4th Cir: Can’t use modified categorical approach to examine alternative prongs of a single element

By Matthew Meyers

In 2009, Thomas Royal was convicted of unlawful possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1).  At sentencing, the trial court found that Royal was an armed career criminal, as defined by the Armed Career Criminal Act (“ACCA”).  This finding triggered a minimum sentence of fifteen years.  On appeal, the Fourth Circuit reversed his sentence.  The court held that, in light of the recent Supreme Court decision Descampsv. United States, 133 S. Ct. 2276 (2013), the district court had misapplied the ACCA.  Royal also appealed his conviction because the government had not presented sufficient evidence that the ammunition in his possession was non-antique.  Antique ammunition falls outside the prohibition in § 922(g)(1).  The court affirmed Royal’s conviction in this regard, concluding that the government did not have the burden to disprove that the ammunition was antique.

Besides federal criminal law, UnitedStates v. Royal, No. 10-5296 (4th Cir. Oct. 1, 2013), impacts immigration law in the Fourth Circuit.  The approach mandated by Descamps for the ACCA — called the categorical approach — applies to the Immigration and Nationality Act (“INA”).  See Moncrieffe v. Holder, 133 S. Ct. 1678 (2013).  Immigration judges must use the categorical approach or its variant the modified categorical approach when they decide whether an alien is inadmissible or deportable.

The ACCA enhances sentences for felons who have three prior “violent felony” or “serious drug offense” convictions.  Courts employ one of two approaches to decide whether these definitions apply to a defendant’s prior convictions.  In Descamps, the U.S. Supreme Court clarified the process. The primary method is the categorical approach.  A court compares the elements of the defendant’s offense to those of the “generic” ACCA crime.  If the offense and the generic crime have the same elements or the offense is drawn more narrowly than the generic crime, the offense can serve as a predicate offense under the ACCA.  However, if the defendant’s offense is broader than the generic crime, it cannot serve as a predicate.  The inquiry is focused on the statutory elements of conviction, rather than the underlying conduct that satisfied those elements.  Similarly, an immigration judge uses the categorical approach to determine whether an alien has been convicted of an offense that makes him removable.  The INA only specifies the generic crimes for which an alien may be deported; it falls to immigration judges to decide whether a particular state statute fits within the definition of the generic crime.

For example, a “crime of violence,” one kind of violent felony, is any offense for which there is an element involving “the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 16(a). A crime of violence (for which the term of imprisonment is at least one year) is also an aggravated felony under the INA.  INA § 101(a)(43)(F).  An alien is deportable if he commits an aggravated felony.  See INA § 237(a)(2)(A)(iii).

Imagine a defendant is convicted of an offense that prohibits (1) intentional (2) use of physical force against a person.  Using the categorical approach, a court would determine that the offense is a crime of violence because the required element of the generic crime as defined by 18 U.S.C. § 16(a) – use of physical force – is the same as the element in the statute of conviction. But, if the offense prohibited (1) intentional (2) touching, the crime could not serve as an ACCA predicate.  The offense would sweep much broader than the generic crime.  Looking at the statute of conviction alone, a defendant convicted of the second imagined offense would not have necessarily committed a crime of violence.  A person could be convicted of the second imagined offense without using physical force.  The question is whether a person is convicted of an offense that is categorically a crime of violence – hence, the categorical approach.

Let’s throw an additional wrench into the works.  If the defendant had been convicted of a crime that prohibits (1) intentional (2a) use of physical force against a person or (2b) touching, a district court (or, in the immigration context, an immigration court) would be in a predicament.  The defendant was convicted under either (1)+(2a) or (1)+(2b), but the court could not determine which by looking at the statute alone.  If it was the former, it would be a crime of violence.  If it was the latter, it would not be because the genericdefinition provided by 18 U.S.C. § 16(a) does not include the “touching” prohibited by alternative (2b) of our imagined offense.  The statute, therefore, is divisible.  As the Descamps court notes, a trial court may use the modified categorical approach in this limited circumstance: “it may examine some items in the state-court record, including charging documents, jury instructions, and statements made at guilty plea proceedings, to determine if the defendant was actually found to have committed the elements of the generic [crime].”  Even under the modified categorical approach, a court may not delve into the facts of a defendant’s case.  The court in Descamps describes the approach as follows:

[T]he modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. 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.

In Royal, the district court had concluded that one of Royal’s previous convictions for second-degree assault constituted a crime of violence under the ACCA. That conviction served as one of the predicates for the sentencing enhancement.  But the district court had used the modified categorical approach to come to its conclusion.  The Maryland assault statute codifies the common-law version of assault, which has three elements: “(1) the defendant caused offensive physical contact with, or harm to, the victim; (2) the contact was the result of an intentional or reckless act of the defendant and was not accidental; and (3) the contact was not consented to by the victim or was not legally justified.” Element (1) could be satisfied by proof that the
defendant caused either offensive physical contact (not a crime of violence) or harm to (crime of violence) the victim.  Thus, a defendant need not use physical force to be convicted of second-degree assault.  Under the categorical approach, second-degree assault is not a crime of violence. As the Fourth Circuit panel found, the conviction could not serve as one of the three predicates for a sentencing enhancement.

The district court erred because it had used the modified categorical approach.  It had found (1) could be satisfied if the defendant had, in fact, used physical force.  In its view, this made the statute divisible.  But, as the Fourth Circuit states, “Rather than alternative elements, . . . ‘offensive physical contact’ and ‘physical harm’ are merely alternative means of satisfying a single element of the Maryland offense. Consequently, because ‘[t]he dispute here does not concern any list of alternative elements,’ the modified approach ‘has no role to play.’”  The Fourth Circuit vacated Royal’s sentence and remanded the case for resentencing.

You are not alone if you believe the categorical approach seems like a circuitous way of determining whether a defendant has been convicted of a crime of violence.  Critics charge that the approach saves defendants from longer sentences based on a legal technicality.  In the immigration context, an alien who did, in fact, commit a crime of violence is ineligible for removal if he is convicted under the wrong statute.

But this critique assumes the basic issue.  The INA mandates removal for certain kinds of convictions, rather than certain kinds of allegations.  An alien who is convicted is found guilty beyond a reasonable doubt of committing the conduct that satisfies the elements of the offense, nothing more.  Any unproven allegations are just that – allegations.  Because they have not been proven, judges should not be able to rely upon them to deport the alien.  Furthermore, the categorical approach promotes uniformity.  Every alien convicted under a particular (indivisible) statute will be either deportable or not.

The Fourth Circuit has solidified the Descamps approach as the law of the land.  Practitioners in criminal law and immigration law should take note.

Matthew Meyers is a third-year law student at Wake Forest University School of Law.  He writes for Collecting Cases, a legal blog run by the Wake Forest Law Review.  The blog can be found at http://www.collectingcases.com.  He may be reached at executiveonlineeditor@wakeforestlawreview.com.