Divisibility Redux "alternatively Phrased Statutes" and State Law in the Post-mathis Categorical Approach

• Publication year: 2019

Rebecca Sharpless and Elizabeth Montano^*

Abstract: The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court's immigration and federal recidivist sentencing docket. While the primary questions about how to apply the approach have been resolved, many adjudicators and practitioners still find the categorical approach vexing and difficult to apply. A major source of confusion arises from the "modified categorical" approach and what the Supreme Court in Mathis v. United States has called "alternatively phrased statutes," which use disjunctive language or list alternatives. It is often unclear whether these statutes describe different means of committing a single crime, elements of distinct offenses, or, in the case of statutes with more than two alternatives, some combination of both means and elements. This article begins by explaining the Mathis Court's ruling that state law is the primary source to consider in the means versus elements analysis of alternately phrased statutes in the modified categorical approach. The article then highlights common mistakes made in the post-Mathis federal court jurisprudence when applying the means versus elements test.

Introduction

The categorical approach, a once obscure doctrine, now dominates the U.S. Supreme Court's immigration and federal recidivist sentencing docket. Over the past nine years, the Supreme Court has issued ten decisions clarifying the categorical approach, with seven of them resulting in victories for the immigrant or criminal defendant.¹ Under the methodology, courts and other adjudicators must rely only on the legal elements of a conviction to categorize the offense under immigration law and federal sentencing enhancements based on recidivism.² Grounded in the notion that the federal consequence—removal or a longer criminal sentence—must "be based only on what a jury 'necessarily found,'" the approach forbids adjudicators from relying on facts that were extraneous to criminal guilt.³

The categorical approach has systematized and added rigor to analyses of the immigration consequences of criminal offenses, as well as federal recidivist sentencing.⁴ Although the primary questions about how to apply the approach have been resolved, many adjudicators and practitioners still find the categorical approach vexing and difficult to apply.⁵ A major source of confusion arises from what the Supreme Court has called "alternatively phrased statutes."⁶ These statutes use disjunctive language or list alternatives, creating ambiguity about whether they describe different means of committing a single crime, elements of distinct offenses, or, in the case of statutes with more than two alternatives, some combination of both means and elements.

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For example, a Florida drug statute states, in relevant part: "a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance."⁷ This statute uses disjunctive language and lists six different alternatives. These alternatives could describe six different means of committing one crime, elements of six separate and distinct crimes, or a mixture of both.⁸ Use of the categorical approach on alternatively phrased statutes such as this Florida statute has resulted in confusion and inconsistency among adjudicators.

The Supreme Court in Mathis v. United States underscored the importance of discerning whether statutory alternatives are means or elements when applying the categorical approach.⁹ If, on the one hand, the relevant statutory language describes different factual ways of committing a single offense, the statute is indivisible. If an indivisible statute is broader than the federal definition that triggers federal consequences, the conviction does not trigger the consequences and the categorical analysis is complete.¹⁰ On the other hand, if the statute describes the elements of two or more distinct offenses, the statute is divisible.¹¹ When a divisible statute is broader than the federal definition, the analysis moves to the "modified" categorical approach,¹² under which the adjudicator can consider the record of conviction to determine which of the alternatives was the offense of conviction and then compare the elements of the offense to the federal definition.¹³

In Mathis, the Court settled a circuit split regarding the methodology for determining whether or not an alternatively phrased statute is divisible. In doing so, the Court overruled circuit precedent holding that any statute phrased in the alternative was divisible such that review of the record of conviction under the modified categorical approach could occur.¹⁴ The Court explained that the "threshold inquiry" when faced with an alternatively phrased statute is to determine whether the listed alternatives constitute elements, means, or some of each.¹⁵ To do so, adjudicators must determine whether the listed alternatives are elements, which constitute separate and distinct crimes, or means, which constitute various factual means of committing a single crime.¹⁶ "Elements" are the "constituent parts of a crime's legal definition" that the "jury must find beyond a reasonable doubt to convict the defendant."¹⁷ By contrast, factual means are "mere real-world things," "circumstances," or "events having no legal effect or consequence" that need not "be found by a jury nor admitted by a defendant."¹⁸

When a conviction is a state offense, Mathis dictates that state law controls whether the statute of conviction contains means, elements, or some of each.¹⁹ The accuracy of this legal analysis hinges on thorough research into the law of the convicting jurisdiction, which often involves delving into complex areas of the law in which the means-versus-elements distinction surfaces, including double jeopardy, state sentencing enhancements, and the "one act, one crime" rule. Even mildly incomplete research into state law can lead to an incorrect conclusion about whether a statutory alternative is a means or an element.

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A further challenge stems from the Mathis Court's suggestion in dicta that courts can "peek" at the record of conviction if state law does not answer whether the alternately phrased statute is indivisible or divisible.²⁰ As explained below, this suggestion not only contradicts the holding and reasoning of Mathis, but it breaks from well-established precedent that an adjudicator can only look to the record of conviction when the statute of conviction is both broader than the generic federal offense and divisible, such that the modified categorical approach applies.²¹ Courts have struggled to determine when a "peek" is permissible and what parameters govern the peek.

This article begins by explaining the Mathis ruling that state law is the primary source to consider in the means-versus-elements analysis of alternately phrased statutes. This article then analyzes common mistakes found in post-Mathis federal court jurisprudence when applying the means-versus-elements test. Each section describes the error, illustrates it in judicial opinions, and then points to examples of the correct analysis.

A single case may simultaneously serve as an example of one type of error and, with respect to a different error, a model of correct reasoning. This phenomenon illustrates the difficulty of applying the divisibility analysis in practice. This article's mapping of mistakes will assist practitioners and adjudicators—including U.S. Citizenship and Immigration Services examiners, immigration judges, the Board of Immigration Appeals, and federal courts— to steer clear of common pitfalls when applying the categorical approach in immigration and federal sentencing cases.

Error #1: Relying on State Law with No "Definitive Answer"

The Supreme Court held in Mathis that the threshold elements-versus-means inquiry in cases involving state offenses requires looking to state law.²² Adjudicators must thoroughly research state law to see if it "definitively answers" the legal question regarding divisibility.²³ State law "definitively answer[s]" the threshold "elements or means" inquiry only if the highest court of the state has issued an opinion that directly addresses whether juror unanimity among the relevant statutory alternatives is required.²⁴ In the absence of definitive state authority establishing that a statute is divisible, the ambiguity must be resolved in favor of the immigrant or defendant and the statute must be treated as indivisible.

The inquiry in Mathis was "easy" because the Iowa Supreme Court provided a clear answer to whether the relevant alternatives in the burglary statute at issue were divisible.²⁵ As the Fifth Circuit has recognized, the "Mathis Court did not send us on a search for state cases that describe a disjunctively phrased statute using either the word 'elements' or 'means.' It demanded certainty. It demanded that we find . . . decisions considering whether jury unanimity is required between statutory alternatives."²⁶

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Mathis satisfied this demand for certainty because the Court relied on an Iowa Supreme Court decision that had squarely addressed whether juror unanimity was required. In State v. Duncan,²⁷ the Iowa Supreme Court affirmed the defendant's second-degree burglary conviction and held that the jury was not required to unanimously agree regarding "the mode of commission of the crime" because the different locations listed in the statute were "alternative method[s] of committing a single crime[.]"²⁸ The Mathis Court used Duncans holding to find the Iowa burglary statute indivisible because "[t]he listed premises in Iowa's burglary law . . . [we]re 'alternative methods' of committing one offense, so that a jury need not agree whether the burgled location was a building, other structure, or vehicle."²⁹

The Court optimistically predicted that the elements-versus-means threshold inquiry would be "easy" in "many other[]" cases because state law...