• Descamps is intervening authority that raises doubt about a host of prior Ninth Circuit cases under the Miller v. Gammie “clearly irreconcilable” test.
• The Ninth Circuit has already recognized that Descampsapplies only to “divisible statutes” that actually list alternative elements.
• The Ninth Circuit has also recognized that the purpose of the modified categorical approach is simply to do what the categorical approach does: compare the elements of the crime of conviction with the elements of the generic crime.

NOW THE BLOG:

Apologies for missing some posts and being a little off schedule this month, but I’ve been doing some traveling and recreating (as in engaging in recreation). In this post, I thought I’d let you know about some thoughts and cases that are being put out on the proper application of the Supreme Court’s Descamps case (Descamps v. United States, 133 S. Ct. 2276 (2013)) that I blogged about back in June. (See “The Rest of My Own Little Supreme Court Update” which was posted July 9, in the link at the right.)

First, for a wonderful summary of a lot of points and ideas, see the summary which is presently posted under the “Case Documents” tab on the Oregon Federal Public Defender website at http://or.fd.org (and which I’m also downloading and directly linking here in case you don’t want to have to find it on the website). The Oregon office has been a real leader in categorical approach litigation and I heartily recommend them – and this summary of Descamps – as a resource. They not only have given us a wealth of ideas about what Descamps means, but remind us that Descamps is intervening authority that opens the door to challenging much of the Ninth Circuit precedent in this area, under the “clearly irreconcilable” test of Miller v. Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). See id. at 900 (“We hold that the issues decided by the higher court need not be identical in order to be controlling. Rather, the relevant court of last resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable.”).

In addition, there’s already been a couple of Ninth Circuit cases that have come down applying Descamps. One is United States v. Flores-Cordero, ___ F.3d ___, No. 12-10220, 2013 WL 3821604 (9th Cir. July 25, 2013), in which the court found an Arizona resisting arrest statute categorically overbroad and then ruled that Descamps prevented it from even considering the modified categorical approach. The court explained:

Use of the modified categorical approach is appropriate only when the state statute lists multiple, alternative elements, and the federal court is attempting to determine the elements implicated in a particular defendant’s violation of the statute.

Flores-Cordero, 2013 WL 3821604, at *4.

The court then expanded on this a little bit more in United States v. Acosta-Chavez, ___ F.3d ___, No. 12-10324, 2013 WL 4082128 (9th Cir. August 14, 2013), in which the court considered a state statute criminalizing sex with minors that was categorically overbroad because it applied to any victim “at least 13 years of age but under 17 years of age” when the federal definition of minor is someone under 16 years of age, see Acosta-Chavez, 2013 WL 4082128, at *4. The court initially explained:

A “divisible statute” . . . is one that “sets out one or more elements of the offense in the alternative” or “comprises multiple, alternative versions of the crime.” [Descamps, 133 S. Ct.] at 2281, 2284. The modified categorical approach may be used only when one of those alternatives is an element of the generic offense, and another is not. In these circumstances, the sentencing court may “consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction.” Id. at 2281. “The court can then do what the categorical approach demands: compare the elements of the crime of conviction . . . with the elements of the generic crime.” Id.

Acosta-Chavez, 2013 WL 4082128, at *3. The court then held that the statute before it did not satisfy this test:

The [state] statute’s age element is stated as a range – “at least 13 years of age but under 17 years of age.” (Citation omitted.) The statutory language is therefore not written in a manner that defines this element “alternatively, with one statutory phrase corresponding to the generic crime and another not.” (Footnote omitted.) Descamps, 133 S. Ct. at 2286. Although the statute “implies” a sequence of ages, the Descamps Court expressly prohibited sentencing courts from “hypothetically reconceiv[ing] such a statute in divisible terms.” Id. at 2290. The Supreme Court clearly stated that divisibility exists only when an element of the crime of conviction contains alternatives, one of which is an element of its federal analogue. Id. at 2283-84. The [state] statute at issue in this case does not meet this criterion, and we thus may not resort to the modified categorical approach.

Acosta-Chavez, 2013 WL 4082128, at *4.

These cases give us a little taste of what Descamps might mean, but there’s far more potential out there, as suggested briefly in my prior post and far more extensively in the Oregon Federal Public Defender summary. So get to litigating, and know that even previously decided issues are fair game under the Miller v. Gammie “clearly irreconcilable” test.