Argument preview: Growing pains in the mass incarceration and deportation movements
on Apr 19, 2016 at 5:41 pm
On Tuesday, April 26, the United States Supreme Court will hear oral argument in Mathis v. United States, likely to be the Term’s most important federal sentencing case, and its second-most important immigration case after United States v. Texas. It involves the surprisingly complicated question of how to determine which state convictions qualify for federal mandatory minimum sentences and for removal under immigration law. To understand why the case is so important, and why the issue of which convictions qualify is so bewildering, some investment in the background is essential.
Back in the 1980s, when the federal government seriously got in the business of meting out long sentencing enhancements based on prior state convictions for “violent felonies,” and deporting green-card holders for a fast-growing list of “aggravated felonies,” it all seemed so simple. A burglary, for example, was explicitly listed as a violent felony for sentencing purposes, and as an aggravated felony under immigration law. Why would there ever be an issue as to whether any given burglary would qualify in either context?
But the definition of burglary varies from state to state, and the Court soon decided that Congress could not have wanted federal courts simply to go by whatever various states called “burglary.” So, in the 1990 case of Taylor v. United States, the Court instead held that burglary (and, critically, most other crimes listed in the federal sentencing and immigration statutes) would be gauged on a “categorical” basis. As a matter of federal common law, the Court set forth a generic federal definition of burglary with essential elements. If the essential elements of a state burglary statute were necessarily subsumed within the elements of general federal burglary, then all convictions under that state statute would qualify. But if a person could be convicted of burglary under a given state statute for conduct outside Taylor’s generic federal standard, then that state statute was categorically disqualified from serving as the basis for federal sentencing or immigration consequences.
Note that this categorical disqualification would take place even if the convicted individual had actually engaged in conduct that qualified under the generic federal standard. As long as anyone could be convicted under that state burglary statute for conduct beyond the federal generic burglary standard, no one could suffer federal sentencing or immigration consequences because of a conviction under that statute. The result was to create a sort of windfall for some defendants and immigrants. The Court stated that this categorical approach (as opposed to a fact-based approach) was necessary to avoid retrials of old convictions, and to ensure consistency and predictability. Still, it left government lawyers wishing they could “unlock the facts” underlying prior convictions in order to show that the defendant or immigrant at bar had actually done something in line with the federal generic standard.
Based on Taylor, which involved several Missouri burglary statutes, and the Supreme Court’s 2005 decision in Shepard v. United States, involving a Massachusetts burglary statute, lower federal courts began to unlock the facts by using a device that came to be known as the “modified categorical approach” (MCA). Under the MCA, courts looked at the charging papers, jury instructions, plea colloquy, or sometimes other documents, to see whether the defendant or immigration petitioner had actually engaged in conduct falling within the federal generic standard. Widespread use of the MCA made government lawyers happy, but it threatened to become the rule rather than the exception.
In 2013, the Court tried to stop this routine use of the MCA in Descamps v. United States, a case involving the California burglary statute. Lower federal courts had misunderstood the MCA, wrote Justice Elena Kagan for the majority. The MCA may be used to unlock the facts only for the limited purpose of determining under which part of a statute the defendant was convicted. Some statutes are divisible, in the sense that they contain multiple chargeable offenses within them. Others are indivisible – they contain only a single offense. An indivisible statute might be violated by any number of different factual means, but it contains only a single set of essential elements.
Descamps effectively concentrated all the analytical pressure onto the point now presented in Mathis: exactly how does a federal court determine whether a statute is divisible, thus unlocking the facts? Petitioner Richard Mathis argues that whether a state statute contains multiple offenses is a question of state law, and that federal courts are required to follow state precedent where available. The government argues that federal courts may only examine the text of the state statute, and that it is divisible whenever it sets out alternative, disjunctive phrases – no matter what state case law says.
In this case, for example, Mathis was convicted of several burglaries in Iowa. When he was later prosecuted by the federal government for being a felon in possession of a firearm, he received a mandatory minimum sentence under the Armed Career Criminal Act (ACCA) based on those Iowa burglary convictions. The Iowa burglary statute was overbroad in relation to the federal generic burglary standard adopted in Taylor because it authorized convictions for unlawful entry into some boats and motor vehicles, whereas the federal generic burglary definition is limited to fixed structures. Because someone could be convicted of burglary in Iowa for breaking into a boat or car, Mathis could only be sentenced under the ACCA if the court was permitted to use the MCA to show that he was not convicted under the portion of the statute dealing with boats and cars, but was instead convicted under the part of it dealing with fixed structures. And, according to the charging documents in Mathis’s case, he had in fact been caught burglarizing fixed structures, not boats or cars.
Under Descamps, the court would only be permitted to use the MCA if the Iowa burglary statute is divisible. The statute uses the term “occupied structure,” which is defined in a separate Iowa code section. That cross-referenced provision defines occupied structure as including “any building, structure, appurtenances to buildings and structures, land, water or air vehicle, or similar place” so long as it adapted for sleeping, business, storage, or safekeeping. The government argues that this statute is per se divisible because it sets out alternative, disjunctive places where burglaries can happen. Mathis argues that it is indivisible because of an Iowa Supreme Court decision that squarely holds these different locations merely to constitute different means of committing burglary, rather than as separate elements, which would require jurors to agree unanimously on the particular location where the charged burglary occurred.
During this oral argument, watch Justice Kagan. The government’s argument (based on the Eighth Circuit’s affirmance of Mathis’s sentence) could be seen as an attempt to relitigate Descamps. “The modified categorical approach does not depend on whether a statutory alternative is a ‘means’ or an ‘element’ under state law,” the government asserts in its merits brief. Yet one could easily think that a desire to reinforce the distinction between means and elements was one of the driving forces behind Kagan’s majority opinion in Descamps. The United States Court of Appeals for the Ninth Circuit, sitting en banc, had issued a decision in the 2011 case of United States v. Aguila-Montes de Oca, in which it sought to portray the distinction between means and elements as arbitrary and manipulable. Aguila-Montes thus approved broad use of the MCA throughout the Ninth Circuit. Descamps expressly disapproved Aguila-Montes and its reasoning in what appeared to be a clear attempt to clamp down on rampant abuse of the MCA.
At the same time, the government decries Mathis’s argument that state case law controls the divisibility determination. State supreme courts do not often opine on whether jury unanimity is required as to alternative things enumerated in statutes because the question seldom has any impact on whether the defendant was properly convicted. That the Iowa Supreme Court had decided a case directly on point was highly unusual, the government points out. In a footnote, the government concedes that its research turned up three decisions by appellate courts in Washington and South Carolina that could be construed as guidance on the question of burglary statute divisibility, but none directly on point.
Mathis cites cases for the proposition that state supreme courts (and not federal courts) are the ultimate arbiters of the meaning of state law. It will be interesting to see whether the Justices ask the government how its position can be squared with these precedents. It is certainly true that the question of divisibility is formally one of federal law, but because Descamps tethers divisibility to the elements of state statutes, it is hard to see how state case law could be irrelevant. The government finesses this point by saying that the term “elements” simply means “statutory definitions,” but what justifies federal courts in deciding for themselves what state statutes mean in the face of contrary state court interpretations? Indeed, the Justices could decide that cooperative judicial federalism counsels in favor of letting state supreme courts decide the elements of state criminal statutes in order to give the states some control over when their convictions will carry further federal consequences such as mandatory minimum sentences or deportation of long-time permanent residents.
Another thing to watch during the argument is whether the Justices ask about the Court’s failure to show any interest in state case law during its divisibility discussions in Taylor, Shepard, and Descamps – a fact that the government takes as proof that divisibility requires no such inquiry. Moreover, as the government correctly points out, the Court “has repeatedly provided an example to illustrate divisibility, and that example is just like [Mathis’s] case.” In each of its ACCA burglary decisions, the Court hypothesized a state burglary statute that prohibits unlawful entry into an automobile as well as a building – and assumed it to be divisible. It does seem likely that, if the Court were ultimately to agree with Mathis, it would have to somehow explain away hypotheticals assuming divisibility in its prior decisions.