Opinion analysis: When is a burglary not a burglary?
on Jun 20, 2013 at 11:18 pm
On Monday, when the Court, in Alleyne v. United States, waded back into Apprendi land to overrule the long-beleaguered Harris v. United States and require that facts necessary for the imposition of mandatory minimum sentences (not just statutory maximums) be found by juries, it found no need to revisit another longstanding Apprendi wrinkle: the rule in Almendarez-Torres v. United States that judges alone can determine the existence of prior convictions, even when such findings can increase a defendant’s statutory maximum. Today, in Descamps v. United States, the Court reinforced the limited nature of the Almendarez-Torres carve-out – at least as a matter of statutory interpretation — and restricted the materials that a federal sentencing court can look at when deciding whether a particular prior state conviction counts towards the three “violent felonies” that make a defendant an “Armed Career Criminal.”
Following his federal conviction (after a jury trial) of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), Matthew Descamps normally would have faced ten years’ imprisonment with no mandatory minimum. But upon finding that Descamps had three prior “violent felonies,” including a 1978 California burglary conviction, the district court sentenced him under the Armed Career Criminal Act (“ACCA”) – which carries a minimum term of fifteen years and a maximum of life – to 262 months in prison. A burglary counts as a “violent felony” under the ACCA’s generic definition if its “basic elements” include the “unlawful or unprivileged entry into, or remaining in a building or structure, with intent to commit a crime.” Because the California burglary statute lacked an element requiring that entry be unlawful or unprivileged, Descamps’s 2008 sentencing judge looked to the 1978 guilty plea proceedings. Back then, the charging document had alleged that Descamps had entered a building “with intent to commit a theft”; the parties had agreed that there was a factual basis for the plea, and when the prosecutor said the crime had “involve[d] the breaking and entering of a grocery store,” Descamps said nothing. On this record, the district court found adequate evidence that the 1978 offense counted as a “burglary” for ACCA purposes. The Ninth Circuit affirmed the sentence, finding that the Court’s “modified categorical approach” allowed the district court to rely on materials beyond the statutory definition.
Today, the Court held that the Ninth Circuit’s reasoning was not just wrong, but really wrong. As Justice Kagan explained in her opinion for the Court, among the virtues of a “categorical approach” that simply looks at the statutory elements of a crime rather than its underlying facts are that it avoids the practical difficulties and possible unfairness that can result when a sentencing judge rummages through the record of prior proceedings and “the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries.” Yes, the Court had “modified” the categorical approach to allow consultation of a “limited class of documents, such as indictments and jury instructions” when the prior offense of conviction involved a “divisible statute” containing alternative elements, only some of which fit the generic federal definition. But the modification was designed only for a “narrow range of cases,” and it merely “provided a mechanism” to compare the elements of a state statute with those of a federal generic offense when the state “statute lists multiple, alternative elements.”
Since this case didn’t involve a dispute about a “divisible statute,” the Court found it pretty easy. Because the California statute doesn’t require an unlawful entry, and indeed “covers simple shoplifting,” it does not satisfy the generic federal definition and cannot serve as an ACCA predicate. “Whether Descamps did break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant.” “We know Descamps’ crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over.”
Finding this an easy case left the Court ample room to excoriate the Ninth Circuit for not just ignoring its precedents – which the lower court had dismissed as “lack[ing] conclusive weight” – but “subvert[ing]” them. Not only had the Ninth Circuit ignored the ACCA’s focus on a prior “conviction” rather than the underlying conduct, but its licensing of judicial fact finding “beyond the recognition of a prior conviction” raised precisely the Sixth Amendment problem that the categorical approach had been designed to avoid. Finally, the Ninth Circuit’s approach would regularly create practical difficulties for courts trying to figure out what “a defendant admitted in a plea colloquy, or a prosecutor showed at trial,” and unfairness for the defendant who had not bothered to contest a (then) legally irrelevant factual allegation. Even for those not ordinarily interested in technical sentencing decisions, the Court’s opinion is worth reading for its miffed tone of a well-respected author confronted with an obdurate reader claiming unfamiliarity with her work. The Court concluded by rejecting the government’s effort “to distance itself from the Ninth Circuit.”
Justice Thomas concurred in the judgment just to make clear that he still wants Almendarez-Torres dead. And given the fate of Harris, we ought not discount this possibility in future Terms.
Only Justice Alito dissented. Finding the Ninth Circuit’s approach grounded in the Court’s “modified categorical approach” precedents, he noted that “Congress enacted ACCA to ensure (1) that violent, dangerous recidivists would be subject to enhanced penalties and (2) that those enhanced penalties would be applied uniformly, regardless of state-law variations.” And the Court’s holding, he complained, “will hamper the achievement of these objectives by artificially limiting ACCA’s reach and treating similar convictions differently based solely on the vagaries of state law. Defendants convicted of the elements of generic burglary in California will not be subject to ACCA, but defendants who engage in exactly the same behavior in, say, Virginia, will fall within ACCA’s reach.”
Acknowledging Justice Alito’s point even while agreeing with the Court’s analysis, Justice Kennedy filed a separate concurrence suggesting that Congress might want to tinker with the ACCA if it wants to “pursue its policy in a proper and efficient way without mandating uniformity among the States with respect to their criminal statutes for scores of serious offenses.”
Today’s decision recognizes the exceptional nature of the authority judges have been given, under a variety of federal and state regimes, to do fact finding about prior convictions that will dramatically increase a defendant’s sentence. Whether or not a prior conviction is going to “count” will have to be determined as mechanically as possible. And sentencing courts should not be parsing old transcripts to figure out what a defendant was “really” found guilty of or pleaded to.
In Plain English:
Under the federal “Armed Career Criminal Act,” a defendant will get a much higher sentence if he has prior convictions that count as “violent felonies” under a federal definition. Because the prior conviction of the defendant in this case was under a California “burglary” statute that is not covered by the federal definition, the Court overturned his sentence. And it said the lower courts had erred when deciding whether the federal definition had been satisfied, because they considered not only the California law but also facts that had come out when the defendant had pleaded guilty in the California court.