Introduction: Descamps v. United States

On June 20, 2013, the United States Supreme Court rendered an important decision in Descamps v. United States [PDF version].1 2 The Descamps decision addressed the analysis of state criminal statutes for purpose of determining when a prior state conviction triggers the imposition of a harsher sentence under the federal Armed Career Criminals Act (ACCA) [18 U.S.C. 922(e)] [PDF version]. Although the Descamps case did not involve immigration law, the statutory interpretation issue in Descamps is analogous to that implicated when an alien argues that a given state conviction was not for an aggravated felony. Thus, the Supreme Court’s decision has wide-reaching implications for criminal aliens [see category], especially those who are accused of having committed/been convicted of an immigration aggravated felony [see article].

The Supreme Court held Descamps that where a statute consists of “a single, indivisible set of elements,” the appellate court may only consider whether the most minor conduct proscribed by the statute would constitute the crime in question (in the case of Descamps, the crime of burglary as specified in ACCA). However, if the statute is “divisible,” the appellate court may rely upon limited evidence from the record of facts to determine which element or set of elements of the statute yielded the conviction.

The Supreme Court held that a statute is divisible if it contains alternative disjunctive elements, meaning that the statute contains more than one set of elements and permits a person to be convicted under less than all such sets of elements.

This article will explain the background of the Descamps case, the concepts in question, the reasoning behind the decision, and finally the effect of the Descamps decision on immigration law.

Facts of the Descamps Case

The petitioner, Michael Descamps, was convicted of the federal crime of being a felon in possession of a firearm under 18 U.S.C. 922(g) [PDF version]. Under normal circumstances, this conviction carries a maximum sentence of 10 years in prison. However, the government relied on the Armed Career Criminals Act (ACCA) in seeking a harsher sentence for Descamps. The ACCA prescribes a mandatory minimum sentence of 15 years in prison for a person who violates section 922(g) and, as quoted from the statute by the majority opinion, “has three previous convictions … for a violent felony or a serious drug offense.”3 Included in the definition of “violent felony” found in 18 U.S.C. 924(e)(2)(B) is “burglary.”

In support of the imposition of the harsher sentence under the ACCA, the government argued that one of Descamps’ prior convictions in California constituted “burglary” under 924(e)(2)(B). The California statute in question provides that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.”4

Descamps argued that this conviction did not constitute “burglary” under federal law. Descamps advocated that appellate courts should apply the “categorical approach” to analyzing his conviction. Under the categorical approach, a court would look at the California statute as a whole and determine whether a conviction under its terms would necessarily constitute a conviction for “burglary” under federal law and for purpose of triggering the ACCA. As the Supreme Court explains in its decision, the California statute does not require proof that the entry into the premises was “unlawful,” which is a requisite for the generic crime of “burglary” included in ACCA.5 Accordingly, if the categorical approach were to be applied, Descamps’ conviction would not count as a “burglary” conviction under federal law and would not trigger enhanced penalties under the ACCA.

Conversely, the government advocated applying the “modified categorical approach” to analyzing both the statute and Descamps’ conviction. The modified categorical approach would allow appellate courts to look not only at the language of the California statute but also at evidence from the trial record in determining whether Descamps’ conviction was for a “burglary,” as defined by federal law. Using the modified categorical approach would allow courts to determine specifically what Descamps had admitted to or been convicted of., i.e., whether Descamps had engaged in conduct that constituted a “burglary” under federal law. Based on the government’s analysis, this approach supported the conclusion that Descamps’ California conviction was for a qualifying “generic burglary” that triggered enhanced sentencing under the ACCA.

Both lower courts — the District Court and the Ninth Circuit6 — that heard the case prior to the Supreme Court agreed with the government’s approach and used the modified categorical approach to find that Descamps’ criminal activity that formed the basis for his conviction under the California statute contained “the elements of generic burglary.” Accordingly, Descamps would be subject to the enhanced penalties under the ACCA. Descamps appealed the case to the Supreme Court.

The Majority Opinion in Descamps v. United States

The majority opinion in Descamps rejected both the lower courts’ use of the modified categorical approach with regard to Descamps’ California burglary conviction.

Firstly, the majority explained that the modified categorical approach is only appropriate where offenses within a statute are listed in the alternative, such that it is unclear which disjunctive aspect of the statute led to the conviction. However, if the statute contains a single, indivisible set of elements (such as the California statute that Descamps was convicted under), the modified categorical approach is not appropriate and constitutes impermissible fact-finding.

Secondly, citing its 1990 decision in Taylor v. United States [PDF version], the majority explained that if a state statute contains exclusively the same elements as a generic crime described in the ACCA, it may serve as a conviction that triggers enhanced ACCA sentencing.7 However, if the statute is broader than the generic offense, it cannot serve as a predicate offense for triggering the ACCA. This would seemingly be consistent with the reliance by both the District Court and the Ninth Circuit on the fact that the California statute was broader than generic “burglary” as a reason for using the modified categorical approach to determine whether the facts of Descamps’ criminal activities constituted generic burglary. However, the Supreme Court created a rule in Descamps that merely because statutory language is broader than the generic offense does not justify an appellate court’s using the modified categorical approach to determine whether the criminal activity itself constituted the predicate generic crime in question. Rather, the Supreme Court held, whether the modified categorical approach is appropriate is determined by whether the statute itself is divisible or indivisible, as defined above.

Following this rule, it is impossible for a conviction under the California statute to serve as an ACCA predicate because:

1. the statute is indivisible;
2. courts may not use the modified categorical approach to analyze the facts regarding a conviction under an indivisible statute; and
3. application of the categorical approach to analysis of the statute results in the determination that conduct that can lead to a conviction under the statute may or may not have the hallmarks of generic “burglary.”

Thus, because the minimum conduct required for conviction under the California burglary statute did not constitute a generic burglary, Descamps’ conviction did not qualify as a burglary under the ACCA for purpose of the imposition of an enhanced sentence.

Descamps v. United States: Applications in Immigration Law

The question presented in Descamps with regard to predicate convictions for enhanced sentencing under the ACCA is similar to the questions addressed by adjudicators in determining whether a given conviction is, for example, an immigration aggravated felony or a crime of moral turpitude (among others). The Descamps precedent is broadly favorable to aliens with criminal convictions because it prevents courts from applying the modified categorical approach to indivisible statutes prescribing a minimal conduct that does not constitute an immigration aggravated felony or a crime of moral turpitude.

However, immigration adjudicators have been left to grapple with an important question left unanswered by Descamps: In order for a statute to be “divisible,” is jury unanimity on each element of the crime listed in the statute required?

Take for example the Board of Immigration Appeals (BIA) decision in applying the Descamps holding in Matter of Chairez (2014) [PDF version].8 Matter of Chairez (2014) concerned an alien who was convicted of discharge of a firearm in Utah. The Utah statute includes “intentional” and “knowing” discharge of a firearm, both of which would be “crimes of violence” and thus immigration aggravated felonies. However, the statute also includes “reckless” discharge of a firearm, which would not be a “crime of violence” or an aggravated felony under immigration law. In resolving whether the nature of the state conviction, the BIA had to first determine whether the statute was divisible. If the statute was divisible, adjudicators could look at the facts from the trial to determine whether the respondent (the alien in this case) had been convicted of one of the two elements in the statute that would constitute an aggravated felony. However, if the statute was indivisible, the conviction could not be for an aggravated felony because the minimum conduct under the Utah statute a does not constitute aggravated felony.

In Matter of Chairez (2014), the BIA read Descamps as requiring “jury unanimity” to convict on a specific disjunctive element of the statute in order for the statute to be “divisible.” After finding that the Utah statute does not require that the jury be unanimous in determining that the discharge of the firearm was “intentional,” “knowing,” or “reckless,” the BIA held that the statute was not divisible, that the modified categorical approach was inapplicable, and that under the categorical approach the conviction was not an aggravated felony.

However, the Tenth Circuit (which includes Utah in its jurisdiction) held in United States v. Trent [PDF version] shortly thereafter that jury unanimity is not required under Descamps in order for a statute to be divisible.9 The BIA subsequently revisited Matter of Chairez (2015) [PDF version], in 2015 and found that the statute was divisible (consistent with Trent) and upheld the Immigration Judge’s use of the modified categorical approach in finding that the respondent’s conviction did in fact constitute an aggravated felony.10 However, the BIA declined to extend this reasoning outside of the areas covered by the Tenth Circuit, holding in an unpublished decision titled Matter of Sama [PDF version] (deriving from Baltimore) that jury unanimity is required in order for a statute to be divisible, and rejecting an Immigration Judge’s use of the modified categorical approach to find that the respondent in that case had been convicted of an aggravated felony.11

In order to examine the discrepancy, the Attorney General stayed both BIA decisions on October 30, 2015, and referred them to herself for review [PDF version].12 This review is still pending at the time of the writing of this article, and we shall update the article when the Attorney General renders her decision (please read Alexander J. Segal’s blog post about the review to learn more).

Conclusion: Descamps and Immigration Law

The Descamps decision is very favorable to aliens who were convicted under an indivisible statute that covers a broader set of elements than an immigration aggravated felony. In these cases, Descamps prohibits adjudicators from launching an inquiry based upon the modified categorical approach to determine whether the specific criminal conduct was an aggravated felony or not, and restricts courts to determining whether a conviction under the single set of elements listed in the statute is necessarily an aggravated felony.

As we see with the two BIA decisions under review by the Attorney General, the Descamps decision left open questions with regard to what is required in order for a statute to be divisible. However, even if the Attorney General instructs the BIA to apply the Tenth Circuit’s preferred approach (not requiring jury unanimity) in the Circuits where there is no precedent on the issue, the Descamps precedent will still limit the number of convictions that may be considered aggravated felonies.

  1. Descamps v. U.S., 570 U.S. __, 133 S.Ct. 2276 (2013)
  2. The decision was authored by Justice Elena Kagan, and she was joined by Chief Justice Roberts and Justices Scalia, Kennedy, Ginsburg, Breyer, and Sotomayor. Justice Kennedy also filed a separate concurring opinion. Justice Thomas filed an opinion that concurred in the majority’s judgment only. Justice Alito filed a dissenting opinion.
  3. 18 U.S.C. § 924(e)(1)
  4. California Penal Code Ann. § 459
  5. The decision cited: People v. Barry, 94 Cal. 481, 483-484, 29 P. 1026, 1026-1027 (1892)
  6. US v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011).
  7. Taylor v. United States, 495 U.S. 575 (1990)
  8. Matter of Chairez, 26 I&N Dec. 349 (BIA 2014)
  9. United States v. Trent, 767 F.3d 1046 (10th Cir. 2014)
  10. Matter of Chairez, 26 I&N Dec. 478 (BIA 2015)
  11. Matter of Sama, 2015 WL4761234 (BIA 2015); the BIA also relied upon Rendon v. Holder, 764 F.3d 1077, 1085, 1089 (9th Cir. 2014) which used its preferred approach to interpreting Descamps.
  12. Matter of Chairez and Sama, 26 I&N Dec. 686 (A.G. 2015)