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Opinion analysis: Victory for the “categorical approach” in immigration and federal criminal sentencing – but for how long?

Immigration lawyers, reeling from yesterday’s defeat in United States v. Texas, may today be finding some solace in Mathis v. United States, handed down at the same time. Justice Elena Kagan’s majority opinion in Mathis resoundingly endorsed the “categorical approach” to determining which prior convictions count toward enhanced sentences for federal crimes (and therefore for removal as well). Immigration and criminal defense lawyers cherish the categorical approach because it generally prevents courts from taking into account many facts that would hurt their clients in removal and sentencing proceedings. But considering the concurring and dissenting opinions in Mathis, it is not clear how much solace is justified.

As I predicted in my argument analysis, Kagan wrote for a majority to reverse a decision by the U.S. Court of Appeals for the Eighth Circuit to the effect that the categorical approach regards the “elements” of criminal statutes as interchangeable with the “means” of violating criminal statutes. As I also predicted, Kagan and her fellow justices in yesterday’s majority found that proposition directly contradicted by Kagan’s 2013 opinion for the Court in Descamps v. United States. What I did not predict was that there would only be five justices in the majority, and that the swing vote – Justice Anthony Kennedy – would write a concurrence saying that the categorical approach was currently unworkable and that he would consider abandoning it “in an appropriate case” if Congress did not intervene.

Richard Mathis pleaded guilty in federal court to being a felon in possession of a firearm. The government sought a fifteen-year mandatory minimum sentence based on Mathis’s five prior convictions for burglary in Iowa state court. Under the federal law authorizing such mandatory minimum sentences, the Armed Career Criminal Act (ACCA), three convictions for “violent felonies” suffice. Violent felony is further defined as including “burglary.” If one were to stop the analysis there, Mathis would be in trouble.

But the parameters of the law of burglary vary widely from state to state, and in Taylor v. United States, the U.S. Supreme Court limited the term “burglary” to “generic” burglary – unlawful entry into a building or other fixed structure. Breaking into a car, boat, or airplane wouldn’t count. Taylor further made the fateful determination that the analysis of whether a prior conviction for “burglary” satisfied the generic definition of burglary was to be performed on a “categorical” basis. That is, the sentencing court was not to look at the actual facts of the case to decide whether the defendant’s conduct constituted generic burglary; rather, the court was to analyze the statute under which he was convicted to determine whether it “categorically” qualified as generic burglary.

Mathis, it seemed, was in luck. Even though documents in the record made it clear that he had unlawfully entered houses, Iowa’s burglary statute did not categorically qualify as burglary because it included entry into a “land, water, or air vehicle.” Therefore, he argued, his Iowa burglary convictions could not support a mandatory minimum sentence.

The lower federal courts, however, disagreed with Mathis, insisting that they were permitted to look at the facts in the record to find that his entries were into houses and not into “land, water, or air vehicles.” Mathis, citing Descamps and previous cases, insisted that they could only look at the underlying facts if the statutory terms “land, water, or air vehicle” constituted elements of burglary and not merely alternative means of committing burglary. The Eighth Circuit panel explicitly stated that it did not matter whether those terms represented elements or means, which put it in conflict with two circuits and in agreement with two others.

Yesterday’s decision squarely resolves the conflict in favor of those circuits holding that lower federal courts may only look at the facts if the non-generic terms in a statute constitute elements, and not merely alternative means of committing the crime. The Iowa burglary statute’s terms “land, water, or air vehicle” constituted means, not elements, the Court concluded. If this were not obvious from the text of the statute, it was confirmed by an Iowa Supreme Court decision squarely on point. Therefore, the lower courts were not permitted to look at the facts to find that Mathis’s convictions were based on entries into fixed structures. They may not count toward a mandatory minimum sentence under the ACCA.

The Court cited numerous previous decisions for the proposition that, under the ACCA, it is only formal statutory elements that matter, not the “brute facts” making up the defendant’s actual conduct, and not factual examples (of how the crime might be committed) that the legislature saw fit to include in the statutory text. “Our precedents make this a straightforward case,” Kagan wrote. The most recent of those precedents, of course, is Descamps, which is only three years old, and which was an eight-to-one decision.

It is a bit surprising that two of the Justices in that Descamps majority, Stephen Breyer and Ruth Bader Ginsburg, dissented in Mathis. “I, of course, see that there is a distinction between means and elements in the abstract, but – for sentencing purposes – I believe that it is a distinction without a difference,” wrote Breyer, joined by Ginsburg. “The majority’s approach, I fear, is not practical.” There is no single, reliable litmus test for whether any particular statutory term constitutes an element or a means. In Mathis’s case, there was the fortuity of an Iowa Supreme Court decision on point. But that is rare. Despite Breyer’s perfunctory argument that the statutes involved in Descamps and Mathis were textually different, it appears that the intervening three years of practice have convinced him that Descamps had been too doctrinaire after all.

Having lost Breyer and Ginsburg, it was incumbent upon Kagan to hold in the remaining four members of her Descamps majority – Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor. Thomas was never in play. He indeed would have gone much farther than the majority and would simply have overruled the 1998 decision that allows judges to find the fact of a prior conviction at all. Nor, based on oral argument, was there any reason to think that Roberts or Sotomayor would jump ship. Kennedy’s concurrence, however, suggests that he may have wavered before joining the majority.

The decision in Mathis’s favor was required by the precedents, he said, which “Congress remains free to overturn.” Kennedy left no doubt what he would do. “[T]oday’s decision is a stark illustration of the arbitrary and inequitable results produced by applying an elements based approach to this sentencing scheme,” he wrote. Notably, Kennedy went beyond urging Congress to amend the ACCA. “[C]ontinued congressional inaction in the face of a system that each year proves more unworkable should require this Court to revisit its precedent in an appropriate case,” he concluded. This sounds like a warning that if Congress does not act, Kennedy may swing to the dissenters and overrule Mathis – if not Descamps and Taylor as well.

Have the dissenters sold the majority opinion short on its potential to make the elements/means distinction more workable? To be fair, there is a sizable perception gap between the majority and dissenters on how serious the workability problem is now. Even when a state supreme court has not spoken to the elements/means distinction, the statutory text may so speak, as where it authorizes different punishments for different clauses. The majority also pointed to some statutes that specify which facts must be charged (making them elements). Even if state law does not give a clue, “federal judges have another place to look: the record of a prior conviction itself.” Drawing from an opinion by Judge Alex Kozinski of the Ninth Circuit, the Mathis Court stated that a judge can take a “peek at the [record] documents” for the “sole and limited purpose” of determining whether the statutory terms in question are elements or means. This scheme has a sort of Dickensian preciousness to it, given that the limited “peek” is made with an eye to whether the terms constitute elements. If they are elements, then the court can engage in yet another limited peek, this time for the sole purpose of determining under which portion of the statute the defendant was convicted (the “modified categorical approach”).

So the majority simply does not agree with the dissenters that the workability problem with the elements/means distinction is all that serious. Still, Kagan acknowledged that there will be cases where neither state law nor the record gives a sufficient clue about whether the statutory terms in question are elements or means. This, in time, may prove the most important practical point in her opinion. “Of course, such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was convicted of a generic offense,” she stated.

In other words, at the end of the day, the government always bears the burden of showing that a defendant was convicted of a generic offense. If neither state law nor the record provides sufficient evidence that the terms in an overbroad statute constitute elements rather than means, then a conviction pursuant to that statute simply may not count toward removal or a sentence enhancement. If Kagan had been writing in social media instead of in the United States Reports, she might have tweeted: “If in doubt, it’s out.” If anything has a chance to be workable, that does.

Recommended Citation: Evan Lee, Opinion analysis: Victory for the “categorical approach” in immigration and federal criminal sentencing – but for how long?, SCOTUSblog (Jun. 24, 2016, 10:12 AM),