Argument preview: Category is: the categorical approach
on Jan 14, 2020 at 12:45 pm
Shular v. United States is a case about the reach of the now infamous categorical approach to the Armed Career Criminal Act. ACCA imposes higher sentences on repeat offenders who are convicted of gun-related crimes. Under the categorical approach, courts look to the elements of the crime rather than a defendant’s actual conduct to decide whether the prior conviction triggers ACCA’s higher sentences.
Eddie Lee Shular pleaded guilty to being a felon in possession of a firearm under 18 U.S.C. § 922(g). Shular had agreed to hold his mother’s unloaded firearm while she rebuilt her home. Typically, the felon-in-possession offense carries a term of imprisonment of zero to 10 years. But Section 924(e)(1) of the ACCA increases that term to 15 years to life if the defendant has three or more previous convictions for “a violent felony or a serious drug offense.”
Most of the Supreme Court’s ACCA cases address the meaning of ACCA’s various definitions of “violent felony.” But Shular’s case concerns the meaning of an ACCA provision that defines “serious drug offense.” In Section 924(e)(2)(A)(ii), Congress defined a “serious drug offense” to include an “offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance … for which a maximum term of imprisonment of ten years or more is prescribed by law.”
The probation office determined that Shular’s prior Florida convictions were serious drug offenses and recommended that Shular be sentenced under the ACCA. Shular objected, arguing that Congress defined “serious drug offense” as a series of generic offenses (manufacturing, distributing or possessing with intent) that do not match Florida’s drug offense. (Specifically, Shular argued that the generic definitions of the drug offenses contain mens rea, or criminal intent, elements, while Florida’s drug laws do not.)
The district court agreed with the probation office, and the U.S. Court of Appeals for the 11th Circuit affirmed. Relying on a prior case, the court of appeals reasoned that, under Section 924(e)(2)(A)(ii), a court need only determine that a state offense involved conduct that Section 924(e)(2)(A) describes. Shular wanted the court to measure the elements of his state offenses against generic definitions of the offenses listed in the provision.
So what inquiry does Section 924(e)(2)(A)(ii) demand? Shular’s opening brief is devoted to arguing that Section 924(e)(2)(A)(ii) requires the “categorical approach.” But the government points out that the categorical approach could be used to resolve two different issues—first, to define a defendant’s prior conviction, and second, as the point of comparison to a defendant’s prior conviction. The government concedes that the categorical approach applies to the first issue, but argues that it does not apply to the second. So some of Shular’s opening brief focuses on a question that is not really disputed in this case.
The government maintains that a state offense “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute” a controlled substance whenever those activities are necessarily part of the conduct that the state offense describes. The government notes that the ordinary meaning of “involve” is “to include as a necessary circumstance.” The government also explains that the court appeared to embrace this definition of “involves” in Kawashima v. Holder. Kawashima addressed 8 U.S.C. § 1101(a)(43)(M)(i), which defined an aggravated felony as an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Kawashima applied that provision by identifying the elements of the defendant’s crime of conviction and asking whether, in light of those elements, the defendant committed a crime that involved fraudulent or deceitful conduct. Kawashima did not compare the defendant’s conviction to a generic offense.
Shular responds that the government is asking the court to make Section 924(e)(2)(A)(ii) into a version of the ACCA’s elements clause. The elements clause defines a violent felony as a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Courts interpret the elements clause by doing something like what the government is urging the Supreme Court to do under Section 924(e)(2)(A)(ii)—ascertaining whether the elements of a state offense involve particular conduct (the use of force), as opposed to measuring the elements of a state offense against a generic federal crime.
But, Shular points out, Section 924(e)(2)(A)(ii) is worded differently from the elements clause, and so Congress did not want courts to interpret it the same way they interpret the elements clause.
The government insists that its interpretation of Section 924(e)(2)(A)(ii) does not amount to an elements-clause analysis because Section 924(e)(2)(A)(ii) does not require a court to ask whether the elements of a state offense include manufacturing or distributing a controlled substance. Rather, the government argues, it requires courts to ask whether the elements of a state offense amount to conduct that constitutes manufacturing or distributing or possessing with intent to distribute or manufacture. For example, the government notes that under some state laws, the amount of a controlled substance may be conclusive evidence that a defendant intended to distribute a substance, even though an intent to distribute is not technically an element of the state offense. The government maintains that under its approach, that state offense would involve possessing with intent to distribute, whereas under an elements-clause analysis, it would not. But Shular points out in his reply that some courts have applied the elements clause in exactly the same way that the government is urging the court to interpret Section 924(e)(2)(A)(ii).
The government responds that Shular is trying to make Section 924(e)(2)(A)(ii) into another ACCA provision—the enumerated-offense clause. The enumerated-offense clause defines a violent felony as a crime that “is burglary, arson, or extortion,” whereas Section 924(e)(2)(A)(ii) defines a serious drug offense as a crime “involving manufacturing, distributing, or possessing.” And while the enumerated-offense clause requires courts to construct generic definitions of offenses, the government maintains that Section 924(e)(2)(A)(ii), which is worded differently, does not.
Shular rejects the government’s suggestion that Congress’ use of the word “involving” rather than “is” in Section 924(e)(2)(A)(ii) indicates that Congress did not want courts to compare a defendant’s conviction to generic offenses under the statute. He maintains that Congress could not have used the word “is” in Section 924(e)(2)(A)(ii), because the enumerated-offense clause lists predicate offenses that were common law offenses, whereas section 924(e)(2)(A)(ii) does not. Besides, Shular notes, Congress modeled Section 924(e)(2)(A)(ii) on a provision of the Racketeer Influenced and Corruption Organizations Act that defined racketeering activity as “any act or threat involving murder” or other crimes. And the Supreme Court has previously applied that RICO provision by asking whether the elements of a defendant’s offense match the elements of the generic crimes listed in RICO.
From the briefing, it is clear that the government’s definition would greatly expand the scope of the ACCA. The government’s approach to Section 924(e)(2)(A)(ii) would jettison the few limitations inherent in the traditional categorical approach. Under the traditional approach, a prior offense does not count as an ACCA predicate unless the offense’s elements match (or are narrower than) the elements of a generic offense. But under the government’s approach, a prior offense counts as an ACCA predicate so long as the offense’s elements include conduct that Section 924(e)(2)(A)(ii) describes. If the government prevailed, it would no longer be a defense that a state crime sweeps more broadly than the crimes described in the ACCA.
Shular’s own case makes clear the stakes of this argument. Without the ACCA enhancement, Shular’s sentencing guidelines range was 45-57 months; with the enhancement, the range was 188-235 months. As many of the amicus briefs filed on Shular’s behalf note, the ACCA dramatically lengthens defendants’ sentences and produces severe racial disparities in sentences.
The government points out that its interpretation of Section 924(e)(2)(A)(ii) would avoid many of the difficulties that result from the categorical approach. Courts would not have to construct generic offenses, and the application of the ACCA would not turn on arbitrary differences in how states define particular offenses.
Shular responds that the government’s interpretation would produce its own oddity—the federal crimes that Congress defined as serious drug offenses under Section 924(e)(2)(A)(i) all contain a mens rea element, while the government’s proposed interpretation of Section 924(e)(2)(A)(ii) would mean that no mens rea is required for the state predicates. So, under the government’s view, a defendant could receive an ACCA enhancement for conduct that is not even criminal under federal law. But why would Congress have labeled that conduct a serious drug offense?
Shular also attempts to show that the government’s interpretation is unwieldy and has resulted in its own speculative inquiries. Relying on the government’s interpretation, several courts of appeals have concluded that state offenses “involve[e]” the conduct described in Section 924(e)(2)(A)(ii) if the state offense amounts to conduct that is related to, or otherwise entailed in, the conduct described there. Using that approach, courts have concluded that purchasing drugs or merely possessing them can “involv[e] manufacturing, distributing, or possessing” with intent to manufacture or distribute. The government responds that those broader interpretations of “involving” “are not present here.”
There is a good amount of text and structure for the Supreme Court to work with in this case. But the court may be interested in the implications of both sides’ interpretations. Shular is offering the court a tried-and-true approach that has come under fire in recent years. The government is asking the court to venture into new terrain, but also does not want the court to consider some of the harder questions and greyer areas that might result from the government’s approach. Oral argument could allow the justices to test out how the government’s proposed interpretation might work.