Assessing divisibility in the Armed Career Criminal Act.

• Author: Koehler, Ted

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career Criminal Act--qualifying part of the statute. This Note identifies a split among the circuit courts regarding when a statute is divisible. Under the "formal method," a statute is divisible only when its text specifies qualifying and nonqualifying categories of conduct. By contrast, courts that employ the "functional method" divide a statute if regardless of the statute's text, it is possible to violate the statute in a way that amounts to a "violent felony" and in a way that does not amount to a "violent felony." This Note contends that the text-based "formal method" is more consistent with the Supreme Court's Armed Career Criminal Act jurisprudence, the Sixth Amendment, and the rule of lenity. Finally, it argues that the "formal method" gives Congress the strongest incentive to revise the vague and confusing Armed Career Criminal Act.

TABLE OF CONTENTS INTRODUCTION I. LEGISLATIVE HISTORY OF AND RECENT SUPREME COURT JURISPRUDENCE ON THE ARMED CAREER CRIMINAL ACT A. Legislative History B. Supreme Court Jurisprudence on the ACCA's "Residual Clause" II. THE "CATEGORICAL" AND "MODIFIED CATEGORICAL" APPROACHES TO INTERPRETING ACCA PREDICATE OFFENSES A. The "Categorical Approach": Taylor v. United States. B. The "Modified Categorical Approach"" Shepard v. United States III. ASSESSING DIVISIBILITY: THE "FORMAL" AND "FUNCTIONAL" METHODS OF MOVING FROM THE CATEGORICAL TO THE MODIFIED CATEGORICAL APPROACH A. The "Formal" Method B. The "Functional'" Method IV. THE FORMAL METHOD IS MORE CONSISTENT WITH SUPREME COURT ACCA JURISPRUDENCE A. The Supreme Court Has Provided Implicit Support for the Formal Method B. The Formal Method Is More Consistent with the Supreme Court's Record of Dividing Statutes C. The Functional Method Is Inconsistent with the Categorical Approach V. THE RULE-BASED NATURE OF THE FORMAL METHOD IS MORE FAITHFUL TO APPRENDI V. NEW JERSEY AND THE RULE OE LENITY AND GIVES CONGRESS A STRONG INCENTIVE TO REVISE THE ACCA A. The Functional Method Is Inconsistent with Apprendi v. New Jersey B. The Formal Method Is More Consistent with the Rule of Lenity C. A Rule-Based Approach Provides the Strongest Incentive to Congress to Rewrite the ACCA CONCLUSION INTRODUCTION

More than two decades after its passage, the Armed Career Criminal Act ("ACCA") remains a nagging source of confusion and frustration. The statute mandates a fifteen-year minimum sentence for a felon who is convicted of possessing a firearm and who has three or more previous convictions for a "violent felony" (1) or "crime of violence." (2) It is used to increase the sentences of hundreds of criminal defendants per year. (3) In addition to four specifically enumerated crimes--burglary, arson, extortion, and the use of explosives--the ACCA includes as a "violent felony" any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." (4) This provision is known as the "residual clause."

This broadly worded "residual clause" has attracted substantial attention from the Supreme Court, which has labored to interpret the ACCA five times in as many years and has produced an inconsistent patchwork of decisions. (5) The Justices themselves have described the ACCA's residual clause as "nearly impossible to apply consistently." (6) This difficulty has caused numerous splits among the circuit courts, "the resolution of which could occupy [the Supreme Court] for years." (7) The Court's own efforts to resolve the splits have fared no better, having been criticized as "piecemeal, suspenseful, [and] Scrabble-like." (8) Nor has Congress escaped the critical eye. One Justice labeled the ACCA a "drafting failure," (9) and at least two Justices have urged Congress to rewrite the statute from square one. (10)

Much of the difficulty that the courts have faced stems from their attempts to navigate the two approaches to applying the ACCA's residual clause: the "categorical approach" and the "modified categorical approach,' When a court considers an ACCA residual-clause case, it typically employs the categorical approach, in which it looks only at the fact that a defendant was convicted of a particular offense and not at how the defendant actually committed the crime. (11) The court then asks whether the conduct encompassed by the elements of the offense presents a serious potential risk of physical injury to another. (12) But when the statute the defendant violated includes multiple categories of conduct, some of which could amount to a crime of violence and some of which could not, the court may use the "modified categorical approach." Under this approach, the court may consult a limited set of documents to determine whether the jury convicted the defendant of (or whether the defendant pleaded to) violating the part of the statute that would constitute a "violent felony." (13) These two approaches are well-established parts of the ACCA inquiry. But there is substantially less agreement about when to move from the categorical approach to the modified categorical approach.

Whether a court employs the modified categorical approach turns on its assessment of whether a statute is "divisible." A statute is divisible if it contains multiple categories of offense conduct, such that a court may "divide" the statute into separate categories for the purpose of deciding whether the defendant's prior conviction will be counted as a predicate offense. One group of courts uses what I label the "formal method," (14) which treats a statute as divisible only if the statute's text articulates multiple categories of conduct. (15) A second group uses the "functional method," which divides the statute if the crime for which the defendant was convicted could, as a practical matter, be committed in multiple ways, regardless of the statute's text. (16) The classification of a prior conviction--the fifteen-year mandatory minimum sentence resulting from the application of the enhancement--may turn on which method the sentencing court employs. Yet courts and commentators have not recognized the existence of the two methods and the uneven application of the residual clause that results from their use. (17)

This Note argues that sentencing courts should utilize the modified categorical approach only when appropriate under the formal method. In other words, the modified categorical approach should be used only when the text of the relevant statute specifies multiple categories of conduct, of which only some would qualify as a "crime of violence" under the ACCA's residual clause. Part I explains the legislative history and recent Supreme Court jurisprudence surrounding the ACCA. Part II describes the categorical and modified categorical approaches to analyzing predicate offenses. Part III details the circuit courts' formal and functional methods of assessing divisibility. Part IV argues that the formal method is more consistent with the categorical approach and the Supreme Court's ACCA jurisprudence. Part V analogizes the formal and functional methods to the familiar "rule versus standard" distinction and suggests that a formal, rule-based method is more likely to avoid Sixth Amendment concerns, is faithful to the rule of lenity, and gives Congress a strong incentive to revise the ACCA.

1. LEGISLATIVE HISTORY OF AND RECENT SUPREME COURT JURISPRUDENCE ON THE ARMED CAREER CRIMINAL ACT

   Federal law prohibits previously convicted felons from possessing a firearm. (18) Felons who violate this provision receive a maximum sentence of ten years. (19) If, however, a felon has three or more prior convictions for an ACCA-qualifying "violent felony" or "serious drug offense," that felon will face a more severe fifteen-year mandatory minimum term of imprisonment. (20) The ACCA defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that

   (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

   (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. (21)

   Much of the difficulty that sentencing courts have faced in applying the ACCA has stemmed from the "otherwise involves" language--the language italicized above in 18 U.S.C. [section] 924(e)(2)(B)(ii)--which courts have termed the "residual clause." (22) The confusion over the scope of the clause stems, at least in part, from its opaque legislative history.

   1. Legislative History

      Responding to the "unmistakable" conclusion that a "small group [of criminals] was responsible for an extraordinarily large volume of crime," Congress enacted the ACCA in 1984. (23) Based on studies and testimony from local prosecutors regarding the dangerousness of recidivist offenders, Congress intended for the statute to protect citizens from violent criminals by incarcerating those criminals. (24) As the statute's name implies, Congress aimed the statute at "career criminals" whose "full-time occupation is crime for profit" (25) and who therefore present a serious risk of physical injury to the public when they possess a weapon. Although Congress's general motivation for enacting the statute is plain, its rationale for enumerating the four qualifying predicate offenses, as...