Introduction
In December 1980, an Iowa prosecutor charged Richard Mathis with second-degree burglary, “committed as follows: . . . These men broke into an occupied structure and a place where something of value is kept, to-wit: the house and garage of Allen Harvey . . . .”
Mathis then pleaded guilty to second-degree burglary and was incarcerated.
This decades-old conviction took on new significance in 2014, when Mathis pleaded guilty to a federal charge of being a felon in possession of a firearm.
The sentencing judge had to determine whether Mathis’s prior convictions made him an “armed career criminal” and therefore subject to a fifteen-year mandatory minimum penalty.
The key point of contention was whether the prior convictions were for a burglary of a “building,” which is required for the prior convictions to trigger the mandatory minimum in the Armed Career Criminal Act (ACCA).
At first the answer seems obvious: Mathis pleaded guilty to burgling the house of Allen Harvey. Houses are buildings, and therefore the prior conviction should qualify. But that is not quite right. Mathis did not plead guilty to burgling Allen Harvey’s house or to any other specific facts; rather, the district court accepted his plea of guilty simply “to the charge of burglary in the 2nd degree.”
When statutes attach downstream consequences to a certain type of conviction, how should courts determine whether a defendant’s prior conviction falls within the statutory definition? That question has persistently vexed courts asked to apply such statutes.
And the answer has enormous human consequences. ACCA provides a much-litigated example: While a first-time felon-in-possession is subject to a ten-year maximum sentence,
a defendant given the “career criminal” label faces a fifteen-year minimum sentence.
Similarly, courts must determine the nature of prior convictions in order to apply the federal sentencing guidelines’ various criminal-history enhancements.
And deportation statutes require courts to consider whether a potential deportee has been convicted of an “aggravated felony” or a “crime involving moral turpitude.”
In each of these areas, a statute defines the types of offenses that qualify as predicates for a legal consequence. Federal judges must then examine records of prior convictions—records that reflect the varied criminal law and practice of all fifty states
—and determine whether those prior convictions fit the statutory definition.
The manner in which judges approach this task determines whether individuals are subject to serious consequences such as deportation or increased terms of incarceration.
This Note examines the Supreme Court’s latest attempt to provide a framework for evaluating prior convictions, Mathis v. United States. In short, Mathis made clear that judges determining whether a prior conviction triggers a statutory consequence may examine only the legal elements of the prior conviction, not the factual means of commission.
The dissenters argued that this approach would be difficult to apply because state law is often unclear on which facts are “elements” and which are merely “means.”
This Note adds four contributions to the debate. First, it finds that Mathis has proven workable in early applications of its approach, though it does often require federal judges to interpret ambiguous state law.
Second, it argues that the judicial burden of applying the Mathis rule can be lessened by rejecting dicta in the majority opinion that would treat this inquiry into state law as a “threshold” issue that must be resolved before examining the record documents of the defendant’s prior conviction.
Third, it argues that courts should be permitted to impose prior-conviction enhancements even in the presence of some legal uncertainty about the nature of the prior conviction, so long as there is no factual uncertainty about whether the defendant admitted or was convicted of conduct that would constitute a qualifying offense.
And fourth, this Note argues that facts alleged in indictments alone are never sufficient to establish factual certainty about the nature of a prior offense.
Part I summarizes the Court’s long-evolving approach to classification of prior convictions. Part II evaluates the court of appeals cases that applied Mathis in the six months after it was decided, reaching the finding that the majority’s rule has proven workable, though not always straightforward in application. Part III presents recommended interpretive clarifications of Mathis.
I. The Challenge of Recidivist Sentencing in a Federal System
Recidivist sentencing rules are a familiar feature of the American criminal justice system, most famously exemplified by “three-strikes” laws.
Such sentencing rules impose longer sentences on offenders with a pattern of criminal behavior, reasoning that recidivists are more culpable
and that incarcerating habitual offenders is an effective way to decrease crime.
These rules raise a host of challenging policy questions.
This Note deals with a question of implementation that comes after judgments about which, if any, prior convictions should carry downstream consequences. That is, how does a sentencing judge know that a defendant has a qualifying prior conviction? After all, in a federal system, a defendant may have prior convictions under a variety of different state or federal criminal statutes. Many of these statutes seek to prevent similar conduct—for example, assault or robbery—but define violations of the law in slightly different ways.
There are three key contexts in which federal prior-offense categorization is repeatedly litigated: (1) sentencing under ACCA, (2) sentencing under the federal sentencing guidelines, and (3) cancellation of removal proceedings under 8 U.S.C. § 1229b.
In each context, the relevant text provides a different definition of the qualifying predicate offenses.
But the statutes and regulations leave unaddressed the important question of how sentencing judges should determine whether court records adequately establish that a defendant was convicted of a qualifying prior offense. This Part introduces the judicially created doctrine that has developed to enable such prior-offense categorization. Interestingly, courts employ the same approach in all three contexts
even though the Sixth Amendment does not constrain judicial fact-finding under advisory sentencing guidelines
and does not apply at all in immigration proceedings.
Section I.A briefly describes two sentencing archetypes, conduct sentencing and conviction sentencing, to illuminate the policy trade-offs involved in charting a middle course. Section I.B describes the limits that Sixth Amendment doctrine imposes on sentencing policy. These sections provide the practical and constitutional background that has shaped the Court’s doctrine of prior-conviction sentencing. Section I.C lays out the pre-Mathis evolution of that doctrine. It traces first the “categorical approach,” in which courts determine only whether the statute defining a defendant’s prior conviction necessarily (that is, “categorically”) meets the definition that triggers a later penalty. It then turns to the “modified categorical approach,” in which courts can examine certain documents from the prior conviction, using them to determine which subpart of a statute the defendant was convicted under. Finally, section I.D explores how courts determine when to use the pure categorical approach and when to use the modified categorical approach. Section I.D also examines the five opinions written in Mathis, which made various predictions about how the majority’s rule would work in practice.
A. Prior Conduct and Prior Convictions
It is helpful at the outset to imagine two possible recidivist sentencing regimes: conduct sentencing and conviction sentencing.
Under a pure conduct-sentencing regime, the judge would impose a sentence based not only on the instant offense but also on prior-offense conduct. The practical downside of such a regime is obvious: It would entangle the parties in mini-trials over past conduct. Alternatively, imagine a pure conviction-sentencing regime. Under this system, the federal sentencing judge would not hear any evidence about prior convictions but would look only to the judgments entered in the previous cases. That is, the federal judge would not inquire into the real-world facts of what happened in the prior cases but would consider only the legal facts of the defendant’s prior convictions. If the prior convictions qualified as prior offenses under the recidivist sentencing provision, then the judge would enhance the sentence accordingly.
B. The Sixth Amendment’s Limits on Judicial Fact-Finding: Apprendi and Almendarez-Torres
The Sixth Amendment serves as a critical backdrop to recidivist sentencing. In Apprendi v. New Jersey, the Court established that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”
In Apprendi, the defendant had pleaded guilty to a firearm charge that carried a penalty of five to ten years, but then the sentencing judge independently found that the defendant had committed the crime with a purpose to intimidate a racial group and imposed a twelve-year sentence.
The Court described this as “an unacceptable departure from the jury tradition” and found it in violation of the Sixth and Fourteenth Amendments.
As the first quote in the preceding paragraph indicates, there is an exception for prior convictions. In an earlier case, Almendarez-Torres v. United States, the Court upheld a sentence that the judge had imposed after independently finding that the defendant had a prior conviction for an “aggravated felony.”
The baseline statute authorized a two-year sentence for illegal reentry after deportation but allowed a sentence of up to twenty years “if the initial ‘deportation was subsequent to a conviction for commission of an aggravated felony.’”
In its reasoning, the Court explained that recidivism “is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.”
1. The Categorical Approach. — The Supreme Court began articulating its modern doctrine of prior-offense categorization in Taylor v. United States.
There the Court held that federal courts should use a model that mostly embodies a conviction-sentencing regime.
Specifically, the Court explained that ACCA “mandates a formal categorical approach, looking only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.”
The Court reached this conclusion for three reasons. First, the statute refers to previous “convictions,” not prior conduct that would constitute a violation of the law.
Second, the legislative history did not indicate that Congress contemplated the sort of in-depth fact-finding that would be necessary to examine the details of a defendant’s prior conduct.
Third, the Court explained that “the practical difficulties and potential unfairness of a factual approach are daunting.”
Though Taylor predates Apprendi, the Court also suggested that judicial imposition of a longer sentence based on independent review of the facts might abridge the right to a jury trial.
The Court noted that the defendant’s prior convictions might have occurred under statutes that were “narrower” or “broad[er]” than the language that Congress used to define a qualifying prior conviction.
A narrower definition is one that regulates conduct that necessarily fits within the federal definition. A broader definition is one that might have produced a conviction for conduct that Congress did not mean to include as a qualifying prior offense. In the latter case, the Court said that the categorical approach “may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of [the] generic [offense].”
For example, the Court explained of the burglary statute at issue in Taylor:
[I]n a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.
This investigation into the nature of a prior conviction was later termed the “modified categorical approach.”
2. The Modified Categorical Approach. — The Court’s endorsement of a limited factual inquiry raised questions of how precisely judges should conduct such inquiry, an issue addressed in Shepard v. United States.
The government had alleged that Reginald Shepard was a felon in possession of a firearm and subject to the ACCA enhancement due to four prior burglary convictions.
The parties agreed that the Massachusetts statute, under which Shepard had been previously convicted, punished a broader range of conduct than the ACCA predicates.
But the government argued that the convictions were necessarily for qualifying conduct under the modified categorical approach.
Because Shepard had pleaded guilty to the prior burglaries, there were no jury instructions available, and the government asked the district court to consider police reports as evidence that Shepard’s prior convictions should qualify.
The Court rejected the use of police reports, reasoning that it would open the door to the broader factual inquiries that Taylor meant to prevent.
Ultimately, the Court explained that the evidence judges could consider in applying the modified categorical approach to guilty pleas was “limited to the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.”
D. Alternative Elements and Alternative Means
Though Shepard provided clear guidance on what documents courts could consider in applying the modified categorical approach, a further circuit split developed concerning when courts could reach the modified categorical approach at all.
Some courts held that they could employ the modified categorical approach whenever a statute criminalized a broader range of conduct than the federal generic offense.
Others held that when a statute was merely broad but did not set out a disjunctive list of alternative forms of violation, only the pure categorical approach was permissible.
This circuit split rested on the difference between statutes that may simply be violated in various ways and those that are textually divisible. Conceptually, every criminal statute may be violated in a number of different ways. Take, for example, New York’s third-degree assault statute, which provides that a defendant is guilty of the offense when “[w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person.”
A defendant might violate this statute by intentionally punching a victim or by intentionally shooting a victim; either would be sufficient for a conviction. As a result, for a later judge required to determine whether the defendant had a prior conviction involving the use of a firearm,
the bare fact of conviction would not reveal whether a New York third-degree assault conviction qualifies. Compare New York’s second-degree assault statute, which provides that a defendant violates the statute when “[h]e recklessly causes physical injury to another person who is a child under the age of eighteen by intentional discharge of a firearm, rifle or shotgun.”
The second-degree assault statute also provides numerous other ways in which it can be violated, but the presence of particular text specifying the involvement of a firearm makes it possible that the record of conviction will reveal whether the defendant’s prior offense involved the use of a firearm.
In two recent cases, Descamps v. United States and Mathis v. United States, the Supreme Court decided first that only textually divisible statutes allow a sentencing judge to apply the modified categorical approach
and, second, that the different textual components must be not “means” but “elements.”
1. Requiring a Textual Basis for Divisibility—Descamps v. United States. — In Descamps, the Supreme Court resolved the circuit split outlined above, holding that the modified categorical approach was permissible only when a statute is “divisible.”
The Court explained that a divisible statute “sets out one or more elements of the offense in the alternative—for example, stating that burglary involves entry into a building or an automobile.”
The Court acknowledged that indivisible statutes also implicitly set out a list of means of commission;
thus, the only conceptual difference between indivisible statutes and divisible ones is that the divisible statute’s alternatives are explicit.
But the Court reasoned that “only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime.”
Indeed, the Court said, allowing the modified categorical approach for indivisible statutes “would altogether collapse the distinction between a categorical and a fact-specific approach” because the sentencing judge could always “imaginatively transform[]” a broader statute to cover a range of narrow factual alternatives.
Justice Alito, dissenting, argued that it would often be difficult to determine whether a statute was divisible.
He observed that statutes often list alternatives even though the prosecution need not prove any particular one of these alternatives beyond a reasonable doubt.
He offered as an example a Michigan statute that “criminalizes assault with ‘a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon’”
and noted that, despite this seemingly divisible list, Michigan courts have held that the prosecution merely needs to prove that a defendant used a dangerous weapon, not any particular weapon.
In a subsequent prosecution in which it was important whether the prior conviction involved use of a firearm, for example, it would be critical whether the statute listed alternative elements or alternative means. Consequently, Justice Alito argued, the Descamps majority would complicate lower courts’ application of ACCA because “[t]he only way to be sure whether particular items are alternative elements or simply alternative means of satisfying an element may be to find cases concerning the correctness of jury instructions that treat the items one way or the other. And such cases may not arise frequently.”
Responding in a footnote, the majority wrote that it saw “no real-world reason to worry” about the difficulty of distinguishing between means and elements.
The Court elaborated,
Whatever a statute lists (whether elements or means), the documents we approved in Taylor and Shepard—i.e., indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s elements. So a court need not parse state law in the way the dissent suggests: When a state law is drafted in the alternative, the court merely resorts to the approved documents and compares the elements revealed there to those of the generic offense.
The text of this footnote, referring to both elements and means, produced a further circuit split: Can a sentencing judge apply the modified categorical approach only when a statute lists alternative elements, or is a statute that lists alternative means sufficient, so long as they are reflected in the Shepard documents?
2. Requiring Alternative Elements, Not Just Means—Mathis v. United States. — In Mathis, the Court resolved this circuit split by holding that “ACCA disregards the means by which the defendant committed his crime, and looks only to that offense’s elements.”
As a theoretical matter, it is straightforward to explain the difference between elements and means. As the Mathis Court put it:
“Elements” are the “constituent parts” of a crime’s legal definition—the things the “prosecution must prove to sustain a conviction.” At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty. Facts, by contrast, are mere real-world things—extraneous to the crime’s legal requirements. . . . They are “circumstance[s]” or “event[s]” having no “legal effect or consequence”: In particular, they need neither be found by a jury nor admitted by a defendant.
But as a practical matter, determining whether a given statute lists alternative elements or alternative means is more challenging. The question is one of state law, and one that most state courts approach as a question of legislative intent: That is, did the legislature intend to require proof beyond a reasonable doubt on that specific fact (in which case it is an element) or not (in which case it is merely a means)?
Legislatures often simply draft statutes in the alternative, without clearly indicating whether the alternatives are elements or means.
The Mathis majority provided three sources of state law that courts could look to in making the means–element distinction: state-court decisions, the text of the statute, and the record of the prior conviction.
This Note will refer to these as the “Mathis tools,” and the core project of Part II is determining how well these tools have served lower courts tasked with distinguishing statutory elements from means.
3. Conflicting Predictions About the Workability of Mathis. — Mathis produced five separate opinions: (1) Justice Kagan’s majority opinion, signed by five members of the Court, (2) Justice Kennedy’s concurrence, (3) Justice Thomas’s concurrence, (4) Justice Breyer’s dissent, joined by Justice Ginsburg, and (5) Justice Alito’s dissent. The majority and concurring opinions reveal important differences about the justification for requiring alternative elements. And the dissenting opinions propose alternative methods of applying ACCA that they think are more workable and consistent with congressional purpose.
Justice Kagan offered three key rationales for limiting the modified categorical approach to elements: (1) ACCA’s text refers to “convictions” rather than conduct, (2) judicial fact-finding would raise Sixth Amendment trial-by-jury concerns, and (3) non-elemental facts of prior convictions are unreliable because the defendant had little incentive to correct them.
Justice Kennedy’s concurrence rejected the second of these rationales, noting that he believes Apprendi was wrongly decided and “does not compel the elements based approach.”
Justice Thomas, by contrast, explained that he believes the Almendarez-Torres exception to Apprendi is wrong, and thus the Sixth Amendment prohibits any form of judicial reliance on prior convictions.
He thus joined the majority approach because it at least limits judges’ ability to make such factual determinations.
Justice Breyer rejected all three of the majority’s rationales. In his view, ACCA’s reliance on “convictions” was designed as a “practical” solution to allow sentencing judges to quickly determine whether prior convictions involved the sort of behavior that Congress wanted to target.
Justice Breyer therefore attacked the majority’s approach primarily on the ground of workability, predicting that if courts must research whether a provision lists elements or means under state law, “[w]hat was once a simple matter will produce a time-consuming legal tangle.”
He also rejected the Apprendi rationale, reasoning that a fact must be proven beyond a reasonable doubt if it was the only alternative that the prior prosecution charged.
Perhaps most controversially, Justice Breyer considered the charging document’s allegation of a qualifying offense sufficient indication that the defendant’s guilty plea necessarily produced a conviction for a qualifying offense.
Justice Alito, having attacked the majority’s baseline rationales in Descamps,
advanced two points at greater length in Mathis. First, to the majority’s assertion that determining whether a statute listed alternative elements or alternative means would often be easy, Justice Alito bluntly replied, “Really?”
By contrast, Justice Alito argued that the majority’s approach would require lower courts to delve into an area of state law that is notoriously uncertain.
Further, he argued that the Court’s approach produced “results that Congress could not have intended.”
Specifically, Justice Alito suggested that defendants who engaged in the same conduct would be treated differently depending on the drafting of the state statute under which they were convicted. Justice Alito characterized this result as the ultimate example of “pointless formalism.”
The differences between these five opinions motivate the questions that Part II explores. First, has the Mathis approach proved workable for lower courts to apply? And second, how have courts operationalized the three interpretive tools that Mathis suggests?
II. Mathis in Practice
This Part examines the court of appeals cases that have applied the Mathis framework to determine whether a statute is divisible and reaches three conclusions. First, contrary to the dissenters’ workability concerns, applying Mathis is within the core competencies of the federal judiciary, and the interpretive tools that it provides produce predictable results in most cases. Second, though the Mathis inquiry requires parsing of state law to determine whether a statute is divisible, a handful of court of appeals cases omit such analysis and make only a conclusory statement on the question of divisibility. Third, questions remain about how to apply portions of the Mathis opinion regarding the level of certainty required about the nature of the prior conviction and the use of record documents.
A. Cases Illustrating the Workability of Mathis
1. Defining Workability. — What precisely does it mean for a standard to be workable?
Justice Breyer criticized the Mathis majority’s approach on the grounds that it would “produce a time-consuming legal tangle.”
Further, Justice Breyer feared that the Mathis approach would prove to be “not practical” in part because “there are very few States where one can find authoritative judicial opinions that decide the means/element question.”
Similarly, Justice Alito expressed concern that “[t]he Court’s approach calls for sentencing judges to delve into pointless abstract questions” and that lower courts would struggle to apply the means–element distinction in the frequent cases that raise the applicability of the modified categorical approach.
To evaluate these arguments, one needs an account of what makes a standard “practical” or “workable.” Though none of the opinions in Mathis provide such an account, the Court has directly confronted workability in the context of the political question doctrine, invoking the concept of “judicially discoverable and manageable standards.”
Professor Richard Fallon observes that the Court applies this concept in other contexts as well and “sometimes expressly justifies its selection [of a judicial test] as more manageable than the alternatives.”
Fallon identifies the following “practical desiderata” as probative on the issue of whether a standard is judicially manageable: (1) whether it has sufficient “analytical bite” to be rigorously applied, (2) whether it can generate predictable and consistent results, and (3) whether it requires the courts to make empirical judgments beyond their competence.
Finally, Fallon suggests that courts “ultimately make all-things-considered judgments” about which doctrinal test to adopt after considering the preceding indicia of manageability along with the other costs and benefits of the proposed rule.
The following section employs Fallon’s “practical desiderata” to evaluate whether the Mathis rule has been workable as applied by the lower courts.
2. The Mathis Tools Producing Principled Results. — In most cases, the Mathis tools produce predictable results that rest on courts’ core competencies of statutory and common-law interpretation. Of the first 103 court of appeals decisions confronting the means–element distinction under the Mathis framework, only 12 produced split panels.
The modified categorical approach jurisprudence, for all its complexity, does provide a relatively rule-bound and predictable framework for decision.
Fallon describes the first practical consideration in the Supreme Court’s workability analysis as requiring that a test provide “criteria sufficient to make nonarbitrary distinctions.”
A test is not unworkable merely because it is difficult to apply but only if “it requires distinctions for which conceptual resources are lacking in too many instances.”
This section finds that, in most cases, the Mathis tools—state cases, statutory text, and the record of conviction—have provided sufficient criteria to make nonarbitrary distinctions in court of appeals cases decided since Mathis.
First, state cases have provided guidance in about sixty percent of the court of appeals cases applying the Mathis framework.
It is important to understand the limitations of this quantitative finding and those that follow. Court of appeals cases do not directly capture how the Mathis tools function in the district courts,
which handle the bulk of federal cases.
Similarly, in examining whether Mathis furnishes sufficiently clear criteria to resolve most cases, one should keep in mind that courts of appeals are likely to hear cases that are closer or more challenging than the average case.
Despite these limitations, the frequency with which courts of appeals have found state cases to guide their determination of the means–element distinction shows that such declarations of state law are perhaps not as rare as the Mathis dissenters feared.
One example of such a case—an “easy” case in the words of the Mathis majority
—is Gomez-Perez v. Lynch.
Gomez-Perez sought cancellation of removal proceedings against him, a request that the immigration judge had denied, reasoning that his misdemeanor assault was a “crime of moral turpitude.”
Though this case arose in an immigration proceeding, courts apply the same categorical approach to determine whether a prior conviction meets a statutory definition in the current proceeding.
Gomez-Perez was convicted under a Texas Penal Code provision that defines assault as “intentionally, knowingly, or recklessly cause[ing] bodily injury to another.”
Only crimes committed with the mental state of intent qualify as crimes involving moral turpitude that make a nonpermanent resident ineligible for discretionary cancellation of removal.
In a one-paragraph analysis, the Fifth Circuit said this was not a difficult case under Mathis because “Texas law has definitively answered the ‘means or elements’ question.”
And indeed, the Court of Criminal Appeals of Texas has explicitly written:
The legislature was apparently neutral about which of these three mental states accompanied the forbidden conduct because all three culpable mental states are listed together in a single phrase within a single subsection of the statute. There is no indication that the legislature intended for an “intentional” bodily injury assault to be a separate crime from a “knowing” bodily injury assault or that both of those differ from a “reckless” bodily injury assault. All three culpable mental states are strung together in a single phrase within a single subsection of the statute. All result in the same punishment. They are conceptually equivalent.
Given such a clear interpretation that the different mental states are means, rather than elements, the Mathis test is straightforward for the federal sentencing judge to apply: The statute is indivisible.
Similarly, the D.C. Circuit resolved a case under the career-offender guideline
in part by reference to state law.
The district court had sentenced Dante Sheffield as a career offender in part due to a prior conviction for attempted robbery.
The District of Columbia’s robbery statute can be violated by the use of force (“against resistance”), the threat of force (“by putting in fear”), or by means that do not involve the use of violent force against a person (“by sudden or stealthy seizure or snatching”).
By contrast, the attempted robbery statute does not distinguish these separate forms.
Instead, as the D.C. Court of Appeals has explained, attempted robbery has only three elements:
(1) [T]he defendant committed an act which was reasonably adapted to the commission of the offense of robbery, (2) at the time the act was committed, the defendant acted with the specific intent to commit the offense of robbery, and (3) the act went beyond mere preparation, and carried the project forward to within dangerous proximity of the criminal end to be sought.
Thus, D.C. law makes clear that attempted robbery does not have any divisible form in which the jury would necessarily have to find attempted use of physical force, and the statute cannot categorically describe a crime of violence. As these two cases illustrate, state-court decisions do often provide sufficient information to make a nonarbitrary distinction between divisible and indivisible statutes.
This is not to say that parsing state law is always straightforward. In United States v. Fogg, the Eighth Circuit considered whether a Minnesota drive-by-shooting conviction was a crime of violence under ACCA.
The Minnesota statute contained two provisions, one specifying punishment for drive-by shootings and the other specifying greater punishment for such shooting that involved “firing at or toward a person.”
Only the latter form would qualify as an ACCA predicate, which requires “use of physical force against the person of another.”
The panel majority concluded that the second provision must be an additional element under Apprendi because it allowed higher punishment than otherwise permissible.
In dissent, Judge Myron Bright cited state precedent that the second provision was a separate “sentencing enhancement,” and that a person thus could be convicted under the statute without proof of the second element.
The majority in turn responded that this was a “misread[ing]” of the state case and pointed to other Minnesota cases holding that sentencing enhancements must be proven beyond a reasonable doubt, thus rendering them elemental for ACCA purposes.
The foregoing discussion illustrates that the import of state law may not always be clear.
But parsing judicial decisions and statutory text is within the core competency of federal courts.
As Fogg illustrates, it is true that Mathis and the Supreme Court’s other recent ACCA cases have required lower courts to examine new and challenging questions about whether given state statutes set out means or elements.
But, at least when state cases are available, construction of those cases provides adequate conceptual resources for courts to decide those new questions in a principled way.
The second Mathis tool, statutory text, provides further guidance for making the means–element distinction in the absence of state-court precedent. Mathis provides two ways in which the text of a statute could reveal whether an alternatively phrased statute sets out elements or means.
First, if alternatives carry different punishments, then they must be alternative elements to comply with Apprendi.
In United States v. Lopez–Jacobo, the defendant appealed the district court’s use of the modified categorical approach.
The Tenth Circuit concluded that the modified categorical approach was proper, explaining that “[b]ecause Illinois’ statutory alternatives carry different punishments, the subsections reflect alternative elements.”
Similarly, in Singh v. Attorney General, the Third Circuit found a drug statute divisible based on the type of drug, in part because different drugs carried different penalty ranges.
Second, if a statute offers only “illustrative examples,” then those examples are mere means rather than elements.
Courts of appeals have also used this tool to determine that statutes list alternative means rather than elements. In United States v. Ritchey, the Sixth Circuit considered prior convictions under a Michigan statute that criminalized breaking and entering into “a tent, hotel, office, store, shop, warehouse, barn, granary, factory or other building, structure, boat, ship, shipping container, or railroad car.”
Only if the defendant were convicted of burglary of a “building or other structure” could the prior convictions serve as ACCA predicates.
Emphasizing the word “other,” the panel reasoned that the statute did not set out alternative elements but rather “non-exhaustive examples” of means that could fulfill a single locational element.
The Seventh Circuit conducted a strikingly similar analysis in United States v. Edwards, concluding that “[t]he statute’s text and structure suggest that the components of each subsection are merely ‘illustrative examples’ of particular location types.”
In Edwards, this textual analysis was particularly important because there was no controlling state precedent on the issue of whether the particular location burgled was an element or a means.
Between state cases and the text of the statute, there are adequate resources to make a nonarbitrary means–element determination in most cases under Mathis. Though the preceding paragraphs have been framed in terms of Fallon’s analytical-bite prong,
the same features of the Mathis tools that allow them to provide nonarbitrary criteria for judicial decisionmaking also produce substantial predictability and consistency. Though the categorical approach is complicated,
it is also relatively rule-bound.
This has continued to be true in the wake of Mathis. Only about twelve percent of court of appeals cases confronting the divisibility question after Mathis have produced dissents.
This is a slightly higher dissent rate than the eight pecent rate found in a random sample of published court of appeals decisions.
Nonetheless, the relatively high level of agreement among court of appeals judges in divisibility cases reveals that, in most cases, the Mathis tools produce consistent and predictable results.
Finally, the means–element inquiry satisfies Fallon’s third practical indicator of workability because it does not require empirical judgments beyond courts’ competence. On the contrary, it is an interpretive inquiry that judges are uniquely qualified to undertake.
Put another way, Mathis requires only that courts resolve a question of law, which raises no concerns about courts’ institutional competence.
Thus the Mathis rule satisfies each of Fallon’s practical indicia of workability.
B. Cases Omitting a Full Discussion of Divisibility
On the whole, the circuit courts have taken Mathis seriously and faithfully applied its instructions. There are a few cases, however, in which the opinion makes a conclusory statement that a statute is divisible based on its text alone. In United States v. Madkins, for example, a Tenth Circuit panel asserted, without analysis, that Kansas’s controlled-substances statute was divisible.
Though it seems that the defense did not explicitly argue that the statute was indivisible,
the absence of more detailed element–means reasoning is surprising given the text of the statute, which listed alternatives in a single block:
[I]t shall be unlawful for any person to sell, offer for sale or have in such person’s possession with intent to sell, deliver, or distribute; prescribe; administer; deliver; distribute; dispense or compound any opiates, opium or narcotic drugs, or any stimulant.
Without knowing more about Kansas law, it is not obvious whether this statute lists alternative means or separate crimes with separate elements. Indeed, other cases confronting similar issues have provided fuller discussions of state law.
Perhaps the panel’s decision not to examine state law in any detail is understandable because it ultimately concluded that, even under the modified categorical approach, the prior conviction at issue did not qualify as a generic federal “controlled substance offense” because Kansas defined “‘sale’ to include an ‘offer to sell.’”
Whether or not Madkins is correct about the divisibility of Kansas’s statute,
its omission of the full analysis that Mathis would require illustrates that the work of applying Mathis can be somewhat burdensome and ultimately irrelevant to the outcome of the case.
Similarly, in United States v. Lara-Martinez, the Fifth Circuit asserted, without discussion, that “[t]he modified categorical approach is appropriate because this statute has ‘multiple alternative elements.’”
This lack of analysis is more concerning because the defendant’s brief specifically argued that the statute did not set out alternative elements.
Lara-Martinez argued that his prior Missouri conviction for sexual misconduct involving a child did not qualify as a prior conviction for “sexual abuse of a minor,” reasoning that the Missouri statute allowed conviction for conduct that did not involve an actual minor but rather a law enforcement officer pretending to be a minor.
The panel rejected this argument, finding first that the statute was divisible, and second that the provision under which Lara-Martinez was charged categorically required abuse of an actual minor.
Again, whether or not the court’s divisibility determination is correct, it is striking that it cited Mathis without examining state precedent or statutory text, which the Supreme Court identified as the preferred tools for identifying whether a statute is divisible.
As in Madkins, the missing analysis provides some indication that it can be burdensome to perform.
These cases highlight the downside of the Mathis approach: Whether a prior conviction qualifies as a predicate offense cannot be determined from the defendant’s record of conviction alone. Rather, because the sentencing judge must determine whether the statute of conviction set out alternative elements or means, getting the right result requires examination of state law and textual analysis of the statute itself. The Descamps majority expressly claimed that looking beyond the record would not be necessary because the “indictment, jury instructions, plea colloquy, and plea agreement—would reflect the crime’s elements. So a court need not parse state law [to determine whether a statute lists elements or means] . . . .”
But Mathis changed course, instead requiring sentencing judges to look to “authoritative sources of state law.”
This necessarily increases the research burden on parties and the courts attempting to apply the categorical approach.
Some federal judges have, understandably, continued to object to this consequence of Mathis.
It is too early to say whether these critiques will lead to a judicial or legislative rejection of the Mathis rule.
But all should agree that greater clarity and consistency in this area would be valuable. The following section, therefore, turns to the third interpretive tool that the Mathis majority suggested, the record of the prior conviction,
identifying two ways in which its proper application is somewhat unclear.
C. Unresolved Questions in Applying Mathis
Mathis suggested a third tool to employ when “state law fails to provide clear answers.”
Specifically, judges can take a “peek at the [record] documents” for the “sole and limited purpose of determining whether [the listed items are] element[s] of the offense.”
The Court elaborated with two examples of what such a peek might reveal.
First, if “one count of an indictment and correlative jury instructions” list all the alternatives, then “[t]hat is as clear an indication as any that each alternative is only a possible means of commission.”
Second, the indictment and jury instructions “could indicate, by referencing one alternative term to the exclusion of all others, that the statute contains a list of elements, each one of which goes toward a separate crime.”
Then the Court added a crucial caveat, that “such record materials will not in every case speak plainly, and if they do not, a sentencing judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.”
This passage raises two key questions. First, is “certainty” the standard for determining whether a statute is divisible? Second, under what circumstances could the charging of a single statutory alternative provide sufficient basis to conclude that a statute is divisible? Lower-court decisions reveal differing views on these questions, which complicates the application of Mathis.
1. The Role of “Certainty.” — What should we make of “Taylor’s demand for certainty”? The language originated in Shepard, in which the Court characterized Taylor as requiring that “evidence of generic conviction be confined to records of the convicting court approaching the certainty of the record of conviction in a generic crime State.”
In Mathis, the Court made clear that the modified categorical approach analysis requires two steps: First, determine whether the statute lists alternative elements or alternative means;
then, only if the alternatives are elements, determine whether the defendant necessarily admitted elements sufficient to categorically qualify as a predicate offense.
In Shepard, the “demand for certainty” language was applied at this second stage of modified categorical approach analysis,
but the language in Mathis can be read to apply to either stage, or both. On one hand, the Mathis opinion adverts to the “demand for certainty” in a section devoted to answering the means–element question.
On the other hand, the sentence in which Mathis quoted the language does not refer directly to the means–element distinction; it refers to the broader task of “determining whether a defendant was convicted of a generic offense.”
The following sentence, however, says that “between [the record] documents and state law . . . indeterminacy should prove more the exception than the rule.”
This language in particular suggests that the import of “certainty” is not limited to use of the record documents but also to the inquiry into “state law.” Thus there are two possible readings of this language from the Mathis opinion: (1) A court may determine that a statute is divisible only if it is “certain” that it sets out alternative elements rather than means, or (2) certainty is required only in the second stage, when the court is determining what the defendant necessarily admitted.
The Eighth Circuit, in United States v. Horse Looking, took the second approach.
Horse Looking argued that his conviction under the statute was not for “a misdemeanor crime of domestic violence” because one of the alternatives listed in the statute did not require the use of force.
The panel concluded that a South Dakota domestic assault statute was divisible, without invoking the “demand for certainty.”
During his plea colloquy, Horse Looking admitted that he had pushed his wife, and the victim had testified she had abrasions as a result.
The panel concluded that this record was consistent with a conviction under either a subsection of the statute requiring the use of violent force or a subsection requiring only “attempting by physical menace to put another in fear of imminent bodily harm.”
The panel then quoted Mathis’s language about the demand for certainty and concluded that this record could not satisfy that demand:
It is clear that Horse Looking admitted using physical force against his wife, and that he could have been found guilty of a crime that has, as an element, the use of force against his wife. But the judicial record does not establish that Horse Looking necessarily was convicted of an assault that has the required element. He was charged in the alternative with a non-qualifying assault, and the state court did not specify which alternative was the basis for conviction.
This case certainly illustrates that the categorical approach can be blind to the actual conduct that produced a conviction, but that is by design.
For present purposes, the important takeaway is that the panel in Horse Looking did not apply the “demand for certainty” to its divisibility inquiry but only to its determination of whether the record showed the defendant necessarily admitted a certain statutory alternative.
The Sixth Circuit, however, has invoked the “demand for certainty” in conducting a divisibility inquiry. In United States v. Ritchey, the defendant argued that his Michigan breaking-and-entering convictions did not qualify as ACCA predicates because the statute criminalized burglary of not just buildings but also, “among other things, tents, boats, and railroad cars.”
After concluding that state cases and the statute’s text indicated that the alternative locations were means rather than elements, the panel found that consideration of the record documents produced the same conclusion.
Though Ritchey’s charging documents did allege the specific locations that he broke into, the panel noted that other portions of the record suggested that the alternatives were mere means—for example, one charged entry of a “BARN/GARAGE,” thus suggesting that the jury need not find that Ritchey broke into either specific location beyond a reasonable doubt.
Characterizing the record documents as “at the very most, inconclusive,” the panel concluded that they could not satisfy Taylor’s demand for certainty.
The Ritchey opinion exemplifies an approach that treats the “demand for certainty” as relevant to the divisibility inquiry but only insofar as the record documents are used as evidence of divisibility. When parsing the statute and state-court interpretations thereof, the Sixth Circuit treated divisibility as an ordinary question of statutory interpretation not dependent on a finding of “certainty.”
The clearest illustration of differing applications of the “demand for certainty” comes from an Eleventh Circuit case, United States v. Gundy.
There, the panel majority concluded that the text of Georgia’s burglary statute and state-court interpretations indicated that the statute was divisible.
The majority further reasoned that, even if state law were ambiguous, the record of Gundy’s indictments was sufficient to “satisfy Taylor’s demand for certainty” because they alleged that he had burgled a “dwelling house” and a “business house.”
In dissent, Judge Jill Pryor first reached the opposite conclusion about Georgia law.
Then her opinion turned to the record materials and observed that some of the indictments charged entry into a “business house,” a term not found in the text of the statute.
Judge Pryor reasoned that a term not present in the text of the statute cannot be an element and said the majority had “misconceive[ed] the appropriate inquiry under Mathis at this stage of the analysis” by failing to frame the test in terms of whether the record showed the alternatives to be elements or means.
Importantly for the present discussion, Judge Pryor then characterized the “‘demand for certainty’” language in Mathis as requiring that statutes be found indivisible whenever “state law and the records of a conviction are inconclusive regarding a statute’s divisibility.”
Professor Evan Lee also advocates the use of a certainty standard for determining whether a defendant has a qualifying prior conviction
and suggests as a descriptive matter that such a certainty standard is what Mathis requires.
Despite the fact that Mathis’s text invites this reading, the weight of authority does not demand “certainty” in making the divisibility inquiry
but only in the use of the record documents.
2. Record Documents as Proof of Divisibility. — As the above cases illustrate, lower courts have read the “certainty” language in Mathis in a few different ways, each of which might produce different results. Part III takes up which of these readings is most consistent with the Court’s jurisprudence. But Gundy also highlights the second key question that follows from Mathis: When can the record documents themselves provide sufficient basis to conclude that a statute is divisible? Mathis provided three hypothetical situations in which the record documents would help answer the means–element question, two of which indicate the statute is indivisible and one of which suggests that it is divisible. The table below summarizes this guidance, along with the case in which the record is unhelpful.
Table 1: Mathis’s Guidance for Using Record Documents
| Contents of Record |
Result |
The indictment and jury instructions list each of the alternatives from the statute.
OR
The indictment and jury instructions use a blanket term, like “premises,” that encompasses alternatives. |
“That is as clear an indication as any that each alternative is only a possible means of commission, not an element that the prosecutor must prove to a jury beyond a reasonable doubt.” |
| The indictment and jury instructions reference “one alternative term to the exclusion of all others.” |
That “could indicate . . . the statute contains a list of elements, each one of which goes toward a separate crime.” |
| The record materials do not “speak plainly.” |
“A sentencing judge will not be able to satisfy ‘Taylor’s demand for certainty’ when determining whether a defendant was convicted of a generic offense.” |
Two immediate observations are worth making about this text.
First, the Court states that the record sometimes provides a “clear . . . indication” that a statute is indivisible but that the record at most “could indicate” that a statute is divisible.
This suggests that the record is more powerful as a tool for ruling out divisibility than for finding divisibility. Second, each hypothetical assumes that there is both an indictment and “correlative jury instructions.”
This casts doubt on the persuasiveness of arguments that are based on indictments alone.
In Gundy, the majority seemed to think that the record put the case in the second box above, because each indictment alleged a specific alternative in isolation.
By contrast, Judge Pryor concluded that the record did not speak plainly enough to satisfy the demand for certainty.
As discussed above,
most court of appeals cases applying Mathis conclude that the statute’s text and state precedents answer the means–element question, so the stakes attached to reading the record of conviction are lower than in Gundy. Nonetheless, many cases use the third Mathis tool as confirmation of the conclusion from analysis of the first two. In Chang-Cruz v. Attorney General, for example, the Third Circuit noted that the judgments of conviction listed both of the alternatives, thus providing “clear . . . indication” that they were means rather than elements.
Similarly, the Eighth Circuit found that a statute was indivisible based in part on the fact that the defendant’s charging document used a “single umbrella term.”
Courts have also invoked the record in support of a finding of divisibility. The Fifth Circuit, for example, reasoned that a judicial confession reciting the text of only one statutory subsection supported a finding that the defendant’s conviction necessarily involved violation of that subsection.
And the Tenth Circuit has used the fact that an indictment cited only a particular subsection to bolster its conclusion that the statute’s subsections set out divisible elements.
Finally, the Seventh Circuit opinion in United States v. Edwards provides an example in which the record was unhelpful in resolving divisibility; the court concluded that “in Wisconsin neither the charging documents nor a plea colloquy will necessarily reflect only the elements of a crime.”
To sum up, though Mathis provided some guidance on how to use record documents as part of divisibility analysis, lower courts have not adopted a uniform reading of that guidance. In particular, there is disagreement about what role “certainty” plays in the divisibility analysis and about when record documents are sufficient to themselves indicate that a statute is divisible. As Gundy illustrates, the answers to these questions are critical for cases in which authoritative sources of state law prove inconclusive. Part III seeks to articulate solutions that are consistent with Mathis and the Court’s other categorical-approach cases.
III. Clarifying Mathis: How to Use the Record of Prior Conviction
The above exploration produces two main findings about how Mathis has functioned in application. First, its state-law approach to divisibility is workable, but takes work. That is, the precedential and textual analysis that Mathis demands has not proven as indeterminate as its detractors predicted, but it does require sentencing judges to delve into state-law questions that do not always have obvious answers. Some cases are indeed “easy” because of state decisions that are clearly on point or because the statutory alternatives carry different punishments. But there remain challenging cases in which such decisions and dispositive text are absent. These are the cases in which the “peek” at the record documents Mathis authorizes takes center stage.
The opinion in Mathis, however, provided relatively little guidance on how to conduct this inquiry. For one, it did not precisely explain the relationship between “Taylor’s demand for certainty,” the record documents, and the divisibility inquiry.
Also, by saying only that certain record documents “could indicate” that the statute sets out alternative elements,
Mathis did not fully explain when such documents would indicate divisibility. This Part advances three interpretive clarifications of Mathis.
A. Treating Divisibility as a Threshold Inquiry—an Unnecessary Burden
Whether a court “peeks” at the record or scrutinizes it fully, it should always see the same thing. Mathis describes the inquiry necessary for the modified categorical approach as a two-step process: (1) Determine whether statutory alternatives are elements or means; (2) only if they are elements, determine which element the defendant was necessarily convicted of.
The Court expressly described the means–element question as a “threshold inquiry” and resolving it as “[t]he first task for a sentencing court.”
This section argues that, once one has exhausted the first two Mathis tools, this bifurcation is actually misleading about the analysis required and suggests an order-of-decision rule that imposes unnecessary analytical burdens on sentencing judges.
To see why the bifurcation is confusing, it is helpful to define precisely what the second step of the inquiry is. Mathis says that, once the sentencing court has determined that the alternatives are elements, the second step is to “review the record materials to discover which of the enumerated alternatives played a part in the defendant’s prior conviction, and then compare that element (along with all others) to those of the generic crime.”
When employing the first two Mathis tools, this distinction is comprehensible. For example, one might find state precedent that a statute is divisible but that the record documents in the case do not identify which of the alternatives the defendant was actually convicted of. That, for example, is what the Third Circuit concluded in Singh v. Attorney General. At issue there was whether Singh’s prior conviction under Pennsylvania’s controlled-substances law qualified as an aggravated felony for immigration purposes.
The panel found state precedent demonstrating that the Pennsylvania statute was divisible on the type of drug involved.
However, because the charging documents in Singh’s record did not actually identify the type of drug, the court concluded that, even applying the modified categorical approach, his prior convictions were not federal-law aggravated felonies.
In such a case, one can logically find that the statute is divisible, but that the prior conviction was not for a qualifying offense. The same is true when the court is performing textual analysis of divisibility.
The language of Mathis makes clear that the Court intends this distinction to persist when examining the record documents. Indeed, the Court says that the “‘peek at the [record] documents’ is for ‘the sole and limited purpose of determining whether [the listed items are] element[s] of the offense.’”
This “peek” remains a threshold inquiry, as indicated by the Court’s language that “only if [the record documents show the alternatives are elements] can the court make further use of the materials.”
But when one considers the Court’s three hypotheticals, it becomes apparent that this bifurcation makes no practical difference. In the first hypothetical, the indictment and jury instructions list all the alternatives listed in the statute. Though it is true that this is “clear indication” that the statute is indivisible, it is equally clear evidence that divisibility is irrelevant, because the record furnishes no basis for determining which of the alternatives the defendant was actually convicted of. The same is true in the second hypothetical, involving record documents that use only an “umbrella term.” The Court is surely right that such documents show the statute is indivisible, but—because they do not identify a particular alternative—they could not justify applying a prior-conviction enhancement even if the statute were divisible. In these hypotheticals, therefore, the “peek” can only ever produce the same result as a longer look.
The same is true of the third hypothetical peek at the record documents, in which they “referenc[e] one alternative term to the exclusion of all others.”
If a sentencing judge concludes that such exclusive specification is indeed sufficient to indicate that the listed alternatives are elements rather than means, she will have necessarily found the answer to Mathis’s second step because the record indicates that the prior conviction was based only on the specified alternative.
If peeking at the record documents and using them to conduct the full modified categorical approach can only ever produce the same result, then why distinguish the two steps? The original suggestion for a “peek” at the record documents came from Judge Kozinski’s opinion dissenting from the denial of rehearing en banc in Rendon v. Holder.
There, Judge Kozinski was trying to make sense of a footnote in Descamps that had read, “Whatever a statute lists (whether elements or means), the [Shepard] documents . . . reflect the crime’s elements.”
Though seemingly endorsing this portion of Judge Kozinski’s opinion, Mathis is in some respects flatly inconsistent with the approach Judge Kozinski outlined. First, Judge Kozinski thought that the “peek” at the record documents provided a path to avoid “the laborious and often inscrutable exercise of parsing state law.”
Such parsing, of course, is precisely what Mathis requires.
Second, Judge Kozinski described the second step as an examination of the record documents to determine “whether a defendant committed a state crime falling within the ambit of the relevant federal statute.”
Mathis, however, shows that even the modified categorical approach does not permit inquiry into the real-world fact of what crime the defendant “committed.” Rather, as the Court explained,
[T]he modified approach serves—and serves solely—as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque. It is not to be repurposed as a technique for discovering whether a defendant’s prior conviction, even though for a too-broad crime, rested on facts (or otherwise said, involved means) that also could have satisfied the elements of a generic offense.
The modified categorical approach thus turns on conviction, not commission. With that understanding, a “peek” at the record documents can never produce a different result than the most detailed scrutiny of those documents. This follows from the fact that the second-stage inquiry is limited to elemental facts; that limitation renders the first stage of the inquiry superfluous.
If the “peek” at the record does not ever change the ultimate result, why require sentencing judges to take that step first? A better way of understanding Mathis’s guidance about the use of the record is as a reaffirmation of the limit on judicial fact-finding. One potential benefit is that it forces sentencing judges to expressly consider which facts of the prior conviction are elemental, thus serving to discourage the temptation of judicial fact-finding. But characterizing the means–element distinction as a threshold inquiry also has a significant downside. Specifically, it suggests that courts cannot dispose of cases by simply saying that, no matter whether a statute’s alternatives are elements or means, the defendant’s record does not show which alternative was involved in the prior conviction.
Treating the means–element distinction as a threshold question is somewhat akin to an approach that the Court rejected in the qualified immunity context. In Saucier v. Katz, the Court had required that courts deciding upon qualified immunity defenses must first determine whether the plaintiff has alleged facts that would establish violation of a constitutional right and only then determine whether that constitutional right was clearly established.
Eight years later, the Court receded from that rule, instead granting lower-court judges the discretion to decide the case on the second prong alone.
The Court reasoned that requiring the threshold determination “sometimes results in a substantial expenditure of scarce judicial resources on difficult questions that have no effect on the outcome of the case.”
Much the same is true of the means–element distinction in Mathis. As explored above, the means–element issue is not always easy to resolve.
But the requirement in Mathis that courts treat it as a threshold inquiry may contribute to decisions like Horse Looking, in which the court provided cursory analysis of divisibility and concluded that the record of conviction ultimately provided an insufficient basis to reveal which of the statutory alternatives the defendant was convicted of, even having found that they were elements.
If not for the instruction in Mathis to treat the means–element distinction as a threshold inquiry, Horse Looking could have simply said nothing about divisibility and resolved the case by observing that the record documents were inconclusive.
A better reading of Mathis, therefore, is as holding (1) that a sentencing court cannot conclude that a prior conviction involved a certain fact without first finding that fact to be elemental, but (2) that a sentencing court can conclude that a prior conviction did not include that fact by finding either that the fact is legally non-elemental or not necessarily found in the defendant’s record. Indeed, a number of opinions have expressly declined to decide divisibility when the record documents do not speak clearly enough to support an enhancement.
B. The Proper Scope of “Certainty”
A second question explored above is the meaning of the “certainty” language in Mathis. Court of appeals cases have offered three interpretations: (1) require that the divisibility of a statute be certain before moving to the second step of Mathis;
(2) require certainty in the exercise of using record documents to inform divisibility;
and (3) require certainty only in the second step, when determining whether a prior conviction necessarily rested on a particular element of a divisible statute.
As the preceding section shows, approaches (2) and (3) are functionally identical—if the record documents of a prior conviction are sufficiently certain to show that the statute was divisible, then they are necessarily certain enough to show that defendant’s conviction rested on a particular statutory alternative.
Therefore, the only meaningful choice is between that approach and requiring certainty in the divisibility inquiry as a whole. The placement of the language in Mathis could support either approach. An en banc Ninth Circuit case, United States v. Martinez-Lopez,
illustrates how these two possibilities operate in practice. The controlled-substances statute there at issue prohibited a variety of acts including “importation, sale, furnishing, administration, etc.”
The majority concluded that California law indicated the statute was divisible on the actus reus requirement, without mentioning the demand for certainty.
Then, in applying the modified categorical approach, the majority noted that during the plea colloquy, Martinez-Lopez had been asked, “[O]n or about December 31st, 1997, [did] you . . . sell cocaine base—.42 grams of cocaine base?”
He responded, “Yes.”
The majority concluded, “Based on this exchange, we can say—with the certainty that Taylor demands”— that Martinez-Lopez had been convicted for selling cocaine.
Judge Marsha Berzon, dissenting from this portion of the majority’s opinion, adopted a different approach. In her view, “[D]etermining whether a disjunctively worded statute refers to alternative elements or alternative means is subject to the Court’s more general ‘demand for certainty when identifying a generic offense.’”
Further, she argued that the majority opinion “ignore[ed] the Court’s repeated direction to focus only on what must be admitted or proven beyond a reasonable doubt to sustain a conviction.”
Judge Berzon’s opinion read Mathis to require that state law or the record “provide a definitive answer” to the divisibility inquiry.
In short, the majority demanded factual certainty about whether the defendant admitted qualifying conduct, but not legal certainty about whether the statute was divisible. Judge Berzon’s opinion would have demanded legal certainty as a prerequisite to reaching the modified categorical approach.
The majority has the better of this methodological debate for three reasons. First, as a precedential matter, the “demand for certainty” language that Mathis cites originally appeared in a context discussing the propriety of using record documents to determine the elements of a prior conviction, not a broader inquiry into the divisibility of state law.
Further, Mathis said that “between [the record] documents and state law . . . indeterminacy should prove more the exception than the rule.”
If the standard for divisibility is “certainty,” this prediction from Mathis would turn out to be incorrect; courts would be required to find far more statutes indivisible due to uncertain state law. Though many courts of appeals have found guidance in state cases, those cases do not often “definitively” resolve the means–element inquiry.
Second, as a theoretical matter, whether a statute is divisible is a legal, not factual, determination.
Thus it does not raise the specter of judicial fact-finding in the way that does a resort to the record documents.
Courts regularly resolve questions of statutory interpretation against defendants without demanding certainty.
Finally, requiring only factual certainty—that is, certainty about whether the defendant exclusively admitted (or was convicted of) conduct that constitutes a qualifying offense—would satisfy the practical rationale of Mathis. The Court there reasoned that “[s]tatements of ‘non-elemental fact’ in the records of prior convictions are prone to error precisely because their proof is unnecessary.”
The Court elaborated, “At trial, and still more at plea hearings, a defendant may have no incentive to contest what does not matter under the law; to the contrary, he ‘may have good reason not to’—or even be precluded from doing so by the court.”
Requiring courts to determine with certainty that the defendant exclusively admitted (or that a jury found) qualifying facts ameliorates these concerns about inaccuracy in the record documents.
Such certainty could be established by an indictment and plea colloquy (or jury instructions) that “referenc[e] one alternative term to the exclusion of all others.”
C. The Insufficiency of Indictments to Prove What a Defendant Necessarily Admitted
The differing opinions in Gundy highlight that Mathis’s instruction that record documents must “speak plainly” to show that a fact was elemental is not self-defining. The panel majority thought the indictments spoke with sufficient clarity that entry of a building was elemental
while Judge Pryor characterized the documents as unclear and questioned whether indictments alone could ever satisfy the demand for certainty.
This section argues that Judge Pryor’s latter suggestion is correct—an indictment, without more, cannot form the basis of applying a prior-conviction enhancement.
In Gundy, the indictments each contained four components that shed some light on his conviction. They (1) alleged “burglary,” (2) cited the Georgia Code provision defining burglary, (3) alleged that Gundy unlawfully entered a business house with intent to commit a theft therein, and (4) identified the specific location of the alleged theft.
Gundy then pleaded guilty “[u]pon the foregoing accusation, including each and every charge and count therein contained.”
The Gundy majority considered the third component of the indictment sufficient indication that the “business house” location was elemental,
while Judge Pryor treated it as no different than the fourth element, alleging specific facts not essential to the ultimate conviction.
This example highlights the importance of how one treats indictments. In the Gundy majority’s view, when a defendant pleads guilty, a sentencing judge can “rely on the indictments, not pattern jury instructions never given.”
Judge Pryor disagreed, saying that indictments do not answer “the determinative question: at trial, what must a Georgia jury find beyond a reasonable doubt to convict the defendant of burglary?”
The resolution of this question is critically important because most prior convictions result not from trials but from guilty pleas. Though Mathis treated the archetypal record documents as an “indictment and correlative jury instructions,”
in the vast majority of cases the record will contain no such jury instructions. Can the inclusion of facts in an indictment alone “speak plainly” that those facts are elemental?
Under Mathis, the answer to that question should be no. The Court said that the categorical approach focuses solely on elements, and then went on to define elements: “At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant; and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty.”
The word “necessarily” is critical. An indictment may include facts that are not necessary to a conviction, facts that would not appear in the jury instructions if the defendant went to trial. Thus, the indictment alone cannot conclusively show that a fact was elemental. Record documents produced from guilty pleas will often show that the defendant actually admitted certain facts but not that the defendant necessarily admitted those facts. To determine which of the admitted facts were elemental, the sentencing judge will need to parse state law to predict what facts a jury would have been required to find if the case had gone to trial. This further narrows the availability of the modified categorical approach, but any other reading is hard to square with the text of Mathis and with Apprendi’s bar on judicial fact-finding.
Conclusion
The Supreme Court’s jurisprudence of prior convictions has undergone a long evolution, in which Mathis is probably just the latest step. Recent cases applying Mathis show that the decision provides sufficient tools to resolve most cases in a nonarbitrary way. In most cases, the federal judiciary can apply its core skills of common-law and statutory interpretation to identify whether an alternatively phrased statute lists elements or means. Gray areas remain, however, in courts’ use of the record documents to define their divisibility analysis.
This Note suggests that courts should adopt three interpretive clarifications of Mathis. First, they should not read its characterization of the means–element distinction as a “threshold inquiry” to require that courts adjudicate the divisibility of a statute when the case could be disposed of on the simpler grounds that the record documents do not clearly identify which statutory alternative formed the basis of the defendant’s conviction. Second, they should not apply “Taylor’s demand for certainty” to the legal question of divisibility but only to the factual question of whether the record shows that the defendant necessarily admitted (or was convicted of) a qualifying offense. And third, courts should not treat facts appearing only in the indictments as sufficient proof that a defendant “necessarily admitted” those facts, even if the defendant pleaded guilty to the indictment without qualification.
The Court’s recent decisions have placed increasing pressure on the modified categorical approach. By adopting the constructions suggested here, courts can apply the modified categorical approach in a way that is faithful to Mathis, fair to defendants, and focuses judicial resources into the inquiries that most efficiently resolve cases.
Appendix: Circuit Decisions
The following table identifies the cases considered in this Note. The criteria for inclusion were as follows: (1) the opinion cites Mathis, as reflected in the Westlaw database; (2) the opinion expresses a position on whether a statute is divisible, even if in dicta; (3) the opinion provides some independent reasoning for the divisibility determination that it reaches; and (4) the case was decided prior to October 2017. The third criterion means that the Note does not consider cases in which the court of appeals never conducted a divisibility inquiry because either the government or the defendant had conceded the point or because one party’s position was foreclosed by circuit precedent.
The columns of the table indicate: (1) the name of the case, (2) the court that decided the case, (3) the date of decision, (4) the type of case in which the divisibility issue arose, (5) whether the court found the statute divisible, (6) whether the court imposed the prior-conviction sanction, (7) whether there was a dissent from the decision, (8) whether the court based its divisibility decision in part on state case law, and (9) whether the court based its divisibility decision in part on the record documents from the prior conviction.
Case
Name |
Court |
Date |
Context |
Divisible |
Imposed
Sanction |
Dissent |
State
Case |
Record
Documents |
| Gomez-Perez v. Lynch, 829 F.3d 323 |
5th Cir. |
7/11/16 |
Immigration |
No |
No |
No |
Yes |
No |
| United States v. Horse Looking, 828 F.3d 744 |
8th Cir. |
7/11/16 |
18 U.S.C. § 922(g)(9) |
Yes |
No |
No |
No |
No |
| United States v. Lopez–Jacobo, 656 F. App’x 409 |
10th Cir. |
7/22/16 |
Guidelines |
Yes |
Yes |
No |
No |
Yes |
| United States v. Headbird, 832 F.3d 844 |
8th Cir. |
8/9/16 |
ACCA |
No |
No |
No |
Yes |
No |
| United States v. Hinkle, 832 F.3d 569 |
5th Cir. |
8/11/16 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Sheffield, 832 F.3d 296 |
D.C. Cir. |
8/12/16 |
Guidelines |
No |
No |
No |
Yes |
No |
| Chang-Cruz v. Attorney Gen., 659 F. App’x 114 |
3d. Cir |
8/24/16 |
Immigration |
No |
No |
No |
Yes |
Yes |
| United States v. Alfaro, 835 F.3d 470 |
4th Cir. |
8/29/16 |
Guidelines |
Yes |
Yes |
No |
No |
Yes |
| United States v. Lara-Martinez, 836 F.3d 472 |
5th Cir. |
9/6/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Edwards, 836 F.3d 831 |
7th Cir. |
9/8/16 |
Guidelines |
No |
No |
No |
No |
Yes |
| United States v. Fogg, 836 F.3d 951 |
8th Cir. |
9/8/16 |
ACCA |
Yes |
Yes |
Yes |
Yes |
No |
| Spaho v. Attorney Gen., 837 F.3d 1172 |
11th Cir. |
9/19/16 |
Immigration |
Yes |
Yes |
Yes |
Yes |
No |
| United States v. Howell, 838 F.3d 489 |
5th Cir. |
9/22/16 |
Guidelines |
No |
Yes |
No |
Yes |
No |
| United States v. Uribe, 838 F.3d 667 |
5th Cir. |
10/3/16 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Bryant, 669 F. App’x 238 |
5th Cir. |
10/4/16 |
Guidelines |
Yes |
Yes |
No |
No |
Yes |
| Singh v. Attorney Gen., 839 F.3d 273 |
3d Cir. |
10/6/16 |
Immigration |
Yes |
No |
No |
Yes |
Yes |
| Unites States v. De La O-Gallegos, 663 F. App’x 827 |
11th Cir. |
10/7/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Maldonado-Palma, 839 F.3d 1244 |
10th Cir. |
10/25/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Ritchey, 840 F.3d 310 |
6th Cir. |
10/26/16 |
ACCA |
No |
No |
No |
Yes |
No |
| United States v. Haney, 840 F.3d 472 |
7th Cir. |
10/27/16 |
ACCA |
No |
No |
No |
No |
No |
| In re McComb, 691 F. App’x 819 |
6th Cir. |
11/3/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Redrick, 841 F.3d 478 |
D.C. Cir. |
11/8/16 |
ACCA |
Yes |
Yes |
No |
Yes |
No |
| United States v. Henderson, 841 F.3d 623 |
3d Cir. |
11/8/16 |
ACCA |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. McFee, 842 F.3d 572 |
8th Cir. |
11/17/16 |
ACCA |
No |
No |
No |
Yes |
Yes |
| Garcia v. Lynch, 670 F. App’x 647 |
9th Cir. |
11/18/16 |
Immigration |
Yes |
Yes |
No |
No |
No |
| United States v. Cardena, 842 F.3d 959 |
7th Cir. |
11/18/16 |
18 U.S.C. § 924(c) |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. Esprit, 841 F.3d 1235 |
11th Cir. |
11/21/16 |
ACCA |
No |
No |
No |
Yes |
No |
| United States v. Gundy, 842 F.3d 1156 |
11th Cir. |
11/23/16 |
ACCA |
Yes |
Yes |
Yes |
Yes |
Yes |
| United States v. Tavares, 843 F.3d 1 |
1st Cir. |
12/1/16 |
Guidelines |
Yes |
Remand |
No |
Yes |
No |
| United States v. Taylor, 672 F. App’x 860 |
10th Cir. |
12/6/16 |
ACCA |
No |
Yes |
No |
No |
No |
| United States v. Rocha-Alvarado, 843 F.3d 802 |
9th Cir. |
12/12/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Taylor, 843 F.3d 1215 |
10th Cir. |
12/12/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Bernel-Aveja, 844 F.3d 206 |
5th Cir. |
12/13/16 |
Immigration |
No |
No |
No |
No |
No |
| United States v. Sykes, 844 F.3d 712 |
8th Cir. |
12/21/16 |
ACCA |
Yes |
Yes |
No |
No |
Yes |
| United States v. Starks, 674 F. App’x 580 |
8th Cir. |
12/28/16 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Parrow, 844 F.3d 801 |
8th Cir. |
12/30/16 |
Guidelines |
No |
Yes |
No |
Yes |
No |
| United States v. Harris, 844 F.3d 1260 |
10th Cir. |
1/4/17 |
ACCA |
Yes |
Yes |
Yes |
No |
No |
| Flores-Larrazola v. Lynch, 854 F.3d 732 |
5th Cir. |
1/6/17 |
Immigration |
Yes |
Yes |
No |
Yes |
No |
| United States v. Winston, 845 F.3d 876 |
8th Cir. |
1/10/17 |
ACCA |
Yes |
Yes |
No |
No |
No |
| Ibanez-Beltran v. Lynch, 858 F.3d 294 |
5th Cir. |
1/11/17 |
Immigration |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. Garcia-Martinez, 845 F.3d 1126 |
11th Cir. |
1/11/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Tanksley, 848 F.3d 347 |
5th Cir. |
1/18/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Hertz, 673 F. App’x 606 |
8th Cir. |
1/25/17 |
ACCA |
No |
No |
No |
No |
No |
| United States v. Solano-Hernandez, 847 F.3d 170 |
5th Cir. |
1/26/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| Sandoval v. Sessions, 866 F.3d 986 |
9th Cir. |
1/27/17 |
Immigration |
No |
No |
No |
No |
No |
| Swaby v. Yates, 847 F.3d 62 |
1st Cir. |
1/30/17 |
Immigration |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. Mendez-Henriquez, 847 F.3d 214 |
5th Cir. |
1/30/17 |
Guidelines |
Yes |
Yes |
Yes |
Yes |
Yes |
| United States v. Dozier, 848 F.3d 180 |
4th Cir. |
1/30/17 |
Guidelines |
Yes |
Yes |
No |
No |
Yes |
| United States v. Steiner, 847 F.3d 103 |
3d Cir. |
2/1/17 |
Guidelines |
No |
No |
No |
Yes |
Yes |
| Gatson v. United States, 2017 WL 3224851 |
11th Cir. |
2/1/17 |
ACCA |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. Taylor, 848 F.3d 476 |
1st Cir. |
2/8/17 |
ACCA |
Yes |
Yes |
No |
No |
No |
| United States v. Lobaton-Andrade, 861 F.3d 538 |
5th Cir. |
2/9/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Delgado-Sánchez, 849 F.3d 1 |
1st Cir. |
2/17/17 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Alexander, 680 F. App’x 388 |
6th Cir. |
2/22/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. McArthur, 850 F.3d 925 |
8th Cir. |
2/23/17 |
ACCA |
No |
No |
No |
Yes |
No |
| United States v. Irons, 849 F.3d 743 |
8th Cir. |
2/27/17 |
ACCA |
Yes |
Yes |
No |
No |
No |
| United States v. Gooch, 850 F.3d 285 |
6th Cir. |
3/2/17 |
18 U.S.C. § 924(c) |
Yes |
Yes |
No |
Yes |
Yes |
| United States v. Gonzalez-Lince, 678 F. App’x 270 |
5th Cir. |
3/8/17 |
Guidelines |
Yes |
Yes |
Yes |
No |
No |
| Chavez-Alvarez v. Attorney Gen., 850 F.3d 583 |
3d Cir. |
3/9/17 |
Immigration |
No |
No |
No |
Yes |
No |
| United States v. Hudson, 851 F.3d 807 |
8th Cir. |
3/21/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Lynn, 851 F.3d 786 |
7th Cir. |
3/24/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Titties, 852 F.3d 1257 |
10th Cir. |
3/24/17 |
ACCA |
No |
No |
Yes |
Yes |
Yes |
| United States v. Faust (Mass. Resisting Arrest), 853 F.3d 39 |
1st Cir. |
4/5/17 |
ACCA |
No |
No |
No |
No |
Yes |
| United States v. Faust (Mass. Assault and Battery on a Police Officer), 853 F.3d 39 |
1st Cir. |
4/5/17 |
ACCA |
Yes |
Remand |
No |
Yes |
Yes |
| United States v. Hall, 684 F. App’x 333 |
4th Cir. |
4/7/17 |
ACCA |
No |
No |
No |
No |
No |
| United States v. Tibbs, 685 F. App’x. 456 |
6th Cir. |
4/10/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Ama, 684 F. App’x. 736 |
10th Cir. |
4/11/17 |
ACCA |
No |
No |
No |
No |
No |
| Castendet-Lewis v. Sessions, 855 F.3d 253 |
4th Cir. |
4/25/17 |
Immigration |
No |
No |
No |
Yes |
Yes |
| United States v. Martinez-Rodriguez, 857 F.3d 282 |
5th Cir. |
5/12/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Harrison, 691 F. App’x. 440 |
9th Cir. |
5/24/17 |
ACCA |
No |
No |
No |
Yes |
No |
| Diego v. Sessions, 857 F.3d 1005 |
9th Cir. |
5/26/17 |
Asylum |
Yes |
Yes |
No |
Yes |
Yes |
| Lofties v. United States, 694 F. App’x. 996 |
6th Cir. |
6/1/17 |
ACCA |
Yes |
Yes |
No |
No |
No |
| Moring v. United States, 2017 WL 4574491 |
6th Cir. |
6/8/17 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| Ginter v. United States, 2017 WL 4570519 |
6th Cir. |
6/12/17 |
ACCA |
No |
No |
No |
No |
No |
| United States v. Rogers, 696 F. App’x 878 |
10th Cir. |
6/13/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| Harbin v. Sessions, 860 F.3d 58 |
2d Cir. |
6/21/17 |
Immigration |
No |
No |
No |
Yes |
No |
| United States v. Goodson, 700 F. App’x 417 |
6th Cir. |
6/26/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Stitt, 860 F.3d 854 |
6th Cir. |
6/27/17 |
ACCA |
No |
No |
Yes |
No |
No |
| United States v. Perez-Silvan, 861 F.3d 935 |
9th Cir. |
6/28/17 |
Immigration |
Yes |
Yes |
No |
Yes |
No |
| United States v. Calvillo-Palacios (Texas Simple Assault), 860 F.3d 1285 |
9th Cir. |
6/28/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Calvillo-Palacios (Texas Aggravated Assault), 860 F.3d 1285 |
9th Cir. |
6/28/17 |
Guidelines |
No |
Yes |
No |
Yes |
No |
| United States v. Reyes-Ochoa, 861 F.3d 582 |
5th Cir. |
6/30/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Ochoa, 861 F.3d 1010 |
9th Cir. |
7/3/17 |
Immigration |
No |
No |
No |
Yes |
Yes |
| Gordon v. Attorney Gen., 861 F.3d 1314 |
11th Cir. |
7/10/17 |
Immigration |
Yes |
No |
No |
Yes |
No |
| United States v. McMillan, 863 F.3d 1053 |
8th Cir. |
7/24/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Maldonado, 864 F.3d 893 |
8th Cir. |
7/25/17 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| United States v. Diaz, 865 F.3d 168 |
4th Cir. |
7/26/17 |
Mandatory Victims Restitution Act |
No |
No |
No |
Yes |
No |
| United States v. Martinez-Lopez (Controlled-Substance Requirement), 864 F.3d 1034 |
9th Cir. |
7/28/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Martinez-Lopez (Actus Reus Requirement), 864 F.3d 1034 |
9th Cir. |
7/28/17 |
Guidelines |
Yes |
Yes |
Yes |
Yes |
No |
| United States v. Enoch, 865 F.3d 575 |
7th Cir. |
7/28/17 |
18 U.S.C. § 924(c) |
Yes |
Yes |
No |
No |
No |
| United States v. Reyes, 866 F.3d 316 |
5th Cir. |
8/1/17 |
Guidelines |
Yes |
Yes |
Yes |
Yes |
Yes |
| United States v. Madkins, 866 F.3d 1136 |
10th Cir. |
8/8/17 |
Guidelines |
Yes |
No |
No |
No |
No |
| United States v. Pam, 867 F.3d 1191 |
10th Cir. |
8/15/17 |
ACCA |
Yes |
Yes |
No |
No |
Yes |
| United States v. Burtons, 696 F. App’x 372 |
10th Cir. |
8/17/17 |
ACCA |
Yes |
Yes |
No |
Yes |
No |
| United States v. Herrera-Serrano, 703 F. App’x 342 |
5th Cir. |
8/21/17 |
Guidelines |
Yes |
Yes |
No |
Yes |
No |
| United States v. Perlaza-Ortiz, 869 F.3d 375 |
5th Cir. |
8/23/17 |
Guidelines |
No |
No |
No |
Yes |
Yes |
| Marinelarena v. Sessions, 869 F.3d 780 |
9th Cir. |
8/23/17 |
Immigration |
Yes |
Yes |
Yes |
Yes |
No |
| United States v. Robinson, 869 F.3d 933 |
9th Cir. |
8/25/17 |
Guidelines |
No |
No |
No |
Yes |
No |
| United States v. Mata, 869 F.3d 640 |
8th Cir. |
8/25/17 |
ACCA |
Yes |
Yes |
No |
Yes |
No |
| United States v. Ocampo-Estrada, 873 F.3d 661 |
9th Cir. |
8/29/17 |
21 U.S.C. § 841(b)(1)(A) |
Yes |
No |
No |
Yes |
No |
| United States v. Reyes, 697 F. App’x 519 |
9th Cir. |
9/8/17 |
Guidelines |
Yes |
Yes |
No |
No |
No |
| Laryea v. Sessions, 871 F.3d 337 |
5th Cir. |
9/12/17 |
Immigration |
Yes |
No |
No |
No |
No |
| Totals |
|
|
|
60% |
56% |
12% |
62% |
26% |