They May Reverse the Ninth Again! (But This Time We Want It)

October 9, 2012
By Hanging Out with Carl Gunn


  • Present Ninth Circuit law allows courts to apply the “modified categorical approach” not just to divisible statutes that define multiple crimes or ways of committing a crime, but to any statute.
  • But there’s a split in the circuits and the Supreme Court just granted cert on the issue.
  • So preserve the issue with appropriate objections, because the Ninth Circuit law may change.


For those of you who’ve been following my blog since the beginning, you may recall that I wrote several early posts about what are called the “categorical approach” and “modified categorical approach” to deciding whether a prior conviction comes within the definition in a federal statutory or guidelines enhancement definition. (See the posts at the April 2012 link on the right.) Well, there’s been some good news in this area over the last month and a half that I thought I’d make sure everyone knew about.

To briefly remind those not intimately familiar with it already, recall that what a court needs to do in applying most federal enhancement provisions is ascertain what the defendant was convicted of, not what he “really did.” The court starts with the basic categorical approach, in which the court compares the elements of the statute under which the defendant was convicted with the elements of the offense definition in the federal enhancement statute or guideline, and considers whether there is some possible conduct within the prior conviction statute that does not come within the offense as defined in the federal enhancement statute. If the answer is yes, then the conviction doesn’t qualify under the categorical approach.

But the court can go on, in at least some instances, to what we’ve come to know as the “modified categorical approach.” Under that approach, the court may look beyond the statute to a limited extent, to court records such as jury instructions and the verdict in cases where the defendant was convicted in a trial and to records such as the charging document, a transcript of the plea colloquy, a written plea agreement, and other sufficiently comparable records (just what types has been the subject of some dispute; see, for example, my additional June 5, 2012 blog to be found in the June 2012 link at the right) in cases where the defendant was convicted by plea.

One piece of good news we’ve gotten in the last month and a half relates to the issue of whether the modified categorical approach can be applied to any prior conviction or only to prior convictions under what are sometimes called “divisible” statutes – statutes which list several specific crimes or specific ways of committing a crime. You may recall that I discussed this issue in my April 3, 2012 post (or if you choose not to memorize everything I write about in this blog, you can look at the prior post through the April 2012 link on the right) and noted that the Ninth Circuit – in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc) – had recently overruled a prior case limiting the modified categorical approach – Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th Cir. 2007) (en banc) – and held it could be applied to any statute, not just divisible statutes.

Here’s where the good news comes in. As I pointed out in that post last April – in encouraging you to keep making the argument and preserving the issue – there’s a split in the circuits on the issue and this categorical approach/modified categorical approach issue is an area where the Supreme Court has been very active, so there was a good chance the Court might grant cert on the question in the foreseeable future. And lo and behold, the Court did just that a month and a half ago – inDescamps v. United States, No. 11-9540, 2012 WL 1031489 (U.S. Aug. 31, 2012). The issue, as articulated in the defendant’s petition for writ of certiorari, which can be found at 2012 WL 3766953, is “[w]hether the Ninth Circuit’s ruling in United States v. Aguila Montes de Oca, 655 F.3d 915 (9th Cir. 2011), (en banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.” So this issue is back in play, and there’s even more reason to be preserving this argument than there was before.

There’s also another piece of good news, but we’ll save that for the next post so as to keep this post from getting too long and so as to have a sequel for next week.