Recidivist Enhancements after Descamps
June 2014Brett G. Sweitzer
Assistant Federal DefenderChief of Appeals
Federal Community Defender Office, E.D. Pa.
When Does this Come Up?Most common situations:
• ∫ 2K2.1: crime of violence∫ 4B1.1 controlled substance
offense
• ∫ 2L1.2: drug trafficking offensecrime of violencefirearms offensealien smuggling offenseaggravated felony
When Does this Come Up?Most common situations:
• 18 U.S.C. ∫ 924(e): violent felony ∫ 4B1.4serious drug
offense[priors do not time-out]
• 8 U.S.C. ∫ 1326(b): aggravated felony
Quick ReviewWas defendant convicted of ___________?
· focus is on the statute of conviction
NOT
Did defendant commit ____________?· focus is on the conduct
• Admissions to qualifying conduct are irrelevant (even in PSRs– but don’t do it)!
• “Of course he did it” is irrelevant
Quick ReviewFormal Categorical Approach
· look to statutory definition, not facts
· elements and nature of statute of conviction
· is statute broader than generic crime in enhancement provision? (“least culpable”)
-- if yes: never a predicate-- if no: always a
predicate
Quick ReviewModified Categorical Approach
· WHEN DO WE GO THERE?
NOT whenever the statute is overbroad
-- MCA is not about mining the Shepard documents for
evidence of conduct or “basis of conviction”
-- Rather, it’s about identifying the statute of conviction
Quick ReviewModified Categorical Approach
· WHEN DO WE GO THERE?
ONLY when:(1) statute is divisible into
alternative elements and judgment has general reference
OR(2) enhancement provision “invites further inquiry”
Quick ReviewModified Categorical Approach
· WHAT IS IT?
look at Shepard/Taylor documents to see if defendant was necessarily convicted of generic crime in enhancement provision
NOT to see what defendant “actually did”
Quick ReviewModified Categorical Approach
• WHAT ARE THE SHEPARD DOCS?
TRIAL:
(1) charging document-- information/indictment-- maybe criminal
complaint, but not applications and the likePLUS (2) jury instructions
Quick ReviewModified Categorical Approach
• WHAT ARE THE SHEPARD DOCS?
PLEA:
(1) charging documentPLUS (2) plea agreement/colloquy
OR(3) other comparable judicial
records of sufficient reliability
Quick ReviewModified Categorical Approach
• WHAT ARE THE SHEPARD DOCS?
The “Comparable Records” Loophole:--- limited to judicial docs--- never a certification requirement--- DP standard• dockets/sent records• ONLY for SOC, NOT FACTS!
Step OneIdentify the Enhancement Provision
∙ “has as an element . . .”∙ enumerated offenses
MUST DETERMINE GENERIC VERSION-- CL, MPC, majority state law, and
analogous federal law∙ residual provisions
-- comparative analysis (Begay/Sykes)
Common Step-One Mistakes“Burglary” = “Burglary”: Failure to Go
Generic
EXAMPLE: 2L1.2 COV
• generic “statutory rape”: under 16 y/o; 4-yr delta
“That’s risky”: Failure to compare (purposeful/viol)
EXAMPLE: 4B1.2 COV∙ reckless/negl simple assault
Step TwoIdentify the ELEMENTS of the statute of
conviction, and determine if offense is broader than defined/generic offense
• identify SOC from conviction record or through modified categorical approach if general reference to divisible statute
• is there a way to violate statute that would not violate generic offense? (“least culpable”)-- may be obvious from text of statute or may need to look at state case law
(Remember: use the version of the stat in effect when prior committed!)
Common Step-Two Mistakes• Using modified categorical approach to
determine what defendant did, rather than to identify SOC
• Misreading statute/statutory scheme
EXAMPLES:
• failing to review expansive stat language
• failing to look at definitional sections• failing to look at immigration cases
and other jurisdictions
Holding of Descamps133 S. Ct. 2276 (2013)
• MCA applies ONLY to “divisible” statutes, and ONLY to determine which division of the statute defendant was convicted under
∙ MCA DOES NOT apply to overbroad statutes, or to those missing an element of the defined/generic offense altogether
∙ MCA is tool for implementing CA, not invitation to consider whatever facts are in Shepard documents
Impact of DescampsGov’t: None! Third Cir always limited MCA
to divisible statutes
Actually: New definition of “divisible”Old Divisibility: divisible = written in the disjunctive (list or outline form)
-- PA burglary’s “building or occupied structure”-- PA simple assault’s “intentional,
knowing, or reckless” bodily injury
Impact of DescampsActually: New definition of “divisible”
New Divisibility: divisible = separable into alternative elements
-- Determined as a matter of the substantive law of the jurisdiction of conviction
-- Disjunctive statutes NOT divisible if the things listed are simply alternative means of satisfying a single element, rather than alternative elements
-- TEST: whether juror unanimity required
Means or Elements?How to tell the difference
(1) Look at charging document-- if charges whole list, they are means
and MCA does not apply (Descamps FN 2)-- doesn’t matter what D admits
(2) If charging document narrows list, look at governing substantive law regarding
submission to jury and juror unanimity
Post-Descamps Cases• Third Circuit is Adrift
The Good:∙ US v. Jones, 740 F.3d 127 (3d Cir. 2014)
-- recognizes MCA use may need to be narrowed in Third Cir
∙ Rojas v. Att’y Gen., 728 F.3d 203 (3d Cir. 2013)
-- MCA does not fill factual gaps∙ Bautista v. Att’y Gen., 744 F.3d 54 (3d Cir.
2014)-- no alt elements in disjunctive NY arson
Post-Descamps Cases• Third Circuit is Adrift
The Bad:∙ US v. Marrero, 743 F.3d 389 (3d Cir. 2014)
-- PA simple assault divisible because disjunctive
-- looks to plea colloquy for facts-- PFR en banc den’d; PFC forthcoming
The Neutral:∙ US v. Abbott, 748 F.3d 154 (3d Cir. 2014)
-- PA PWID divisible because Apprendi element and charging document specified cocaine