Supreme Court Revives the Categorical Approach
By Sarah Bronstein
In Descamps v. United States, No. 11-9540, 570 U.S. ___ (2013), the U.S. Supreme Court reviewed the approach that should be used when determining whether a state criminal offense triggers consequences under federal law. While the issue in this decision was not an issue under the Immigration and Nationality Act, advocates will argue that this decision should be applied in the immigration context to determining whether a ground of inadmissibility or deportability has been implicated by a particular conviction. In its decision dated June 20, 2013, the Supreme Court found that unless a statute is divisible, the fact finder must use the categorical approach and cannot go beyond the language in the statute to determine whether it meets the required definition under federal law. This decision rolls back the erosion of the categorical approach we have seen in recent years and settles a split in the U.S. Courts of Appeals.
The issue in this case was the application of a sentence enhancement under the Armed Career Criminal Act (ACCA) in the criminal trial of the defendant, Mr. Descamps. Under the ACCA, a federal defendant’s sentence can be enhanced if he or she has three prior convictions for “violent felonies” including burglary, arson and extortion. Mr. Descamps had been convicted of burglary under the California Penal Code. Mr. Descamps argued that the categorical approach should be used to determine whether his California burglary conviction constituted a “violent felony” for purposes of the ACCA. The categorical approach mandates that the adjudicator look only to the statute of conviction to determine whether the minimum conduct required under the statute meets the generic definition of the offense. Under the categorical approach, the underlying facts of the case – the conduct that the defendant actually engaged in – are irrelevant to this determination. Mr. Descamps argued that the California statute is broader than the generic definition because it does not include unlawful entry as an element of the offense. His position was that under the categorical approach, the adjudicator’s inquiry should end there with the language of the statute. The lower courts disagreed, and used the modified categorical approach to determine whether the facts in the case met the generic definition of burglary.
When the modified categorical approach can be used has been the subject of a great deal of litigation. Traditionally, the modified categorical approach was reserved for “divisible statutes” – statutes that list several different types of conduct or offenses in the alternative or have multiple subsections. See Shepard v. United States, 544 U.S. 13 (2005). In the case of a divisible statute, the modified categorical approach can be used to determine under which section of the statute the defendant had been convicted by looking at the record of conviction. The record of conviction includes the charging document, the plea agreement, plea colloquy, and jury instructions. In subsequent years, both the Board of Immigration Appeals and certain U.S. courts of appeal have broadened the circumstances in which the modified categorical approach may be used to situations without a divisible statute but where the statute is broader than the generic definition of the offense. See e.g. Matter of Lanferman, 25 I&N Dec. 721 (BIA 2012); United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (en banc).
In Descamps, the Supreme Court rejected the expansion of the modified categorical approach and held that the modified categorical approach does not apply to statutes that contain a single, indivisible set of elements. Applying the categorical approach and looking only at the statute of conviction, the Court found that Mr. Descamps’ California burglary conviction did not meet the generic definition of burglary and therefore could not form the basis of a sentence enhancement under ACCA.
What remains to be seen is how this case will be applied in the immigration context. We will keep you updated as this area of the law continues to develop.