript of colloquy between judge and defendant”) – the part of the record considered must be limited. This is suggested by the recognition in Descamps that “during plea hearings, the defendant may not wish to irk the prosecutor by squabbling about superflous factual allegations.” Slip op. at 15; 133 S. Ct. at 2289. All that can be considered under Descamps are those portions of the records which directly identify – not suggest by inference – the statutory alternative found and/or admitted.

So Descamps gives us much more than its central holding. It limits not just the types of statutes to which the modified categorical approach can be applied, but also what records can be used and how they can be used.