TABLE OF CONTENTS INTRODUCTION 421 I. BACKGROUND 423 A. Indivisible v. Divisible Statutes 423 B. Categorical Approach 426 C. Modified Categorical Approach 426 II. WHEN A STATUTE IS DIVISIBLE AND WHEN IT IS NOT 429 A. Correcting Lower Court Applications of the Modified Approach: Descamps 430 B. When a Statute Lists Means or Elements: Id. at his 434 III. DISCUSSION 439 CONCLUSION 442 INTRODUCTION
The Armed Career Criminal Act (hereinafter "ACCA") provides for higher penalties if an offender has three previous convictions for a "violent felony."' In the immigration context, any alien, including a lawful permanent resident, is deportable if he or she is convicted of an "aggravated felony." (2) Both of these felony categories include state criminal convictions for the crimes that fall into these categories, like robbery, burglary, or arson. (3) Not all state criminal statutes are the same, however, and the elements of a given crime can vary across jurisdictions. (4)
This patchwork of definitions leads to some obvious difficulties for federal courts when it comes to determining whether an offender's previous convictions fit into these "violent" or "aggravated" categories and are thus predicates for enhanced criminal penalties or removal. (5) To help provide guidance in this area, the Supreme Court developed the "categorical approach," which requires any state criminal statute to be identical to or narrower in scope than the generic version. (6) There are times, however, where the elements of a state crime are written in a way that could criminalize two different courses of conduct, one that is a generic crime and one that is not. In these situations, the Supreme Court created the "modified categorical approach." (7) This approach allows a sentencing court, or an immigration judge, to look beyond the bare elements of the crime to a limited set of documents to determine whether the defendant or alien was convicted of the generic offense. (8)
While these approaches (and when to use them) are simple enough to understand in the abstract, they are difficult to apply in practice, often leading to inconsistent results among the lower federal courts. (9) Two recent Supreme Court cases, Descamps v. United States (10) and Id. at his v. United States, (11) have attempted to resolve these issues in order to clarify when it is appropriate to use the modified approach while also giving clearer guidance to the lower courts. Yet, some questions and ambiguities still remain.
Part I of this comment will explain the difference between indivisible and divisible statutes, which is the basis for this particular issue of statutory interpretation. This part will also explain the categorical and modified categorical approaches to statutory interpretation to illustrate why the Supreme Court created these categories and how they have evolved over time. Part II will examine the Court's recent attempts to clarify and give guidance on these issues in Descamps and Id. at his. Part III will discuss the issues that still remain after Id. at his and what the Court could possibly do (and perhaps should do) next.
State criminal statutes can qualify as predicate offenses under federal law if the state criminal statute qualifies as a generic offense. (12) State criminal statutes that correspond to a majority of state criminal codes roughly correspond with generic offenses. (13) For example, the ACCA enhances sentences for defendants with three prior violent felony convictions. (14) The statute defines a "violent felony" as a crime that is both punishable by a year of imprisonment and "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (15) To qualify for violent felony status, a state criminal statute must contain the roughly similar elements as the generic offense. (16)
Complicating matters is that some statutes criminalize different types of conduct within the same section, so it is often unclear if the defendant was convicted of a generic offense. To determine whether a specific state criminal statute, written in the disjunctive, is a generic offense, the Supreme Court has created a two-step analysis: first, the sentencing court must determine if the offense is made up of a single set of "indivisible" elements, or if it has "divisible," alternative elements. If the statute is indivisible, the court can only use the "categorical" approach, where the court evaluates only the elements of the conviction statute to see if it is a generic offense. If the statute is divisible, the court uses the "modified categorical" approach, where it can look to a limited set of documents from the earlier conviction to determine whether the statute is a generic offense.
INDIVISIBLE V. DIVISIBLE STATUTES
As noted above, indivisible statutes are statutes that require a single set of elements to be met in order to convict a defendant of a crime, and divisible statutes provide that a defendant can be convicted of a crime without one or more elements being met. The majority of criminal statutes the federal courts must evaluate are written as indivisible, while divisible statutes are rare. (17)
The distinction between the two statutes is best shown by example. Imagine a statute defining murder as "unlawful killing with intent to kill." (18) This statute has three elements: (1) someone is killed by another's actions; (2) the killing is unlawful (i.e., without justification or excuse); and (3) the actor intended to kill. An individual is then charged with shooting a gun at two people standing next to each other, killing one of them.
Here, the first two elements of the hypothetical statute are met: someone was killed by another's unlawful actions. As for the last element, two members of the jury could reasonably disagree who the defendant was aiming for. One juror thinks the defendant meant to shoot the victim while the other juror thinks the defendant meant to shoot the survivor and missed. In the end, this disagreement does not matter because both jurors agree that the shooter had the requisite intent as required by the element of the statute. (19) The statute is indivisible because all elements need to be met for an individual to be guilty.
For most state criminal statutes, when judges interpret them to see if they match a generic statute, the means used by a defendant to meet an element are irrelevant. (20) If the above hypothetical murder statute added another element to define murder as "unlawful killing with intent to kill by use of a weapon," it would not matter if the defendant used a knife, a gun, or a bike chain; as long as a weapon is used, the element would be met. (21) In the end, a prosecutor must prove a single group of elements for a jury to convict a defendant of the crime. (22)
The distinctive (but not dispositive) characteristic of divisible statutes is that they have an element written in the alternative. The crime itself has the same name attached to it, but the defendant need not satisfy every element listed to have committed the crime. The murder statute described above would become divisible if revised to say murder is "unlawful killing with intent to kill by use of a weapon in a car or in a home." Now the statutory elements are as follows: (1) someone was killed; (2) the killing was not permitted by law; (3) the killing was accomplished with a weapon; (4) the actor intended to kill; and (5) the killing was either in a (a) car or (b) home. This is what the Court meant when it referred to a divisible statute as "a [single] statutory provision that covers several different generic crimes." (23) The defendant can be guilty of murder whether he snuck into the victim's house and shot him or strangled him from the backseat of the victim's car with a piano wire. (24) A prosecutor need not prove that the defendant killed in both the car and the home to satisfy the last element. The alternative means at issue here would be the gun or the piano wire to commit the murder since either can be used as a weapon. The alternative element is the location of the murder. (25)
The distinction between indivisible and divisible statutes has a major effect on the way a court determines whether a state criminal statute is the same as a generic offense, and thus, whether the defendant's prior conviction carries ACCA or immigration consequences. Interpreting state criminal statutes to see if they are consistent with federal criminal statutes that would be predicates for sentence enhancement or removal is not as easy as looking at the labels affixed to each statute. (26) Thus, the Supreme Court, out of necessity, developed two different approaches to help resolve this issue.
In Taylor v. United States, the Supreme Court established the "formal categorical approach," through which courts interpret convictions under state criminal statutes as potential predicates for federal sentence enhancement." (27) The Court held that sentencing courts may only look at elements of the prior offense and not the facts of the underlying conviction. (28) If a state criminal statute is the same as (or narrower than) the generic crime, then it is a "violent felony" as defined by the ACCA. (29) Even if the conviction statute prohibits conduct that is narrower than a generic crime, it can be a violent felony. (30) However, if the state criminal statute criminalizes conduct that is broader than the generic crime, it cannot count as a violent felony as defined by the ACCA, even if the facts would show that the crime was committed according to the generic requirements. (31) Therefore, when sentencing, courts are only allowed to look to the elements of the statute and not the facts of the underlying case. (32)
MODIFIED CATEGORICAL APPROACH (33)
Taylor recognized that there were going to be cases where looking at "the charging paper and jury...