Recidivist Enhancements after Descamps June 2014 Brett G. Sweitzer Assistant Federal Defender Chief 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 offense crime of violence firearms offense alien smuggling offense aggravated felony

When Does this Come Up? Most common situations: • 18 U.S.C. ∫ 924(e): violent felony ∫ 4B1.4 serious drug offense [priors do not time-out] • 8 U.S.C. ∫ 1326(b): aggravated felony

Quick Review Was 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 Review Formal 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 Review Modified 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 Review Modified 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 Review Modified 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 Review Modified Categorical Approach • WHAT ARE THE SHEPARD DOCS? TRIAL: (1) charging document -- information/indictment -- maybe criminal complaint, but not applications and the like PLUS (2) jury instructions

Quick Review Modified Categorical Approach • WHAT ARE THE SHEPARD DOCS? PLEA: (1) charging document PLUS (2) plea agreement/colloquy OR (3) other comparable judicial records of sufficient reliability

Quick Review Modified 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 One ∙ “has as an element . . .” Identify 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 Two Identify 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 Descamps 133 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 Descamps Gov’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 Descamps Actually: 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