By Craig M. Coscarelli
The Descamps decision gives guidance on the correct application of the Modified Categorical Approach (“MCA”) to determine whether a prior state 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.
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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 (the 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 Descamps 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 Use Descamps to Get Back into Court?
Anyone who has a case pending on direct appeal can benefit from Descamps. See Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987)(New rules apply retroactively to all cases pending 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 U.S. 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 U.S. 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. 288 (1989).
What means could an actually innocent person use to gain relief? The most appropriate course seems to be the Savings Clause under sections 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.
Published Jul 22, 2013 by Christopher Zoukis, JD, MBA | Last Updated by Christopher Zoukis, JD, MBA on Aug 6, 2023 at 10:41 pm