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