Recidivist Enhancements after Descamps June 2014

1. Recidivist Enhancements after DescampsJune 2014 Brett G. Sweitzer Assistant Federal Defender Chief of Appeals Federal Community Defender Office, E.D. Pa.

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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”

8. 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”

9. 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

10. 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

11. 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!

12. Step One 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)

13. 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

14. 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!)

15. 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

16. 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

17. 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

18. 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 ofsatisfying a single element, rather than alternative elements -- TEST: whether juror unanimity required

19. 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

20. 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

21. 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 bancden’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