On Tuesday, April 26,
the United States Supreme Court will hear oral argument in Mathis v. United States, likely to
be the Term’s most important federal sentencing case, and its second-most
important immigration case after United States v. Texas.
It
involves the surprisingly complicated question of how to determine which state
convictions qualify for federal mandatory minimum sentences and for removal
under immigration law. To understand why the case is so important, and why the
issue of which convictions qualify is so bewildering, some investment in the
background is essential.
Back in the 1980s, when the
federal government seriously got in the business of meting out long sentencing
enhancements based on prior state convictions for “violent felonies,” and
deporting green-card holders for a fast-growing list of “aggravated felonies,”
it all seemed so simple. A burglary, for example, was explicitly listed as a
violent felony for sentencing purposes, and as an aggravated felony under
immigration law. Why would there ever be an issue as to whether any given
burglary would qualify in either context?
But the definition of burglary
varies from state to state, and the Court soon decided that Congress could not
have wanted federal courts simply to go by whatever various states called
“burglary.” So, in the 1990 case of Taylor v. United States, the Court instead held that
burglary (and, critically, most other crimes listed in the federal sentencing
and immigration statutes) would be gauged on a “categorical” basis.
As a matter
of federal common law, the Court set forth a generic federal definition of
burglary with essential elements. If the essential elements of a state burglary
statute were necessarily subsumed within the elements of general federal
burglary, then all convictions under that state statute would qualify. But if a
person could be convicted of burglary under a given state statute for conduct
outside Taylor’s generic federal standard, then that state
statute was categoricallydisqualified from
serving as the basis for federal sentencing or immigration consequences.
Note that this categorical
disqualification would take place even if the convicted individual had actually
engaged in conduct that qualified under the generic federal standard. As long
as anyonecould be convicted under that state burglary
statute for conduct beyond the federal generic burglary standard, no one could suffer federal sentencing or
immigration consequences because of a conviction under that statute.
The result
was to create a sort of windfall for some defendants and immigrants. The Court
stated that this categorical approach (as opposed to a fact-based approach) was
necessary to avoid retrials of old convictions, and to ensure consistency and
predictability. Still, it left government lawyers wishing they could “unlock
the facts” underlying prior convictions in order to show that the defendant or
immigrant at bar had actually done something in line with the federal generic
standard.
Based on Taylor, which involved several Missouri burglary
statutes, and the Supreme Court’s 2005 decision in Shepard v. United States, involving a Massachusetts
burglary statute, lower federal courts began to unlock the facts by using a
device that came to be known as the “modified categorical approach” (MCA).
Under the MCA, courts looked at the charging papers, jury instructions, plea
colloquy, or sometimes other documents, to see whether the defendant or
immigration petitioner had actually engaged in conduct falling within the
federal generic standard. Widespread use of the MCA made government lawyers
happy, but it threatened to become the rule rather than the exception.
In 2013, the Court tried to
stop this routine use of the MCA in Descamps v. United
States, a case involving the California burglary statute.
Lower federal courts had misunderstood the MCA, wrote Justice Elena Kagan for
the majority. The MCA may be used to unlock the facts only for the limited
purpose of determining under which part of a statute the defendant was
convicted. Some statutes are divisible, in the sense that they contain multiple
chargeable offenses within them. Others are indivisible – they contain only a
single offense. An indivisible statute might be violated by any number of
different factual means, but it contains only a single set of essential
elements.
Descamps effectively concentrated all
the analytical pressure onto the point now presented in Mathis:exactly how does a federal court determine
whether a statute is divisible, thus unlocking the facts? Petitioner Richard
Mathis argues that whether a state statute contains multiple offenses is a
question of state law, and that federal courts are required to follow state
precedent where available. The government argues that federal courts may only
examine the text of the state statute, and that it is divisible whenever it
sets out alternative, disjunctive phrases – no matter what state case law says.
In this case, for example,
Mathis was convicted of several burglaries in Iowa. When he was later
prosecuted by the federal government for being a felon in possession of a
firearm, he received a mandatory minimum sentence under the Armed Career
Criminal Act (ACCA) based on those Iowa burglary convictions. The Iowa burglary
statute was overbroad in relation to the federal generic burglary standard
adopted in Taylor because it authorized
convictions for unlawful entry into some boats and motor vehicles, whereas the
federal generic burglary definition is limited to fixed structures.
Because
someone could be convicted of burglary in Iowa for breaking into a boat or car,
Mathis could only be sentenced under the ACCA if the court was permitted to use
the MCA to show that he was not convicted under the portion of the statute dealing
with boats and cars, but was instead convicted under the part of it dealing
with fixed structures. And, according to the charging documents in Mathis’s
case, he had in fact been caught burglarizing fixed structures, not boats or
cars.
Under Descamps, the court would only be permitted to use the
MCA if the Iowa burglary statute is divisible. The statute uses the term
“occupied structure,” which is defined in a separate Iowa code section. That
cross-referenced provision defines occupied structure as including “any
building, structure, appurtenances to buildings and structures, land, water or
air vehicle, or similar place” so long as it adapted for sleeping, business,
storage, or safekeeping.
The government argues that this statute is per se
divisible because it sets out alternative, disjunctive places where burglaries
can happen. Mathis argues that it is indivisible because of an Iowa Supreme
Court decision that squarely holds these different locations merely to
constitute different means of committing burglary, rather than as separate
elements, which would require jurors to agree unanimously on the particular
location where the charged burglary occurred.
During this oral argument,
watch Justice Kagan. The government’s argument (based on the Eighth Circuit’s
affirmance of Mathis’s sentence) could be seen as an attempt to relitigate Descamps. “The modified categorical approach does
not depend on whether a statutory alternative is a ‘means’ or an ‘element’
under state law,” the government asserts in its merits brief. Yet one could
easily think that a desire to reinforce the distinction between means and
elements was one of the driving forces behind Kagan’s majority opinion in Descamps.
The United States Court of Appeals for
the Ninth Circuit, sitting en banc, had issued a decision in the 2011 case of United States v.
Aguila-Montes de Oca, in which it sought to portray the distinction between
means and elements as arbitrary and manipulable.Aguila-Montes thus
approved broad use of the MCA throughout the Ninth Circuit. Descampsexpressly disapproved Aguila-Montes and its reasoning in what appeared
to be a clear attempt to clamp down on rampant abuse of the MCA.
At the same time, the
government decries Mathis’s argument that state case law controls the
divisibility determination. State supreme courts do not often opine on whether
jury unanimity is required as to alternative things enumerated in statutes
because the question seldom has any impact on whether the defendant was
properly convicted.
That the Iowa Supreme Court had decided a case directly on
point was highly unusual, the government points out. In a footnote, the
government concedes that its research turned up three decisions by appellate
courts in Washington and South Carolina that could be construed as guidance on
the question of burglary statute divisibility, but none directly on point.
Mathis cites cases for the
proposition that state supreme courts (and not federal courts) are the ultimate
arbiters of the meaning of state law. It will be interesting to see whether the
Justices ask the government how its position can be squared with these
precedents. It is certainly true that the question of divisibility is formally
one of federal law, but because Descamps tethers
divisibility to the elements of state statutes, it is hard to see how state
case law could be irrelevant.
The government finesses this point by saying that
the term “elements” simply means “statutory definitions,” but what justifies
federal courts in deciding for themselves what state statutes mean in the face
of contrary state court interpretations? Indeed, the Justices could decide that
cooperative judicial federalism counsels in favor of letting state supreme courts
decide the elements of state criminal statutes in order to give the states some
control over when their convictions will carry further federal consequences
such as mandatory minimum sentences or deportation of long-time permanent
residents.
Another thing to watch during
the argument is whether the Justices ask about the Court’s failure to show any
interest in state case law during its divisibility discussions in Taylor, Shepard, andDescamps – a fact that the government takes as
proof that divisibility requires no such inquiry.Moreover, as the
government correctly points out, the Court “has repeatedly provided an example
to illustrate divisibility, and that example is just like [Mathis’s] case.”
In
each of its ACCA burglary decisions, the Court hypothesized a state burglary
statute that prohibits unlawful entry into an automobile as well as a building
– and assumed it to be divisible. It does seem likely that, if the Court were
ultimately to agree with Mathis, it would have to somehow explain away hypotheticals
assuming divisibility in its prior decisions.
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