By Craig M. Coscarelli
WHAT’S IT ABOUT?
The Descamps decision gives guidance on the correct
application of the Modified Categorical Approach (“MCA”) to determine
whether a state prior conviction for burglary really was a burglary under the
Armed Career Criminal Act (“ACCA”).
The Court explained that the MCA could only be applied to a statute if
that statute was divisible, or contained alternative language outside the
generic definition of the crime. If the
statute is not divisible, then it stands as is, but if the definition is not
the same as or narrower than the “Generic” definition of the crime,
the prior conviction does not count under the ACCA.
Precedent ACCA cases, such as Taylor v. United States, 495
U.S. 575 (1990) and Shepard v. United States, 544 U.S. 13 (2005), as well as
other ACCA cases over the past quarter-century, show there is obviously a
problem with the ACCA. Descamps is yet
another effort by the Court to give guidance to the lower courts.
In Taylor, the Court established the methodology to
determine whether a prior state conviction for burglary actually was burglary
under the ACCA. The Court first defined
burglary as: “an unlawful or unprivileged entry or remaining in a
structure or building with the intent to commit a crime.” Id. The Court then instituted the
“Categorical Approach,” which is to simply look at the language of the
state statute of conviction to see if the defendant was convicted of generic
burglary. But, since most state statutes
for burglary have language in addition to the generic definition to cover a
broader range of crimes, the Court authorized a modified version of the Categorical
Approach and called it the “MCA.” Id.
Under this MCA, the sentencing court could look at the conduct for which
the defendant was convicted if the state statute contained alternative language
outside the definition of generic burglary.
And herein lays the problem. Id.
A common misconception of the MCA by the lower courts was
that in evaluating a defendant’s conduct for which he was convicted in the
predicate offense, the courts looked at the defendant’s actual conduct–what he
did–rather than the language of the statute of conviction itself. The Descamps Court criticized the Ninth
Circuit for applying the MCA all wrong, but that same criticism could be
focused on any of the circuits since they were all guilty of the same
misapplication of the MCA. Justice Kagan
succinctly explained the correct application of the MCA, and for which
instances it should be used—and not used.
Descamps specifically addressed the MCA as it applies to
section 459 burglary in California. However, it is easy to see its
wider-reaching tentacles in evaluating other predicate offenses. If a defendant’s prior state conviction, not
his underlying conduct, does not meet the definition of the federal generic
definition of the crime, it does not qualify under the ACCA. And when the lower court looks at a
defendant’s conduct underlying the prior conviction to determine if what he did
does qualify as an ACCA predicate, this violates his Sixth Amendment right to
be tried by a jury. In essence, the
court, by evaluating the defendant’s conduct to see if he in fact committed the
generic definition of the crime, is “retrying” the defendant on that
old conviction without the benefit of the protections of his Fifth and Sixth
Amendment rights. The court is, in effect,
holding its own “trial” on its own terms. Justice Kagan calls this constitutional
violation a “constitutional rub.”
When a defendant’s prior state statute of conviction
contains an alternative, there is actually more than one crime in that
statute. For example, Florida’s burglary
statute does contain the basic elements of generic burglary under the
ACCA: unlawful entry into a structure
with the intent to commit a crime. But
it also contains the disjunctive “or,” stating a structure OR
conveyance (area around a building).
This creates 2 crimes: burglary of a structure, or burglary of a
conveyance. The MCA must be used to
determine for which one of the 2 crimes the defendant was convicted. This is the whole purpose of the MCA: to determine which crime formed the basis of
the prior conviction.
Descamps’ prior state statute of conviction was indivisible,
or did not contain an alternative.
Instead, it was too vague and did not meet the definition of generic
burglary. The sentencing court attempted
to justify using the MCA to look at what Descamps did or admitted to in order
to determine if his conviction still met the definition of generic
burglary. The Supreme Court, however,
held that the MCA can only be applied to a divisible statute, not to try to
make a vague, indivisible statute fit the generic definition of the crime.
WHO CAN IT HELP?
Descamps will help anyone whose ACCA predicate offense was a
California section 459 burglary. But
that is just a narrow view of the Court’s holding. Because Descamps makes clear when the MCA can
and cannot be used to identify a recidivist predicate offense, anyone who was
sentenced as a career offender, ACCA, or 851 should carefully examine how the
court evaluated their priors and whether those priors really did qualify in
light of the Court’s ruling in Descamps.
If the sentencing court determined a prior conviction qualified based on
what a defendant did or admitted to, and not solely on the language of the
statute of that conviction, this is contrary to the holding in Descamps and you
have a valid claim.
WHO CAN GET BACK INTO COURT?
Anyone who has a case pending on direct appeal can benefit
from Descamps. See Griffith v. Kentucky, 479 US 314, 322-23 (1987)(New rules
apply retroactive to all cases pending on direct review). And anyone who is still within their one-year
AEDPA time limit can file under their first 2255. But the big question is if there is a means
into court for those beyond the AEDPA’s one-year limit.
When a subsequent
interpretation of a statute demonstrates an individual is being incarcerated
for an act the law does not make criminal, there is a complete miscarriage of
justice. DAVIS v. United States, 417 US
333, 346-47 (1974). The ACCA, Statute 18
USC 924(e), stipulates the conditions that need to be met for a person to be an
Armed Career Criminal. Descamps is a
subsequent “interpretation” of that statute in that it defines the
method used to determine whether a person is “guilty” of violating
924(e). This interpretation in Descamps
will undoubtedly show certain individuals are “being incarcerated for an
act the law does not make criminal.”
Id. These people are
“actually innocent” of being an ACCA and habeas relief is warranted,
even beyond the expiration of AEDPA’s window.
As is always the case with a new Supreme Court ruling,
whether it is retroactive comes down to if the new rule is substantive or
procedural–whether it defines a defendant’s rights, or describes the steps
necessary to preserve those rights. In
my personal opinion, Descamps is a “watershed” rule in that it
dictates criminal procedures implicating the fairness and accuracy of a
criminal proceeding. Saffle v. Parks,
494 US 484, 495 (1990). New procedural
rules, which Descamps appears to be, can still be retroactive if they are
watershed rules. Teague v. Lane, 489 U.S.
What means could an actually innocent person use to gain
relief? The most appropriate course
seems to be the Savings Clause under section 2241 and 2255(e). A second or successive 2255 would likely fail
because only constitutional claims can be raised on 2255, while statutory
claims can be raised under ??2241, see Jones v. United States, 226 F.3d 328,
333 (4th Cir. 2000), and Descamps is a statutory issue.
CRAIG M. COSCARELLI, Paralegal
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