SCOTUS: Can’t use modified categorical approach if statute isn’t divisible

In its final crImmigration case of the 2012-13 Term, the U.S. Supreme Court clarified that courts can not use the modified categorical approach of statutory interpretation when a statute of conviction is not divisible. Descamps v. United States, No. 11-9540, slip op. (U.S. June 20, 2013) (Kagan, Roberts, Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor, JJ.; Kennedy, concurring; Thomas, concurring in the judgment; Alito, dissenting). Instead, courts must rely on the categorical approach alone which allows consideration of the crime’s elements. The modified categorical approach, in contrast, allows courts to examine the record of conviction as well. The approach adopted by the Ninth Circuit that the Court rejected would have allowed courts to consider “underlying facts” even those to which a defendant did not plead or a jury did not find the defendant committed. Descamps, No. 11-9540, slip op. at 2. Justice Kagan wrote the majority’s opinion.

This case did not explicitly involve immigration law. Rather, it involved a criminal sentencing matter under the Armed Career Criminals Act. The categorical and modified categorical approach apply in the immigration context, however, so Descamps is pertinent to attorneys who fall anywhere on the crImmigration continuum. See Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 NYU Law Review 1669, 1707-1711 (2011).

In Mr. Descamps’s case, the sentencing court read through the plea colloquy transcript to conclude that he admitted having committed the elements of burglary as it is generically defined for purposes of determining whether he was convicted of an ACCA “violent felony” which would increase his sentence. Descamps, No. 11-9540, slip op. at 3. Importantly, the generic definition of burglary and other offenses listed in the INA is also how immigration courts decide whether someone has been convicted of a removable offense. The Ninth Circuit affirmed the sentencing court’s use of the plea colloquy in light of its earlier decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (2011), in which the court held that immigration judges may consider facts found in the record of conviction but not in the offense’s statutory elements to determine that a noncitizen had been convicted of a removable crime. (The oral argument in Aguila-Montes de Oca can be viewed here.)

The Supreme Court disagreed. The modified categorical approach, it explained, doesn’t provide courts with an independent means of ferreting into the past. Rather, it simply allows courts to figure out which of multiple versions of a crime the defendant was in fact found by a jury (or through a plea) to have committed. As the court put it, “the job, as we have understood it, of the modified categorical approach [is] to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense.” Descamps, No. 11-9540, slip op. at 8. If there are not alternative versions of an offense or if it’s clear which version the defendant was convicted of violating, then there’s no need to use the modified categorical approach.

Mr. Descamps’s situation illustrates a crime that does not have an alternative version. The offense he was convicted of violating, burglary under California Penal Code Ann. § 459, has a single list of elements. Without question, Descamps was found to have committed those elements. The key, though, is that the California burglary offense is broader than the generic definition of burglary used for ACCA (and INA) purposes. While burglary under federal law “requires an unlawful entry along the lines of breaking and entering,” California’s burglary offense “does not, and indeed covers simple shoplifting.” Descamps, No. 11-9540, slip op. at 9.

This is not sufficient reason to apply the modified categorical approach. It just means there’s a mismatch between burglary in California and burglary under the ACCA. In effect, California and the federal government penalize two different sets of conduct, though they both use the label “burglary” to describe this conduct. Mr. Descamps was convicted of burglary under California’s definition, but that doesn’t mean he was convicted of burglary under the ACCA’s definition.

Accordingly, the Court concluded that Descamps was not convicted of generic burglary. Descamps, No. 11-9540, slip op. at 10. It reversed the Ninth Circuit’s decision affirming the sentencing court’s use of the modified categorical approach. Descamps, No. 11-9540, slip op. at 23.