DESCAMPS v. UNITED STATES
On September 13, 2007, a jury found Matthew R. Descamps guilty of felony possession of a firearm and ammunition. Descamps already had five previous felony convictions. Under the Armed Career Criminal Act (“ACCA”), criminals with three prior convictions for violent felonies must receive a minimum sentence of 15 years for any subsequent felony conviction. The ACCA defines a violent felony as any crime involving threatened use of physical force—or burglary—and punishable by imprisonment for a term exceeding one year. The United States District Court for the Eastern District of Washington concluded that Descamps’ prior convictions of robbery, burglary, and felony harassment constituted three predicate violent felonies under the ACCA. Subsequently, the district court sentenced Descamps to 262 months in custody with 5 years of supervised release.
Descamps appealed his sentence to the United States Court of Appeals for the Ninth Circuit, arguing that all prior convictions used to enhance a sentence under the ACCA must be charged in the indictment and submitted to a jury. A judge may only increase the sentence if the three prior convictions are proved beyond a reasonable doubt. The appellate court disagreed and affirmed the sentence.
Did the United States properly plead and prove the defendant's prior violent felony convictions for application of an enhanced sentence under the Armed Career Criminal Act?
Legal provision: Armed Career Criminal Act
No. Justice Elena Kagan delivered the opinion for the 8-1 majority. The Supreme Court held that Descamps’ ACCA enhancement was improper because a felony burglary conviction under the California Penal Code is not a generic burglary conviction. To count for sentence enhancement under the ACCA, a prior burglary conviction must at least match a conviction using the traditional elements of the offense: “breaking and entering a building.” The Court also held that the Ninth Circuit’s examination of Descamps’ burglary plea hearing transcript exceeded the purview of the Court of Appeals. The Supreme Court reiterated that sentencing courts may only consult outside documents to ascertain the basis of the defendant’s conviction (“modified categorical approach”) when the statute defines elements in the alternative—for example, “breaking and entering a building [generic] or automobile [non-generic].” California’s burglary statute does not require “unlawful entry” as an element, or an alternative element, of the offense, so courts may not use the modified categorical approach. Allowing a sentencing court to determine, from the record, whether a defendant’s prior conviction could have satisfied the traditional elements of the offense “raises serious Sixth Amendment concerns,” Such as encouraging ill-advised guilty pleas.
Justice Anthony M. Kennedy wrote a concurring opinion in which he agreed with the majority opinion’s concern that defendants would enter guilty pleas or let certain facts go uncontested without considering the potential consequences under the ACCA. He also expressed concern over the burden the majority’s opinion places on state legislatures to revise their statutes. In his opinion concurring in the judgment, Justice Clarence Thomas argued that the ACCA framework amounts to a judicial factfinding expedition that runs counter to what is allowed by previous precedent. However, because the majority opinion limited the circumstances under which courts may consult documents relating to the defendant’s prior conviction, Thomas concurred in the judgment.
Justice Samuel Alito wrote a dissenting opinion in which he contended that the majority opinion artificially limits the reach of the ACCA and treats similar convictions differently based solely on the arbitrary wording of state statutes. To remedy this problem, he argued that sentencing courts should always be permitted to consult the record to determine whether the defendant’s conviction matched the generic offense.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MATTHEW ROBERT DESCAMPS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 20, 2013]
Justice Kagan delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), increases the sentences of certain federal defendants who have three prior convictions “for a violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those crimes, courts use what has become known as the “categorical approach”: They compare the elements of the statute forming the basis of the defendant’s conviction with the elements of the “generic” crime—i.e., the offense as commonly understood. The prior conviction qualifies as an ACCA predicate only if the statute’s elements are the same as, or narrower than, those of the generic offense.
We have previously approved a variant of this method—labeled (not very inventively) the “modified categorical approach”—when a prior conviction is for violating a so-called “divisible statute.” That kind of 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. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant’s prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.
This case presents the question whether sentencing courts may also consult those additional documents when a defendant was convicted under an “indivisible” statute—i.e., one not containing alternative elements—that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case’s underlying facts, that the defendant’s prior conviction qualifies as an ACCA predicate even though the elements of the crime fail to satisfy our categorical test. Because that result would contravene our prior decisions and the principles underlying them, we hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.I
Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of 18 U. S. C. §922(g). That unadorned offense carries a maximum penalty of 10 years in prison. The Government, however, sought an enhanced sentence under ACCA, based on Descamps’ prior state convictions for burglary, robbery, and felony harassment.
ACCA prescribes a mandatory minimum sentence of 15 years for a person who violates §922(g) and “has three previous convictions . . . for a violent felony or a serious drug offense.” §924(e)(1). The Act defines a “violent felony” to mean any felony, whether state or federal, that “has as an element the use, attempted use, or threatened use of physical force against the person of another,” or that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” §924(e)(2)(B).
Descamps argued that his prior burglary conviction could not count as an ACCA predicate offense under our categorical approach. He had pleaded guilty to violating California Penal Code Ann. §459 (West 2010), which provides that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California’s does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. See People v. Barry, 94 Cal. 481, 483–484, 29 P. 1026, 1026–1027 (1892). In sweeping so widely, the state law goes beyond the normal, “generic” definition of burglary. According to Descamps, that asymmetry of offense elements precluded his conviction under §459 from serving as an ACCA predicate, whether or not his own burglary involved an unlawful entry that could have satisfied the requirements of the generic crime.
The District Court disagreed. According to the court, our modified categorical approach permitted it to examine certain documents, including the record of the plea colloquy, to discover whether Descamps had “admitted the elements of a generic burglary” when entering his plea. App. 50a. And that transcript, the court ruled, showed that Descamps had done so. At the plea hearing, the prosecutor proffered that the crime “ ‘ involve[d] the breaking and entering of a grocery store,’ ” and Descamps failed to object to that statement. Ibid. The plea proceedings, the District Court thought, thus established that Descamps’ prior conviction qualified as a generic burglary (and so as a “violent felony”) under ACCA. Applying the requisite penalty enhancement, the court sentenced Descamps to 262 months in prison—more than twice the term he would otherwise have received.
The Court of Appeals for the Ninth Circuit affirmed, relying on its recently issued decision in United States v. Aguila-Montes de Oca, 655 F. 3d 915 (2011) (en banc) (per curiam). There, a divided en banc court took much the same view of the modified categorical approach as had the District Court in this case. The en banc court held that when a sentencing court considers a conviction under §459—or any other statute that is “categorically broader than the generic offense”—the court may scrutinize certain documents to determine the factual basis of the conviction. See id., at 940. Applying that approach, the Court of Appeals here found that Descamps’ plea, as revealed in the colloquy, “rested on facts that satisfy the elements of the generic definition of burglary.” 466 Fed. Appx. 563, 565 (2012).
We granted certiorari, 567 U. S. ___ (2012), to resolve a Circuit split on whether the modified categorical approach applies to statutes like §459 that contain a single, “indivisible” set of elements sweeping more broadly than the corresponding generic offense. 1 We hold that it does not, and so reverse.II
Our caselaw explaining the categorical approach and its “modified” counterpart all but resolves this case. In those decisions, as shown below, the modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s conviction. So understood, the modified approach cannot convert Descamps’ conviction under §459 into an ACCA predicate, because that state law defines burglary not alternatively, but only more broadly than the generic offense.
We begin with Taylor v. United States, 495 U. S. 575 (1990) , which established the rule for determining when a defendant’s prior conviction counts as one of ACCA’s enumerated predicate offenses (e.g., burglary). Taylor adopted a “formal categorical approach”: Sentencing courts may “look only to the statutory definitions”—i.e., the elements—of a defendant’s prior offenses, and not “to the particular facts underlying those convictions.” Id., at 600. If the relevant statute has the same elements as the “generic” ACCA crime, then the prior conviction can serve as an ACCA predicate; so too if the statute defines the crime more narrowly, because anyone convicted under that law is “necessarily . . . guilty of all the [generic crime’s] elements.” Id., at 599. But if the statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form. The key, we emphasized, is elements, not facts. So, for example, we held that a defendant can receive an ACCA enhancement for burglary only if he was convicted of a crime having “the basic elements” of generic burglary—i.e., “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Ibid. And indeed, we indicated that the very statute at issue here, §459, does not fit that bill because “California defines ‘burglary’ so broadly as to include shoplifting.” Id., at 591.
At the same time, Taylor recognized a “narrow range of cases” in which sentencing courts—applying what we would later dub the “modified categorical approach”—may look beyond the statutory elements to “the charging paper and jury instructions” used in a case. Id., at 602. To explain when courts should resort to that approach, we hypothesized a statute with alternative elements—more particularly, a burglary statute (otherwise conforming to the generic crime) that prohibits “entry of an automobile as well as a building.” Ibid. One of those alternatives (a building) corresponds to an element in generic burglary, whereas the other (an automobile) does not. In a typical case brought under the statute, the prosecutor charges one of those two alternatives, and the judge instructs the jury accordingly. So if the case involves entry into a building, the jury is “actually required to find all the elements of generic burglary,” as the categorical approach demands. Ibid. But the statute alone does not disclose whether that has occurred. Because the statute is “divisible”—i.e., comprises multiple, alternative versions of the crime—a later sentencing court cannot tell, without reviewing something more, if the defendant’s conviction was for the generic (building) or non-generic (automobile) form of burglary. Hence Taylor permitted sentencing courts, as a tool for implementing the categorical approach, to examine a limited class of documents to determine which of a statute’s alternative elements formed the basis of the defendant’s prior conviction.
In Shepard v. United States, 544 U. S. 13 (2005) , the hypothetical we posited in Taylor became real: We confronted a Massachusetts burglary statute covering entries into “boats and cars” as well as buildings. 544 U. S., at 17. The defendant there pleaded guilty to violating the statute, and we first confirmed that Taylor’s categorical approach applies not just to jury verdicts, but also to plea agreements. That meant, we held, that a conviction based on a guilty plea can qualify as an ACCA predicate only if the defendant “necessarily admitted [the] elements of the generic offense.” Id., at 26. But as we had anticipated in Taylor, the divisible nature of the Massachusetts burglary statute confounded that inquiry: No one could know, just from looking at the statute, which version of the offense Shepard was convicted of. Accordingly, we again authorized sentencing courts to scrutinize a restricted set of materials—here, “the terms of a plea agreement or transcript of colloquy between judge and defendant”—to determine if the defendant had pleaded guilty to entering a building or, alternatively, a car or boat. Ibid. Yet we again underscored the narrow scope of that review: It was not to determine “what the defendant and state judge must have understood as the factual basis of the prior plea,” but only to assess whether the plea was to the version of the crime in the Massachusetts statute (burglary of a building) corresponding to the generic offense. Id., at 25–26 (plurality opinion).
Two more recent decisions have further emphasized the elements-based rationale—applicable only to divisible statutes—for examining documents like an indictment or plea agreement. In Nijhawan v. Holder, 557 U. S. 29 (2009) , we discussed another Massachusetts statute, this one prohibiting “ ‘ Breaking and Entering at Night’ ” in any of four alternative places: a “building, ship, vessel, or vehicle.” Id., at 35. We recognized that when a statute so “refer[s] to several different crimes,” not all of which qualify as an ACCA predicate, a court must determine which crime formed the basis of the defendant’s conviction. Ibid. That is why, we explained, Taylor and Shepard developed the modified categorical approach. By reviewing the extra-statutory materials approved in those cases, courts could discover “which statutory phrase,” contained within a statute listing “several different” crimes, “covered a prior conviction.” 557 U. S., at 41. And a year later, we repeated that understanding of when and why courts can resort to those documents: “[T]he ‘modified categorical approach’ that we have approved permits a court to determine which statutory phrase was the basis for the conviction.” Johnson v. United States, 559 U. S. 133, 144 (2010) (citation omitted).
Applied in that way—which is the only way we have ever allowed—the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach’s central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach’s basic method: comparing those elements with the generic offense’s. All the modified approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates “several different . . . crimes.” Nijhawan, 557 U. S., at 41. If at least one, but not all of those crimes matches the generic version, a court needs a way to find out which the defendant was convicted of. That is the job, as we have always understood it, of the modified approach: to identify, from among several alternatives, the crime of conviction so that the court can compare it to the generic offense. 2
The modified approach thus has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in §459. The former requires an unlawful entry along the lines of breaking and entering. See 3 W. LaFave, Substantive Criminal Law §21.1(a) (2d ed. 2003) (hereinafter LaFave). The latter does not, and indeed covers simple shoplifting, as even the Government acknowledges. See Brief for United States 38; Barry, 94 Cal., at 483–484, 29 P., at 1026–1027. In Taylor’s words, then, §459 “define[s] burglary more broadly” than the generic offense. 495 U. S., at 599. And because that is true—because California, to get a conviction, need not prove that Descamps broke and entered—a §459 violation cannot serve as an ACCA predicate. Whether Descamps did break and enter makes no difference. And likewise, whether he ever admitted to breaking and entering is irrelevant. Our decisions authorize review of the plea colloquy or other approved extra-statutory documents only when a statute defines burglary not (as here) overbroadly, but instead alternatively, with one statutory phrase corresponding to the generic crime and another not. In that circumstance, a court may look to the additional documents to determine which of the statutory offenses (generic or non-generic) formed the basis of the defendant’s conviction. But here no uncertainty of that kind exists, and so the categorical approach needs no help from its modified partner. We know Descamps’ crime of conviction, and it does not correspond to the relevant generic offense. Under our prior decisions, the inquiry is over.III
The Court of Appeals took a different view. Dismissing everything we have said on the subject as “lack[ing] conclusive weight,” the Ninth Circuit held in Aguila-Montes that the modified categorical approach could turn a conviction under any statute into an ACCA predicate offense. 655 F. 3d, at 931. The statute, like §459, could contain a single, indivisible set of elements covering far more conduct than the generic crime—and still, a sentencing court could “conside[r] to some degree the factual basis for the defendant’s conviction” or, otherwise stated, “the particular acts the defendant committed.” Id., at 935–936. More specifically, the court could look to reliable materials (the charging document, jury instructions, plea colloquy, and so forth) to determine “what facts” can “confident[ly]” be thought to underlie the defendant’s conviction in light of the “prosecutorial theory of the case” and the “facts put forward by the government.” Id., at 936–937. It makes no difference, in the Ninth Circuit’s view, whether “specific words in the statute” of conviction “ ‘ actually required’ ” the jury (or judge accepting a plea) “to find a particular generic element.” Id., at 936 (quoting Taylor, 495 U. S., at 602; internal quotation marks omitted). 3
That approach—which an objecting judge aptly called “modified factual,” 655 F. 3d, at 948 (Berzon, J., concurring in judgment)—turns an elements-based inquiry into an evidence-based one. It asks not whether “statutory definitions” necessarily require an adjudicator to find the generic offense, but instead whether the prosecutor’s case realistically led the adjudicator to make that determination. And it makes examination of extra-statutory documents not a tool used in a “narrow range of cases” to identify the relevant element from a statute with multiple alternatives, but rather a device employed in every case to evaluate the facts that the judge or jury found. By this point, it should be clear that the Ninth Circuit’s new way of identifying ACCA predicates has no roots in our precedents. But more: Aguila-Montes subverts those decisions, conflicting with each of the rationales supporting the categorical approach and threatening to undo all its benefits.A
This Court offered three grounds for establishing our elements-centric, “formal categorical approach.” Taylor, 495 U. S., at 600. First, it comports with ACCA’s text and history. Second, it avoids the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries. And third, it averts “the practical difficulties and potential unfairness of a factual approach.” Id., at 601. When assessed in light of those three reasons, the Ninth Circuit’s ruling strikes out swinging.
Start with the statutory text and history. As we have long recognized, ACCA increases the sentence of a defendant who has three “previous convictions” for a violent felony—not a defendant who has thrice committed such a crime. 18 U. S. C. §924(e)(1); see Taylor, 495 U. S., at 600. That language shows, as Taylor explained, that “Congress intended the sentencing court to look only to the fact that the defendant had been convicted of crimes falling within certain categories, and not to the facts underlying the prior convictions.” Ibid.; see Shepard, 544 U. S., at 19. If Congress had wanted to increase a sentence based on the facts of a prior offense, it presumably would have said so; other statutes, in other contexts, speak in just that way. See Nijhawan, 557 U. S., at 36 (construing an immigration statute as requiring a “ ‘circumstance-specific,’ not a ‘categorical,’ ” approach). But in ACCA, Taylor found, Congress made a deliberate decision to treat every conviction of a crime in the same manner: During the lengthy debate preceding the statute’s enactment, “no one suggested that a particular crime might sometimes count towards enhancement and sometimes not, depending on the facts of the case.” 495 U. S., at 601. Congress instead meant ACCA to function as an on-off switch, directing that a prior crime would qualify as a predicate offense in all cases or in none.
The Ninth Circuit’s approach runs headlong into that congressional choice. Instead of reviewing documents like an indictment or plea colloquy only to determine “which statutory phrase was the basis for the conviction,” the Ninth Circuit looks to those materials to discover what the defendant actually did. Johnson, 559 U. S., at 144. This case demonstrates the point. Descamps was not convicted of generic burglary, because (as the Government agrees) §459 does not contain that crime’s required unlawful-entry element. See Brief for United States 38, 43–44. At most, the colloquy showed that Descamps committed generic burglary, and so hypothetically could have been convicted under a law criminalizing that conduct. But that is just what we said, in Taylor and elsewhere, is not enough. See 495 U. S., at 600; Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010) (slip op., at 11) (rejecting such a “ ‘ hypothetical approach’ ” given a similar statute’s directive to “look to the conviction itself,” rather than “to what might have or could have been charged”). And the necessary result of the Ninth Circuit’s method is exactly the differential treatment we thought Congress, in enacting ACCA, took care to prevent. In the two years since Aguila-Montes, the Ninth Circuit has treated some, but not other, convictions under §459 as ACCA predicates, based on minor variations in the cases’ plea documents. Compare, e.g., 466 Fed. Appx., at 565 (Descamps’ §459 conviction counts as generic burglary), with 655 F. 3d, at 946 (Aguila-Montes’ does not).
Similarly, consider (though Aguila-Montes did not) the categorical approach’s Sixth Amendment underpinnings. We have held 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.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) . Under ACCA, the court’s finding of a predicate offense indisputably increases the maximum penalty. Accordingly, that finding would (at the least) raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction. Those concerns, we recognized in Shepard, counsel against allowing a sentencing court to “make a disputed” determination “about what the defendant and state judge must have understood as the factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the theory of the crime. 544 U. S., at 25 (plurality opinion); see id., at 28 (Thomas, J., concurring in part and concurring in judgment) (stating that such a finding would “giv[e] rise to constitutional error, not doubt”). Hence our insistence on the categorical approach.
Yet again, the Ninth Circuit’s ruling flouts our reasoning—here, by extending judicial factfinding beyond the recognition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identifying the defendant’s crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit’s reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant’s underlying conduct. See Aguila-Montes, 655 F. 3d, at 937. And there’s the constitutional rub. The Sixth Amendment contemplates that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt. And the only facts the court can be sure the jury so found are those constituting elements of the offense—as distinct from amplifying but legally extraneous circumstances. See, e.g., Richardson v. United States, 526 U. S. 813, 817 (1999) . Similarly, as Shepard indicated, when a defendant pleads guilty to a crime, he waives his right to a jury determination of only that offense’s elements; whatever he says, or fails to say, about superfluous facts cannot license a later sentencing court to impose extra punishment. See 544 U. S., at 24–26 (plurality opinion). So when the District Court here enhanced Descamps’ sentence, based on his supposed acquiescence to a prosecutorial statement (that he “broke and entered”) irrelevant to the crime charged, the court did just what we have said it cannot: rely on its own finding about a non-elemental fact to increase a defendant’s maximum sentence.
Finally, the Ninth Circuit’s decision creates the same “daunting” difficulties and inequities that first encouraged us to adopt the categorical approach. Taylor, 495 U. S., at 601–602. In case after case, sentencing courts following Aguila-Montes would have to expend resources examining (often aged) documents for evidence that a defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, although unnecessary to the crime of conviction, satisfy an element of the relevant generic offense. The meaning of those documents will often be uncertain. And the statements of fact in them may be downright wrong. A defendant, after all, often has little incentive to contest facts that are not elements of the charged offense—and may have good reason not to. At trial, extraneous facts and arguments may confuse the jury. (Indeed, the court may prohibit them for that reason.) And during plea hearings, the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations. In this case, for example, Descamps may have let the prosecutor’s statement go by because it was irrelevant to the proceedings. He likely was not thinking about the possibility that his silence could come back to haunt him in an ACCA sentencing 30 years in the future. (Actually, he could not have been thinking that thought: ACCA was not even on the books at the time of Descamps’ burglary conviction.)
Still worse, the Aguila-Montes approach will deprive some defendants of the benefits of their negotiated plea deals. Assume (as happens every day) that a defendant surrenders his right to trial in exchange for the government’s agreement that he plead guilty to a less serious crime, whose elements do not match an ACCA offense. Under the Ninth Circuit’s view, a later sentencing court could still treat the defendant as though he had pleaded to an ACCA predicate, based on legally extraneous statements found in the old record. Taylor recognized the problem: “[I]f a guilty plea to a lesser, nonburglary offense was the result of a plea bargain,” the Court stated, “it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty” to generic burglary. 495 U. S., at 601–602. That way of proceeding, on top of everything else, would allow a later sentencing court to rewrite the parties’ bargain.B
The Ninth Circuit defended its (excessively) modified approach by denying any real distinction between divisible and indivisible statutes extending further than the generic offense. “The only conceptual difference,” the court reasoned, “is that [a divisible statute] creates an explicitly finite list of possible means of commission, while [an indivisible one] creates an implied list of every means of commission that otherwise fits the definition of a given crime.” Aguila-Montes, 655 F. 3d, at 927. For example, an indivisible statute “requir[ing] use of a ‘weapon’ is not meaningfully different”—or so says the Ninth Circuit—“from a statute that simply lists every kind of weapon in existence . . . (‘gun, axe, sword, baton, slingshot, knife, machete, bat,’ and so on).” Ibid. In a similar way, every indivisible statute can be imaginatively reconstructed as a divisible one. And if that is true, the Ninth Circuit asks, why limit the modified categorical approach only to explicitly divisible statutes?
The simple answer is: Because 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. A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. See, e.g., The Confiscation Cases, 20 Wall. 92, 104 (1874) (“[A]n indictment or a criminal information which charges the person accused, in the disjunctive, with being guilty of one or of another of several offences, would be destitute of the necessary certainty, and would be wholly insufficient”). 4 And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt. So assume, along the lines of the Ninth Circuit’s example, that a statute criminalizes assault with any of eight specified weapons; and suppose further, as the Ninth Circuit did, that only assault with a gun counts as an ACCA offense. A later sentencing court need only check the charging documents and instructions (“Do they refer to a gun or something else?”) to determine whether in convicting a defendant under that divisible statute, the jury necessarily found that he committed the ACCA-qualifying crime.
None of that is true of an overbroad, indivisible statute. A sentencing court, to be sure, can hypothetically reconceive such a statute in divisible terms. So, as Aguila-Montes reveals, a court blessed with sufficient time and imagination could devise a laundry list of potential “weapons”—not just the eight the Ninth Circuit mentioned, but also (for starters) grenades, pipe bombs, spears, tire irons, BB guns, nunchucks, and crossbows. But the thing about hypothetical lists is that they are, well, hypothetical. As long as the statute itself requires only an indeterminate “weapon,” that is all the indictment must (or is likely to) allege and all the jury instructions must (or are likely to) mention. And most important, that is all the jury must find to convict the defendant. The jurors need not all agree on whether the defendant used a gun or a knife or a tire iron (or any other particular weapon that might appear in an imagined divisible statute), because the actual statute requires the jury to find only a “weapon.” And even if in many cases, the jury could have readily reached consensus on the weapon used, a later sentencing court cannot supply that missing judgment. Whatever the underlying facts or the evidence presented, the defendant still would not have been convicted, in the deliberate and considered way the Constitution guarantees, of an offense with the same (or narrower) elements as the supposed generic crime (assault with a gun).
Indeed, accepting the Ninth Circuit’s contrary reasoning would altogether collapse the distinction between a categorical and a fact-specific approach. After all, the Ninth Circuit’s “weapons” example is just the tip of the iceberg: Courts can go much further in reconceiving indivisible statutes as impliedly divisible ones. In fact, every element of every statute can be imaginatively transformed as the Ninth Circuit suggests—so that every crime is seen as containing an infinite number of sub-crimes corresponding to “all the possible ways an individual can commit” it. Aguila-Montes, 655 F. 3d, at 927. (Think: Professor Plum, in the ballroom, with the candlestick?; Colonel Mustard, in the conservatory, with the rope, on a snowy day, to cover up his affair with Mrs. Peacock?) If a sentencing court, as the Ninth Circuit holds, can compare each of those “implied . . . means of commission” to the generic ACCA offense, ibid. (emphasis deleted), then the categorical approach is at an end. At that point, the court is merely asking whether a particular set of facts leading to a conviction conforms to a generic ACCA offense. And that is what we have expressly and repeatedly forbidden. Courts may modify the categorical approach to accommodate alternative “statutory definitions.” Ibid.; cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 225 (1994) (“ ‘ [T]o modify’ means to change moderately or in minor fashion”). They may not, by pretending that every fact pattern is an “implied” statutory definition, Aguila-Montes, 655 F. 3d, at 927, convert that approach into its opposite.IV
The Government tries to distance itself from the Ninth Circuit by offering a purportedly narrower theory—that although an indivisible statute that is “truly missing” an element of the generic offense cannot give rise to an ACCA conviction, California’s burglary law can do so because it merely “contains a broader version of the [generic] element of unlawfulness of entry.” Brief for United States 11–12. The Government’s argument proceeds in three steps. It begins from the premise that sentencing courts applying ACCA should consider not only the statute defining a prior crime but also any judicial interpretations of it. Next, the Government points to a California decision holding (not surprisingly) that a defendant cannot “burglariz[e] his own home”; the case’s reasoning, the Government notes, is that §459 (though not saying so explicitly) requires “an entry which invades a possessory right.” People v. Gauze, 15 Cal. 3d 709, 713–716, 542 P. 2d 1365, 1367–1368 (1975). Given that precedent, the Government contends, §459 includes a kind of “unlawful entry” element, although it is broader than the generic crime’s analogous requirement. Finally, the Government asserts that sentencing courts may use the modified approach “to determine whether a particular defendant’s conviction under” such an overbroad statute actually “was for [the] generic” crime. Brief for United States 11.
Although elaborately developed in the Government’s brief, this argument’s first two steps turn out to be sideshows. We may reserve the question whether, in determining a crime’s elements, a sentencing court should take account not only of the relevant statute’s text, but of judicial rulings interpreting it. And we may assume, as the Government insists, that California caselaw treats §459 as including an element of entry “invading a possessory right”—although, truth be told, we find the state decisions on that score contradictory and confusing. 5 Even on those assumptions, §459’s elements do not come into line with generic burglary’s. As the Government concedes, almost every entry onto another’s property with intent to steal—including, for example, a shoplifter’s walking into an open store—“invades a possessory right” under §459. See Brief for United States 38; Gauze, 15 Cal. 3d, at 714, 542 P. 2d, at 1367. By contrast, generic burglary’s unlawful-entry element excludes any case in which a person enters premises open to the public, no matter his intent; the generic crime requires breaking and entering or similar unlawful activity. See Brief for United States 38; LaFave §21.1(a). So everything rests on the Government’s third point: that this mismatch does not preclude applying the modified categorical approach, because it results not from a missing element but instead from an element’s overbreadth.
But for starters, we see no principled way to make that distinction. Most overbroad statutes can also be characterized as missing an element; and most statutes missing an element can also be labeled overbroad. Here is the only conclusion in Aguila-Montes we agree with: “[I]t is difficult, if not impossible” to determine which is which. 655 F. 3d, at 925. The example that court gave was as follows: A statute of conviction punishes possession of pornography, but a federal law carries a sentence enhancement for possession of child pornography. Is the statute of conviction overbroad because it includes both adult and child pornography; or is that law instead missing the element of involvement of minors? The same name game can be played with §459. The Government labors mightily to turn what it fears looks like a missing-element statute into an overbroad statute through the incorporation of judicial decisions. But even putting those decisions aside, the Government might have described §459 as merely having an overbroad element because “entry” includes both the lawful and the unlawful kind. And conversely, Descamps could claim that even as judicially interpreted, §459 is entirely missing generic burglary’s element of breaking and entering or similar unlawful conduct. All is in the eye of the beholder, and prone to endless manipulation.
In any event, and more fundamentally, we see no reason why the Government’s distinction should matter. Whether the statute of conviction has an overbroad or missing element, the problem is the same: Because of the mismatch in elements, a person convicted under that statute is never convicted of the generic crime. In this case, for example, Descamps was not convicted of generic burglary because §459, whether viewed as missing an element or containing an overbroad one, does not require breaking and entering. So every reason we have given—textual, constitutional, and practical—for rejecting the Ninth Circuit’s proposed approach applies to the Government’s as well. See supra, at 12–16. At bottom, the Government wants the same thing as the Ninth Circuit (if nominally in a few fewer cases): It too wishes a sentencing court to look beyond the elements to the evidence or, otherwise said, to explore whether a person convicted of one crime could also have been convicted of another, more serious offense. But that circumstance-specific review is just what the categorical approach precludes. And as we have explained, we adopted the modified approach to help implement the categorical inquiry, not to undermine it.V
Descamps may (or may not) have broken and entered, and so committed generic burglary. But §459—the crime of which he was convicted—does not require the factfinder (whether jury or judge) to make that determination. Because generic unlawful entry is not an element, or an alternative element, of §459, a conviction under that statute is never for generic burglary. And that decides this case in Descamps’ favor; the District Court should not have enhanced his sentence under ACCA. 6 That court and the Ninth Circuit erred in invoking the modified categorical approach to look behind Descamps’ conviction in search of record evidence that he actually committed the generic offense. The modified approach does not authorize a sentencing court to substitute such a facts-based inquiry for an elements-based one. A court may use the modified approach only to determine which alternative element in a divisible statute formed the basis of the defendant’s conviction. Accordingly, we reverse the judgment of the Court of Appeals.
It is so ordered.
1 Compare, e.g., 466 Fed. Appx. 563, 565 (CA9 2012) (case below) (applying the modified categorical approach to §459); United States v. Armstead, 467 F. 3d 943, 947–950 (CA6 2006) (applying that approach to a similar, indivisible statute), with, e.g., United States v. Beardsley, 691 F. 3d 252, 268–274 (CA2 2012) (holding that the modified categorical approach applies only to divisible statutes); United States v. Giggey, 551 F. 3d 27, 40 (CA1 2008) (en banc) (same).
2 The dissent delves into the nuances of various States’ laws in an effort to cast doubt on this understanding of our prior holdings, arguing that we used the modified categorical approach in cases like Taylor, Shepard, and Johnson “in relation to statutes that may not have been divisible” in the way that we have just described. Post, at 5 (Alito, J.). But if, as the dissent claims, the state laws at issue in those cases set out “merely alternative means, not alternative elements” of an offense, post, at 7, that is news to us. And more important, it would have been news to the Taylor, Shepard, and Johnson Courts: All those decisions rested on the explicit premise that the laws “contain[ed] statutory phrases that cover several different . . . crimes,” not several different methods of committing one offense. Johnson, 559 U. S., at 144 (citing Nijhawan, 557 U. S., at 41). And if the dissent’s real point is that distinguishing between “alternative elements” and “alternative means” is difficult, we can see no real-world reason to worry. 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.
3 The dissent, as we understand it, takes the same view as the Ninth Circuit; accordingly, each of the reasons—statutory, constitutional, and practical—that leads us to reject Aguila-Montes proves fatal to the dissent’s position as well. The dissent several times obscures its call to explore facts with language from our categorical cases, asking whether “the relevant portions of the state record clearly show that the jury necessarily found, or the defendant necessarily admitted, the elements of [the] generic [offense].” Post, at 14; see Shepard, 544 U. S., at 24 (plurality opinion) (reiterating Taylor’s “demanding requirement that . . . a prior conviction ‘necessarily’ involve” a jury finding on each elementof the generic offense) (emphasis added). But the dissent nowhere explains how a factfinder can have “necessarily found” a non-element—that is, a fact that by definition is not necessary to support a conviction. The dissent’s fundamental view is that a sentencing court should be able to make reasonable “inference[s]” about what the factfinder really (even though not necessarily) found. See post, at 15. That position accords with our dissenting colleague’s previously expressed skepticism about the categorical approach. See Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (slip op., at 11) (Alito, J., dissenting) (“I would hold that the categorical approach is not controlling where the state conviction at issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard and a substantial number that do not. In such situations, it is appropriate to look beyond the elements of the state offense and to rely as well on facts that were admitted in state court or that, taking a realistic view, were clearly proved”). But there are several decades of water over that dam, and the dissent offers no newly persuasive reasons for revisiting our precedents.
4 See also 1 C. Wright & A. Leipold, Federal Practice and Procedure: Criminal §125, pp. 550–551 (4th ed. 2008) (“If a single statute sets forth several different offenses, [a] pleading . . . that does not indicate which crime [the] defendant allegedly committed is insufficient”); 5 W.LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §19.3(a), p. 263 (3d ed. 2007) (“[W]here a statute specifies several different ways in which the crime can be committed, [courts often] hold that the pleading must refer to the particular alternative presented in the individual case”).
5 Several decisions treat “invasion of a possessory right” as an aspect of §459’s entry element, see, e.g., People v. Waidla, 22 Cal. 4th 690, 723, 996 P. 2d 46, 65 (2000); Fortes v. Sacramento Munic. Ct. Dist., 113 Cal. App. 3d 704, 712–714, 170 Cal. Rptr. 292, 296–297 (1980), but others view the issue of possessory right as bearing only on the affirmative defense of consent, see, e.g., People v. Sherow, 196 Cal. App. 4th 1296, 1303–1305, 1311, and n. 9, 128 Cal. Rptr. 3d 255, 260–261, 266, and n. 9 (2011); People v. Felix, 23 Cal. App. 4th 1385, 1397, 28 Cal. Rptr. 2d 860, 867 (1994). And California’s pattern jury instructions do not require the jury to find invasion of a possessory right before convicting a defendant of burglary. See 1 Cal. Jury Instr., Crim., No. 1700 (2012).
6 The Government here forfeited an alternative argument that §459 qualifies as a predicate offense under ACCA’s “residual clause,” which covers statutes “involv[ing] conduct that presents a serious potential risk of physical injury to another.” 18 U. S. C. §924(e)(2)(B)(ii). We express no view on that argument’s merits. Compare United States v. Mayer, 560 F. 3d 948, 960–963 (CA9 2009) (holding that Oregon’s burglary statute falls within the residual clause, even though it does not include all of generic burglary’s elements), with id., at 951 (Kozinski, C. J., dissenting from denial of rehearing en banc) (arguing that the panel opinion “is a train wreck in the making”).
SUPREME COURT OF THE UNITED STATES
MATTHEW ROBERT DESCAMPS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 20, 2013]
Justice Alito, dissenting.
The Court holds, on highly technical grounds, that no California burglary conviction qualifies as a burglary conviction under the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(c). This is so, according to the Court, because (1) burglary under California law is broader than so-called “generic burglary”—unlawfully entering or remaining in a building with the intent to commit a crime; (2) the California burglary statute is not “divisible”; and (3) our “modified categorical approach” cannot be used in a case involving an indivisible statute. Even when it is apparent that a California burglary conviction was based on what everyone imagines when the term “burglary” is mentioned—e.g., breaking into a home to steal valuables—that conviction, the Court holds, must be ignored.
I would give ACCA a more practical reading. When it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of generic burglary, the conviction should qualify. Petitioner’s burglary conviction meets that requirement, and I would therefore affirm the decision of the Court of Appeals.I
Before petitioner was charged in the case now before us, he had already compiled a criminal record that included convictions in Washington State for assault and threatening to kill a judge, and convictions in California for robbery and burglary. See App. 11a–12a; 466 Fed. Appx. 563, 565 (CA9 2012). After his release from custody for these earlier crimes, petitioner fired a gun in the direction of a man who supposedly owed him money for methamphetamine, and as a result, he was charged in federal court with possession of a firearm by a convicted felon, in violation of §922(g)(1). A jury found him guilty, and the District Court imposed an enhanced sentence under ACCA because he had the requisite number of previous convictions for “a violent felony or a serious drug offense.” §924(e). ACCA defines a “violent felony” to include a “burglary” that is “punishable by imprisonment for a term exceeding one year,” §924(e)(2)(B), and both the District Court and the Court of Appeals found that petitioner’s California bur-glary conviction fit this definition.
While the concept of a conviction for burglary might seem simple, things have not worked out that way under our case law. In Taylor v. United States, 495 U. S. 575, 599 (1990) , we held that “burglary” under ACCA means what we called “generic burglary,” that is, the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Determining whether a burglary conviction qualifies under this definition is easy if the elements set out in the state statute are the same as or narrower than the elements of generic burglary, see ibid., but what if the state offense is broader? In that event, we have held, a federal court may sometimes apply what we have termed the “modified categorical approach,” that is, it may examine some items in the state-court record, including charging documents, jury instructions, and statements made at guilty plea proceedings, to determine if the defendant was actually found to have committed the elements of the generic offense. See Shepard v. United States, 544 U. S. 13, 20 (2005) ; Taylor, supra, at 602.
Petitioner argues that his 1978 conviction for burglary under California Penal Code §459 does not qualify as a burglary conviction for ACCA purposes because of the particular way in which this provision is worded. Section 459 provides that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” Cal. Penal Code Ann. §459 (West 2010). This provision is broader than generic burglary in two respects.
The first, which does not preclude application of the modified categorical approach, concerns the place burglarized. While generic burglary applies only to offenses involving the entry of a building, the California provision also reaches offenses involving the entry of some other locations, see ibid. Under our cases, however, a federal court considering whether to apply ACCA may determine, based on an examination of certain relevant documents, whether the conviction was actually based on the entry of a building and, if it was, may impose an increased sentence. See Johnson v. United States, 559 U. S. 133, 144 (2010) ; Nijhawan v. Holder, 557 U. S. 29, 35 (2009) ; Shepard, supra, at 26.
The second variation is more consequential. Whereas generic burglary requires an entry that is unlawful or unprivileged, the California statute refers without qualification to “[e]very person who enters.” §459. Petitioner argues, and the Court agrees, that this discrepancy renders the modified categorical approach inapplicable to his California burglary conviction.II
The Court holds that “sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” Ante, at 2. Because the Court’s holding is based on the distinction between “divisible” and “indivisible” statutes, it is important to identify precisely what this taxonomy means.
My understanding is that a statute is divisible, in the sense used by the Court, only if the offense in question includes as separate elements all of the elements of the generic offense. By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction. See ante, at 14 (citing Richardson v. United States, 526 U. S. 813, 817 (1999) ). And although the Court reserves decision on the question whether a sentencing court may take authoritative judicial decisions into account in identifying the elements of a statute, see ante, at 20, I will assume that a sentencing court may do so. While the elements of a criminal offense are generally set out in the statutory text, courts sometimes find that unmentioned elements are implicit. See, e.g., Neder v. United States, 527 U. S. 1, 20 (1999) (holding that federal mail fraud, wire fraud, and bank fraud statutes require proof of materiality even though that element is not mentioned in the statutory text). I cannot think of any reason why an authoritative decision of this sort should be ignored, and the Court has certainly not provided any. I therefore proceed on the assumption that a statute is divisible if the offense, as properly construed, has the requisite elements.
The Court’s holding that the modified categorical approach may be used only when a statute is divisible in this sense is not required by ACCA or by our prior cases and will cause serious practical problems.A
Nothing in the text of ACCA mandates the Court’s exclusive focus on the elements of an offense. ACCA increases the sentence of a defendant who has “three previous convictions . . . for a violent felony,” 18 U. S. C. §924(e)(1) (emphasis added), and the Court claims that the word “convictions” mandates a narrow, elements-based inquiry, see ante, at 12. But “[i]n ordinary speech, when it is said that a person was convicted of or for doing something, the ‘something’ may include facts that go beyond the bare elements of the relevant criminal offense.” Moncrieffe v. Holder, 569 U. S. ___, ___ (2013) (Alito, J., dissenting) (slip op., at 10–11).
Nor is an exclusively elements-based inquiry mandated by ACCA’s definition of a “violent felony” as “any crime . . . that . . . is burglary,” §924(e)(2)(B)(ii). In drafting that provision, Congress did not say “any crime that has the elements of burglary.” Indeed, the fact that Congress referred to “elements” elsewhere in the same subparagraph, see §924(e)(2)(B)(i) (defining “violent felony” to mean any crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another” (emphasis added)), but omitted any reference to elements from §924(e)(2)(B)(ii) suggests, if anything, that it did not intend to focus exclusively on elements. Cf. Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U. S. ___, ___ (2012) (slip op., at 14–15).
The Court says that our precedents require an elements-based approach and accuses the Court of Appeals of “flout[ing] our reasoning” in Taylor, Shepard, Nijhawan, and Johnson, see ante, at 5–8, 14, but that charge is unfounded. In at least three of those cases, the Court thought that the modified categorical approach could be used in relation to statutes that may not have been divisible.
Shepard concerned prior convictions under two Massachusetts burglary statutes that applied not only to the entry of a “building” (as is the case with generic burglary) but also to the entry of a “ship, vessel, or vehicle.” Mass. Gen. Laws Ann., ch. 266, §16 (West 2000). See also §18; 544 U. S., at 17. And the Shepard Court did not think that this feature of the Massachusetts statutes precluded the application of the modified categorical approach. See id., at 25–26; ante, at 6–7. See also Nijhawan, 557 U. S., at 35 (discussing Shepard).
In today’s decision, the Court assumes that “building” and the other locations enumerated in the Massachusetts statutes, such as “vessel,” were alternative elements, but that is questionable. It is quite likely that the entry of a building and the entry of a vessel were simply alternative means of satisfying an element. See Commonwealth v. Cabrera, 449 Mass. 825, 827, 874 N. E. 2d 654, 657 (2007) (“The elements of breaking and entering in the nighttime with intent to commit a felony are (1) breaking and (2) entering a building, ship, vessel or vehicle belonging to another (3) at night, (4) with the intent to commit a felony”). “[L]egislatures frequently enumerate alternative means of committing a crime without intending to define separate elements or separate crimes.” Schad v. Arizona, 501 U. S. 624, 636 (1991) (plurality). The feature that distinguishes elements and means is the need for juror agreement, see Richardson, supra, at 817, and therefore in determining whether the entry of a building and the entry of a vessel are elements or means, the critical question is whether a jury would have to agree on the nature of the place that a defendant entered.
A case that we decided earlier this Term illustrates why “building” and “vessel” may have been means and not separate elements. In Lozman v. Riviera Beach, 568 U. S. ___ (2013), we were required to determine whether a “floating home” (a buoyant but not very sea-worthy dwelling) was a “vessel.” Seven of us thought it was not; two of us thought it might be. Compare id., at ___ (slip op. at 1), with id., at ___ (slip op., at 12). (Sotomayor, J., dissenting). Suppose that a defendant in Massachusetts was charged with breaking into a structure like the Lozman floating home. In order to convict, would it be necessary for the jury to agree whether this structure was a “building” or a “vessel”? If some jurors insisted it was a building and others were convinced it was a vessel, would the jury be hung? The Court’s answer is “yes.” According to the Court, if a defendant had been charged with burglarizing the Lozman floating home and this Court had been sitting as the jury, the defendant would have escaped conviction for burglary, no matter how strong the evidence, because the “jury” could not agree on whether he burglarized a building or a vessel.
I have not found a Massachusetts decision squarely on point, but there is surely an argument that the Massachusetts Legislature did not want to demand juror agreement on this question. In other words, there is a strong argument that entry of a “building” and entry of a “vessel” are merely alternative means, not alternative elements. And if that is so, the reasoning in Shepard undermines the Court’s argument that the modified categorical approach focuses solely on elements and not on conduct.
Johnson, like Shepard, involved a statute that may have set out alternative means, rather than alternative elements. Under the Florida statute involved in that case, a battery occurs when a person either “1. [a]ctually and intentionally touches or strikes another person against the will of the other; or 2. [i]ntentionally causes bodily harm to another person.” Fla. Stat. §784.03(1)(a) (2010). It is a distinct possibility (one not foreclosed by any Florida decision of which I am aware) that a conviction under this provision does not require juror agreement as to whether a defendant firmly touched or lightly struck the victim. Nevertheless, in Johnson, we had no difficulty concluding that the modified categorical approach could be applied. 1 See 559 U. S., at 137. 2
Far from mandating the Court’s approach, these decisions support a practical understanding of the modified categorical approach. Thus, in Shepard, we observed that the factual circumstances of a defendant’s prior conviction may be relevant to determining whether it qualifies as a violent felony under ACCA. See 544 U. S., at 20–21 (“With such material in a pleaded case, a later court could generally tell whether the plea had ‘necessarily’ rested on the fact identifying the burglary as generic, just as the details of instructions could support that conclusion in the jury case, or the details of a generically limited charging document would do in any sort of case” (emphasis added; citation omitted)); id., at 24 (plurality opinion) (“Developments in the law since Taylor . . . provide a further reason to adhere to the demanding requirement that . . . a prior conviction ‘necessarily’ involved (and a prior plea necessarily admitted) facts equating to generic burglary” (emphasis added)); id., at 25 (noting that, in the context of a nongeneric burglary statute, unless the charging documents “narro[w] the charge to generic limits, the only certainty of a generic finding lies in jury instructions, or bench-trial findings and rulings, or (in a pleaded case) in the defendant’s own admissions or accepted findings of fact confirming the factual basis for a valid plea” (emphasis added)). And in Nijhawan, we departed from the categorical approach altogether and instead applied a “circumstance-specific” approach. See 557 U. S., at 36, 38. If anything, then, Nijhawan undermines the major-ity’s position that rigid adherence to elements is always required.C
The Court fears that application of the modified categorical approach to statutes such as §459 would be unfair to defendants, who “often ha[ve] little incentive to contest facts that are not elements of the charged offense” and “may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations.” Ante, at 15. This argument attributes to criminal defendants and their attorneys a degree of timidity that may not be realistic. But in any event, even if a defendant does not think it worthwhile to “squabbl[e]” about insignificant factual allegations, a defendant clearly has an incentive to dispute allegations that may have a bearing on his sentence. And that will often be the case when alternative elements or means suggest different degrees of culpability. Cf. Cal. Penal Code Ann. §460 (providing that burglary of certain inhabited locations enumerated in §459 is punishable in the first degree, and that burglary of all other locations is punishable in the second degree).D
The Court’s approach, I must concede, does have one benefit: It provides an extra measure of assurance that a burglary conviction will not be counted as an ACCA predicate unless the defendant, if he went to trial, was actually found by a jury to have committed the elements of the generic offense. But this extra bit of assurance will generally be quite modest at best.
To see why this is so, compare what would happen under an indivisible burglary statute that simply requires entry invading a possessory right, and a divisible statute that has the following two alternative elements: (1) entry by trespass and (2) entry by invitation but with an undisclosed criminal intent. Under the former statute, the jury would be required to agree only that the defendant invaded a possessory right when entering the place in question, and therefore it would be possible for the jury to convict even if some jurors thought that the defendant entered by trespassing while others thought that he entered by invitation but with an undisclosed criminal intent. Under the latter statute, by contrast, the jury would have to agree either that he trespassed or that he entered by invitation but with an undisclosed criminal intent.
This requirement of unanimity would be of some practical value only if the evidence in a case pointed to both possibilities, and in a great many cases that will not be so. In cases prosecuted under the California burglary statute, I suspect, the evidence generally points either to a trespassory entry, typically involving breaking into a building or other covered place, or to an entry by invitation but with an undisclosed criminal intent (in many cases, shoplifting). Cases in which the evidence suggests that the defendant might have done either are probably not common. And in cases where there is evidence supporting both theories, the presence of a divisible statute containing alternative elements will not solve the problem: A guilty verdict will not reveal the alternative on which the jury agreed unless the jury was asked to return a special verdict, something that is not generally favored in criminal cases. See 6 LaFave §24.10(a), at 543–544.
In cases that end with a guilty plea—and most do—the benefit of divisibility is even less. A judge who accepts a guilty plea is typically required to confirm that there is a factual basis for the plea, see 5 id., §21.4(f), at 835–840 (3d ed. 2007 and Supp. 2011–2012), and the proffer of a factual basis will generally focus exclusively on one of the alternative elements.
The Court nevertheless suggests that the extra modicum of assurance provided in cases involving divisible statutes is needed to prevent violations of the Sixth Amendment jury trial right, ante, at 13–15, but I disagree. So long as a judge applying ACCA is determining, not what the defendant did when the burglary in question was committed, but what the jury in that case necessarily found or what the defendant, in pleading guilty, necessarily admitted, the jury trial right is not infringed. See Almendarez-Torres v. United States, 523 U. S. 224 (1998) . When the modified categorical approach is used to decide whether “a jury was actually required to find all the elements of [a] generic [offense],” the defendant has already enjoyed his Sixth Amendment right to a jury determination of those elements. Taylor, 495 U. S., at 602.III
While producing very modest benefits at most, the Court’s holding will create several serious problems.A
Determining whether a statute is divisible will often be harder than the Court acknowledges. What I have said about the statutes involved in Shepard and Johnson illustrates this point. The Court assumes that those statutes were divisible, but as I have explained, it is possible that they were not. See supra, at 5–7.
To determine whether a statute contains alternative elements, as opposed to merely alternative means of satisfying an element, a court called upon to apply ACCA will be required to look beyond the text of the statute, which may be deceptive. Take, for example, Michigan Compiled Laws Annotated §750.82(1) (West 2004), which criminal-izes assault with “a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon.” The Court seems to assume that a statute like this enumerates alternative elements, ante, at 17–18, but the Michigan courts have held otherwise. Under Michigan law, the elements of §750.82(1) are “(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery.” People v. Avant, 235 Mich. App. 499, 505, 597 N. W. 2d 864, 869 (1999). Although the statute lists numerous types of weapons, the particular type of weapon is not itself an element that the prosecution must prove beyond a reasonable doubt. Instead, the list of weapons in the statute merely enumerates alternative means of committing the crime. 3
Even if a federal court applying ACCA discovers a state-court decision holding that a particular fact must be alleged in a charging document, its research is not at an end. Charging documents must generally include factual allegations that go beyond the bare elements of the crime—specifically, at least enough detail to permit the defendant to mount a defense. See 5 LaFave §19.3(b), at 276. And some jurisdictions require fairly specific factual allegations. See, e.g., N. Y. Crim. Proc. Law Ann. §200.50 (West 2007) (enumerating detailed requirements for indictment); People v. Swanson, 308 Ill. App. 3d 708, 712, 721 N. E. 2d 630, 633 (1999) (vacating conviction for disorderly conduct for submitting a false police report because information “d[id] not describe with particularity the time, date, or location of the alleged domestic battery and the acts comprising the battery . . . [or] the statement that was falsely reported”); Edwards v. State, 379 So. 2d 336, 338 (Ala. Crim. App. 1979) (it is insufficient for an indictment for robbery to allege the amount of money taken; it “must aver the denomination of the money taken or that the particular denomination is unknown to the grand jury”). Thus, the mere fact that state law requires a particular fact to be alleged in a charging document does not mean that this fact must be found by a jury or admitted by the defendant.
The 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. One of the Court’s reasons for adopting the modified categorical approach was to simplify the work of ACCA courts, see Shepard, 544 U. S., at 20; Taylor, 495 U. S., at 601, but the Court’s holding today will not serve that end.B
The Court’s holding will also frustrate fundamental ACCA objectives. We have repeatedly recognized that Congress enacted ACCA to ensure (1) that violent, dangerous recidivists would be subject to enhanced penalties and (2) that those enhanced penalties would be applied uniformly, regardless of state-law variations. See, e.g., id., at 587–589. See also id., at 582 (“ ‘[I]n terms of fundamental fairness, the Act should ensure, to the extent that it is consistent with the prerogatives of the States in defining their own offenses, that the same type of conduct is punishable on the Federal level in all cases’ ” (quoting S. Rep. No. 98–190, p. 20 (1983)); 495 U. S., at 591 (rejecting disparate results across states based on label given by State to a particular crime).
The Court’s holding will hamper the achievement of these objectives by artificially limiting ACCA’s reach and treating similar convictions differently based solely on the vagaries of state law. Defendants convicted of the elements of generic burglary in California will not be subject to ACCA, but defendants who engage in exactly the same behavior in, say, Virginia, will fall within ACCA’s reach. See Va. Code Ann. §18.2–90 (Lexis 2009).
I would avoid these problems by applying the modified categorical approach to §459—and any other similar burglary statute from another State—and would ask whether the relevant portions of the state record clearly show that the jury necessarily found, or the defendant necessarily admitted, the elements of generic burglary. If the state-court record is inconclusive, then the conviction should not count. But where the record is clear, I see no reason for granting a special dispensation.IV
When the modified categorical approach is applied to petitioner’s conviction, it is clear that he “necessarily admitted”—and therefore was convicted for committing—the elements of generic burglary: the unlawful or unprivileged entry of a building with the intent to commit a crime.
Both the complaint and information alleged that petitioner “unlawfully and feloniously enter[ed]” a building (the “CentroMart”) “with the intent to commit theft therein.” App. 14a–17a. When the trial court inquired into the factual basis for petitioner’s plea, the prosecutor stated that petitioner’s crime involved “the breaking and entering of a grocery store.” Id., at 25a. Neither petitioner nor his attorney voiced any objection. 4 Ibid. In order to accept petitioner’s plea, the trial court was required under California law to ensure that the plea had a factual basis, see Cal. Penal Code Ann. §1192.5 (1978); App. 26a, and we must presume that the plea proceedings were conducted in a regular manner, see Parke v. Raley, 506 U. S. 20 –30 (1992). The unmistakable inference arising from the plea transcript is that the trial judge—quite reasonably—understood petitioner and his attorney to assent to the factual basis provided by the prosecutor. Both the District Court and the Court of Appeals concluded that petitioner had admitted and, as a practical matter, was convicted for having committed the elements of generic burglary, and we did not agree to review that fact-bound determination, see 567 U. S. ___ (2012) (granting certiorari “limited to Question 1 presented by the petition”).
Even if that determination is reviewed, however, the lower courts’ conclusion should be sustained. Under the California burglary statute, as interpreted by the State Supreme Court, a defendant must either (a) commit a trespass in entering the location in question or (b) enter in violation of some other possessory right. See People v. Gauze, 15 Cal. 3d 709, 713–714, 542 P. 2d 1365, 1367 (1975). 5
In this case, the judge who accepted petitioner’s guilty plea must have relied on petitioner’s implicit admission that he “broke” into the store, for if petitioner had admitted only that he entered the store, the judge would not have been able to assess whether he had invaded a possessory right. Nor would an admission to merely “entering” the store have permitted the judge to assess whether petitioner entered with the intent to commit a crime; petitioner’s admission to “breaking” was therefore critical to that element, as well. Cf. Black’s Law Dictionary 236 (rev. 4th ed. 1968) (“Breaking” denotes the “tearing away or removal of any part of a house or of the locks, latches, or other fastenings intended to secure it, or otherwise exerting force to gain an entrance, with the intent to commit a felony”).
We have explained that burglary under §924(e) means “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor, 495 U. S., at 598. Based on petitioner’s guilty plea and the Shepard documents, it is clear that petitioner necessarily admitted the elements of generic burglary. He unlawfully entered a building with the intent to commit a crime. Accordingly, I would hold that petitioner’s conviction under §459 qualifies as a conviction for “burglary” under §924(e).
For these reasons, I would affirm the decision of the Court of Appeals, and I therefore respectfully dissent.
1 However, because the Shepard documents did not reveal whether Johnson had been found to have touched or struck, we had to determine whether the relatively innocuous phrase—“[a]ctually and intentionally touch[ing]” another person—constituted physical force for purposes of §924(e)(2)(B)(i). See Johnson, 559 U. S., at 137.
2 The remaining case, Taylor v. United States, 495 U. S. 575 (1990) , may also have involved a statute that was not divisible, but the situation is less clear. There, the defendant had several Missouri burglary convictions, and Missouri had several different burglary provisions in effect at the time in question. See id., at 578, n. 1. The particular provision involved in each of those cases was not certain. Ibid. At least one of those provisions, however, may not have been divisible. That provision, Mo. Rev. Stat. §560.070 (1969) (repealed), applied not only to buildings but also to “any booth or tent,” “any boat or vessel,” or a “railroad car.” It is not entirely clear whether a Missouri court would have required jurors to agree on a particular choice from this list. In State v. Vandergriff, 403 S. W. 2d 579, 581 (Mo. 1966), the Missouri Supreme Court held that an information was deficient because it “omitted a description of the type of building that might be burglarized as defined by §560.070, and thereby omitted an essential element of the offense of burglary in the second degree.” Because an information must generally include factual details that go beyond the elements of an offense, see 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §19.3(b), p. 276 (3d ed. 2007) (hereinafter LaFave), it is possible that the Missouri court did not mean to say that the type of building was an element in the sense in which I understand the Court to use the term here.
3 The board game Clue, to which the Court refers, see ante, at 18,does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim’s head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.
4 The Ninth Circuit has held that a court applying the modified categorical approach may rely on a prosecutor’s statement as to the factual basis for a guilty plea when that statement is offered on the record in the defendant’s presence and the defendant does not object. United States v. Hernandez-Hernandez, 431 F. 3d 1212, 1219 (2005). Petitioner has not challenged the Ninth Circuit’s rule, and that issue is notwithin the scope of the question on which we granted certiorari. Accordingly, I would apply it for purposes of this case.
5 The majority suggests that California law is ambiguous as to this requirement, see ante, at 20, n. 5, but any confusion appears to have arisen after petitioner’s 1978 conviction and is therefore irrelevant for purposes of this case. Cf. McNeill v. United States, 563 U. S. ___, ___ (2011) (slip op., at 3) (“The only way to answer [ACCA’s] backward-looking question [whether a previous conviction was for a seriousdrug offense] is to consult the law that applied at the time of that conviction”).
SUPREME COURT OF THE UNITED STATES
MATTHEW ROBERT DESCAMPS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 20, 2013]
Justice Thomas, concurring in the judgment.
Petitioner Matthew Descamps was convicted of being a felon in possession of a firearm, 18 U. S. C. §922(g), which subjected him to a maximum sentence of 10 years’ imprisonment. The District Court, however, applied an Armed Career Criminal Act (ACCA) enhancement with a mandatory minimum of 15 years based in part on Descamps’ earlier California conviction for burglary. See §924(e). The California law says that any “person who enters” any of a number of structures “with intent to commit grand or petit larceny or any felony is guilty of burglary.” California Penal Code Ann. §459 (West 2010). That law does not, on its face, require the jury to determine whether the entry itself was unlawful, a required element of the so-called “generic” offense of burglary that qualifies as an ACCA predicate. See Taylor v. United States, 495 U. S. 575, 599 (1990) . The majority holds that a court may not review the underlying facts of Descamps’ state crime to determine whether he entered the building unlawfully and, thus, that his burglary conviction may not be used as a predicate offense under ACCA. While I agree with the Court’s conclusion, I disagree with its reasoning.
I have previously explained that ACCA runs afoul of Apprendi v. New Jersey, 530 U. S. 466 (2000) , because it allows the judge to “mak[e] a finding that raises [a defendant’s] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” James v. United States, 550 U. S. 192, 231 (2007) (dissenting opinion) (internal quotation marks omitted). Under the logic of Apprendi, a court may not find facts about a prior conviction when such findings increase the statutory maximum. This is so whether a court is determining whether a prior conviction was entered, see 530 U. S., at 520–521 (Thomas, J., concurring), or attempting to discern what facts were necessary to a prior conviction. See James, supra, at 231–232 (Thomas, J., dissenting). In either case, the court is inappropriately finding a fact that must be submitted to the jury because it “increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, supra, at 490.
In light of the foregoing, it does not matter whether a statute is “divisible” or “indivisible,” see ante, at 1–2, and courts should not have to struggle with the contours of the so-called “modified categorical” approach. Ibid. The only reason Descamps’ ACCA enhancement is before us is “because this Court has not yet reconsidered Almendarez-Torres v. United States, 523 U. S. 224 (1998) , which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant’s prior convictions.” Shepard v. United States, 544 U. S. 13, 27 (2005) (Thomas, J., concurring in part and concurring in judgment). Regardless of the framework adopted, judicial factfinding increases the statutory maximum in violation of the Sixth Amendment. However, because today’s opinion at least limits the situations in which courts make factual determinations about prior convictions, I concur in the judgment.
SUPREME COURT OF THE UNITED STATES
MATTHEW ROBERT DESCAMPS, PETITIONER v. UNITED STATES
on writ of certiorari to the united states court of appeals for the ninth circuit
[June 20, 2013]
Justice Kennedy, concurring.
As the Court explains, this case concerns earlier convictions under state statutes classified by cases in the Courts of Appeals, and now in today’s opinion for the Court, as “indivisible.” See, e.g., United States v. Aguila-Montes de Oca, 655 F. 3d 915 (CA9 2011) (en banc) (per curiam); United States v. Beardsley, 691 F. 3d 252 (CA2 2012). This category is used to describe a class of criminal statutes that are drafted with a single set of elements that are broader than those of the generic definition of the corresponding crime enumerated in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii).
Just one of the substantial concerns that the Court is correct to consider is that, in the regular course of the criminal process, convictions may be entered, often by guilty pleas, when either the attorney or the client, or both, have given no consideration to possible later consequences under ACCA. See ante, at 15–16. As a result, certain facts in the documents approved for judicial examination in Shepard v. United States, 544 U. S. 13 (2005) , may go uncontested because they do not alter the sentencing consequences of the crime, even though their effect is to require a later enhancement under ACCA. This significant risk of failing to consider the full consequences of the plea and conviction is troubling.
Balanced against this, as Justice Alito indicates, is that the dichotomy between divisible and indivisible state criminal statutes is not all that clear. See post, at 12–13 (dissenting opinion). The effect of today’s decision, more-over, is that an unspecified number, but likely a large number, of state criminal statutes that are indivisible but that often do reach serious crimes otherwise subject to ACCA’s provisions, now must be amended by state legislatures. Otherwise, they will not meet federal requirements even though they would have come within ACCA’s terms had the state statute been drafted in a different way. This is an intrusive demand on the States.
On due consideration, the concerns well expressed by the Court persuade me that it reaches the correct result. The disruption to the federal policy underlying ACCA, nevertheless, is troubling and substantial. See post, at 13–14 (Alito, J., dissenting). If Congress wishes to pursue its policy in a proper and efficient way without mandating uniformity among the States with respect to their criminal statutes for scores of serious offenses, and without requiring the amendment of any number of federal criminal statutes as well, Congress should act at once. It may then determine whether ACCA’s design and structure should be modified to meet the concerns expressed both by the Court and the dissenting opinion.
With these observations, I join the opinion of the Court.
ORAL ARGUMENT OF DAN B. JOHNSON ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument first this morning in Case 11-9540, Descamps v. United States.
Dan B. Johnson: May it -- Mr. Chief Justice, may it please the Court:
In this case it doesn't matter what my client was convicted of in 1978 in the State of California.
What's important for the Armed Career Criminal Act is what he's convicted of.
And as we all know, when you're -- to be convicted of a crime, elements have to be proven beyond a reasonable doubt or agreed to by a defendant after waiving his constitutional rights.
In California, burglary -- unlawful entry as defined by the Court in Taylor on what a generic burglary consists of, is not an element of California burglary.
Any entry with the intent to commit a crime, a theft, or a felony will do.
A California jury is never required to actually find unlawful entry in the Taylor sense.
Regardless of the defendant's conduct, a California burglary conviction is not by its elements Taylor burglary for Armed Career Criminal Act.
Justice Ruth Bader Ginsburg: You don't take issue, do you, with the argument that in determining what the State law is you can take account not only of the words of the statute, but how the State Supreme Court interprets those words?
Dan B. Johnson: I don't take issue with that, Your Honor.
I think if the State courts clearly state something is an element of a crime, I -- you know, I agree with that.
Justice Samuel Alito: Well, the California Supreme Court has said that an element of the burglary statute is the violation of some possessory interest.
Now, I know there is some disagreement between you and the government about that.
But assuming for the sake of argument that that is an element, one way for the California court to express that is to say simply, as it has, that an element is the violation of the possessory interest.
Another way of saying exactly the same thing would be to say that the term “ enters ” under the California burglary statute means either breaking into a structure or the violation of the possessory interest in some other way.
Dan B. Johnson: Okay.
Justice Samuel Alito: Those are exactly equivalent.
Now, if they were to say the latter, would a conviction under this statute potentially qualify under the Armed Career Criminal Act?
Dan B. Johnson: Well, I don't believe it would, because I don't believe possessory interest equates to Taylor definition.
Justice Samuel Alito: No, but they -- they set out alternative elements, either breaking into the structure or the violation of the possessory interest in some other way.
Dan B. Johnson: Well, if -- if the elements are shown, and if that's the definition, then yes.
But I don't think California possessory interest is the same thing.
Justice Samuel Alito: But they have said -- do you dispute the fact that saying A, an element is the violation of the possessory interest, and B, the elements are breaking or the violation of the possessory interest in same other way, are exactly the same substantively?
Dan B. Johnson: I don't, Your Honor, because in the Taylor sense you have to have an unlawful trespass, actually a trespass, or an invasion of a person's -- well, unlawful trespass.
In California you don't have to have a trespass.
And as the Court indicated in the Taylor decision, it talked about shoplifting in the State of California.
So is a shoplifter someone who should be subject to an Armed Career Criminal Act enhancement?
Justice Samuel Alito: I thought your argument was that if the terms of the statute set out alternative ways of satisfying an element, you have alternative elements in essence, that then, even if some of those alternatives don't fall within generic burglary, if one does, then a conviction under that statute potentially can qualify.
Dan B. Johnson: Well, I--
Justice Samuel Alito: Isn't that--
Dan B. Johnson: --I have no argument with that.
Justice Samuel Alito: --Okay.
Dan B. Johnson: That's the modified categorical approach, I believe.
Justice Samuel Alito: Okay.
Now, what if the State Supreme Court says exactly the same thing?
Your answer to Justice Ginsburg was it doesn't matter whether the elements are set out in the statute or whether they are defined by the State court.
Dan B. Johnson: Well, I -- as I said, if the element is set forth and it's an element that meets the definition of the generic definition in Taylor, then I agree with you.
But I don't believe California burglary does that, because the entry with intent to commit a crime is burglary in California.
Justice Samuel Alito: Well, I'll ask the question one more time.
Is there a difference -- what the California court has said is that an element is the violation of a possessory interest.
Assuming for the sake of argument that is correct, that is a correct statement of California law, is there any substantive difference between saying that and saying the element is breaking or, in the alternative, the violation of a possessory interest in some other way?
Is there some substantive difference between those two things?
Dan B. Johnson: Well, there may not be a substantive difference, but in California breaking is not required at any time.
It's not an element of the crime.
Justice Elena Kagan: Mr. Johnson, can I try what Justice Alito is getting at maybe in a slightly a different way.
And it's really the argument that the Ninth Circuit made, which is that you can take any indivisible statute, indivisible statute, and you can reimagine it as a statute with divisible elements, and Justice Alito gave one example of that.
And the question to the Ninth Circuit says, is, once we've said that we can look to Shepard documents when we have a divisible statute, why not apply the same reasoning when we have an indivisible statute, given that any indivisible statute can kind of be reframed in our heads as a divisible one?
Dan B. Johnson: Well, because in that case, the jury -- if a statute is made where the question is, is a weapon involved, and you can commit that with an ax, a gun, or a knife, but the element is weapon, the jury is only required to find weapon.
And if gun is -- is the fact that needs to be shown for an active predicate, you don't get there.
Again, you go back to the element, what's the person convicted of.
They would be convicted of a weapon violation, not a gun violation.
And so, I suggest it's the same thing here.
Justice Antonin Scalia: But I thought our cases held that when you have a conviction for a weapons violation, you can look to the Shepard materials to decide whether, in fact, the weapon violation was a gun, a knife or an ax, can't you?
Dan B. Johnson: If the State's statute sets off those as an alternative element, I would agree with that.
If they are not set out in an alternative element, then I don't think they are -- I think they are a manner and means of committing the crime.
I don't think they are an element of the crime.
Justice Antonin Scalia: Or if -- you acknowledge if the State supreme court says “ weapon ” could mean a gun, a knife or a hatchet, that would -- that would suffice, right?
But if the supreme court doesn't say that, we cannot imagine it?
Dan B. Johnson: Well, I -- if it's spelled out as an element, I think you can, but if it's not an element--
Justice Antonin Scalia: It's not spelled out as an element, but the State supreme court says, our statute says weapon.
Of course, a weapon could be a gun, a knife, or a hatchet, and then we look to the Shepard documents and we find that this conviction of a weapons violation was in fact based on the possession of a gun.
Dan B. Johnson: --Again, I think it would go back to the element of -- of weapon--
Justice Stephen G. Breyer: The problem is there's no way.
This is purely conceptual.
A State supreme court that says the word “ weapon ” in the statute means knife, ax, or gun.
Now, are those three ways of committing the crime?
Or are they three crimes, each with a separate element?
That is -- we'd need not only St. Thomas Aquinas, but I mean, we'd need those angels dancing on the head of a pin.
There is no difference that I can imagine.
And therefore you are saying, look to the point of this statute; it is not to look to the individual way in which it was committed, and therefore go to the statute to see whether you have a single crime or separate crimes, okay?
That's that's what I think your argument is.
Do you think I understand your argument.
Dan B. Johnson: --I think you do.
Justice Stephen G. Breyer: Fine.
If I understand your argument -- it's not as friendly a question as you might hope, because what I want to do next is say: Why are we debating this point, because the only difference I can see under the California statute is shoplifting and even that one is sort of debatable.
And the very next clause of this statute says “ or otherwise ”,
"or otherwise involves conduct that presents a serious potential risk of physical injury. "
so why not forget about this metaphysical point and say, look, even if you are totally right, you've still got a statute for 430,000 convictions and as far as we can tell there must have been fewer than 500 that involved shoplifting, so this is so much like burglary that whatever risks were presented by burglary are surely present here.
So let's forget the metaphysics and just go on to clause 2.
Now, why hasn't anybody done that?
It's a mystery to me, because you haven't and they haven't.
So why not?
Dan B. Johnson: Well, it's not my burden to do that.
And I expected that question, but I think even under -- under the residual clause we win the case.
Justice Stephen G. Breyer: Why.
Dan B. Johnson: Because in California a shoplifter is not -- but I would think--
Justice Stephen G. Breyer: No, no, no.
But I mean, what I would do -- I've said this and nobody pays any attention.
I think Justice Scalia's said it; nobody pays any attention.
I think Justice Posner said it.
He said: Look, under clause 2, these are really empirical questions, is this dangerous or not.
Let's do a little sampling and what we'll do is we'll sample the kinds of people that this particular State statute X get convicted under and where a whole lot of them are dangerous it's a dangerous statute; and where not, not.
And so nobody's done that sampling, but we do have some numbers here and the numbers here suggest that this is really a burglary statute.
Dan B. Johnson: --Well, there's -- there's other ways other than just shoplifting.
For example, a mortgage broker going into a home with an invitation.
Justice Stephen G. Breyer: Yes, you could.
I just don't think there are that many people who burgle their own names or who go into the home of somebody else with an invitation and then sneak into the cupboard and stay overnight and burgle everything.
I mean, there are some such, but--
Dan B. Johnson: Doesn't it come back to the test that this Court thought Congress meant when you made the ruling in Taylor that we're not going to look to the manner and means of commission, we're going to look at the elements--
Justice Stephen G. Breyer: --No, no, no.
It doesn't have to do with that.
It has to do with the crime and the crime is the crime that the statute defines.
And the question is, is that crime otherwise -- present a serious potential risk of physical injury?
And if 4,000 manifestations of that crime it does, and 3 manifestations of that crime it doesn't, you would say the overall judgment here is this is a crime that does present that dangerous risk.
That's because in almost all cases it's there.
Dan B. Johnson: --Well, if the Taylor definition -- after the Court worked that through, I think the Taylor went with the categorical elements approach.
I think what you're talking, Your Honor, is -- is a different approach.
Justice Stephen G. Breyer: No, no.
It's exactly pure categorical.
You have a crime in a statute.
You don't know how dangerous it is.
It is not burglary, arson or explosives.
So to find out if it presents the same kind of danger you do a little empirical research.
That's all I'm saying.
It has nothing to do with categorical.
Dan B. Johnson: But then why do we have the “ is burglary ” language and the other sentences?
Don't they get eaten up by that?
Justice Stephen G. Breyer: “ Is burglary or otherwise ”, “ or otherwise ”, “ burglary or otherwise ”, and the reason we have “ or otherwise ” is because Congress does know that the number of State statutes that are sort of like something but not completely like something is in the thousands.
And so that's why they put in “ or otherwise ”.
Dan B. Johnson: I think in this case one of the -- one of the considerations that drives our argument is that if you get into that factfinding mode of manner and means in order to establish an element that is not in the state statute, which is in the case we're looking at here, I think you got an Apprendi problem, and I think under the Sixth Amendment my client should have had a right to a jury trial and proof beyond a reasonable doubt.
He went from a max 10 to a max of life and a mandatory min of 15 years based on what we contend is factfinding in violation of Apprendi.
Justice Anthony Kennedy: Suppose the Court were to say: We now hold that the modified categorical approach applies to this statute and to these facts.
Would the plea colloquy suffice to show that under the modified categorical approach the defendant necessarily was convicted of a crime that's equivalent to the generic crime of burglary?
Dan B. Johnson: Well, I think the breaking under the California statute is a manner and means of committing the crime.
It's not an element of the crime, because you don't have to--
Justice Anthony Kennedy: But if he necessarily--
Dan B. Johnson: --do that.
Justice Anthony Kennedy: --the defendant necessarily was convicted of an offense that had the elements of a generic crime, if he necessarily was convicted of that, would that suffice?
And if it would, does the plea colloquy suffice to show that?
Dan B. Johnson: That's kind of a two-part question.
Justice Anthony Kennedy: It is a two-part question.
I hope I can get an answer to each.
Dan B. Johnson: Well, the first question is, because the breaking is not part of California requirement, a jury's never required to find that as an element.
Nor does a judge when he's taking a plea have to find that having taken place.
Justice Anthony Kennedy: But if under the modified categorical approach we insist that in the particular case before us the generic components of the crime must necessarily have been found by the jury, and if we say that that's the rule, that's inconsistent with your view of what the law ought to be?
Dan B. Johnson: I think -- I think it would be, because I think unless -- unless there are alternatives in the statute, some of which constitute the generic crime and some of which don't, I don't think you can use a modified categorical approach.
Justice Antonin Scalia: I think what you're saying is, it -- it could necessarily have been found by the jury, but he would nevertheless not have been convicted of that particular crime.
Dan B. Johnson: That's obviously a more--
Justice Antonin Scalia: The jury in finding him guilty of the generic offense could only have found that this mode of committing the offense was what he used.
Nonetheless, he has not been convicted of using that mode; he has been convicted of the generic offense.
Isn't that your point.
Dan B. Johnson: --Exactly true.
Just like an example would be in a plea bargain context the prosecutor charges a person with delivery of a controlled substance, maybe there is a problem with the search or something and they come up with a plea bargain of possession of a controlled substance.
Are we going to 30 years later go back and say, well, the colloquy said this person did do a delivery, so we are going to punish him as if he did?
Justice Anthony Kennedy: But under the modified categorical approach the whole point is that we do look to the plea colloquy.
Dan B. Johnson: You look to the plea colloquy--
Justice Anthony Kennedy: Of course, which is why you say you don't think the modified categorical approach should apply.
But I'm saying suppose we say that it does and we look at the plea colloquy.
What do you want us to conclude from that?
Dan B. Johnson: --Even if you say it does, it still doesn't -- it's not an element of the crime.
Justice Sonia Sotomayor: Could you simplify that?
Could you simplify that?
What do you think the elements of -- just going back to what Justice Scalia said, as I understand your position the elements of a burglary in California law is being in a place with the intent to commit a crime.
Whether you got there with permission or without permission, unlawfully or not, is irrelevant.
So what you are saying is what he pled guilty to was being in that garage with the intent to commit a crime, correct?
Dan B. Johnson: Yes.
In California you -- just entry with intent is all you need, with intent to commit.
Justice Sonia Sotomayor: But the unlawfulness is not necessary.
Dan B. Johnson: It's not necessary and that's the point--
Justice Sonia Sotomayor: No matter what he said, he wasn't convicted of a generic crime because all he was convicted of under California law was entering and--
Dan B. Johnson: --Exactly.
Justice Sonia Sotomayor: --with intent.
That's your point.
Dan B. Johnson: And the manner and means of -- of committing it isn't the point.
It's what are you convicted of.
And again, I think unless the Court decides to change that approach, I think we're going to have an Apprendi problem.
Justice Samuel Alito: But your argument comes back to how the elements are defined.
It comes back -- so in your view, what is critical is in a case of a broad statute -- whether the statute simply sets out a broad category or whether it sets out lots of subcategories, that's what your argument comes down to.
If the court says -- if the California legislature or the California court says, the element is entry, period, that's one thing.
If they say the element is breaking or entering in some other way, that's something entirely different.
It all comes down to that, in your view.
Dan B. Johnson: Well, it may -- it may come down to what the Court thinks California means by invasion of a possessory interest.
But again, I just -- I don't see invasion of a possessory interest as the equivalent of Taylor entry.
Justice Stephen G. Breyer: Because it's like the old joke.
I mean, it's in the statute, you are looking back to see whether he was charged with possession of a gun, which is one word in the statute, or an ax, or a knife.
That's what we're looking for under the categorical -- modified categorical.
But if all it says in the statute is weapon, even if the supreme court says it's a gun, a knife, or an ax, you still have nothing to look for.
Because the charge to the jury could have been, did he have a gun, a knife, or an ax, and the answer to that question, when the jury comes back, would be yes.
All they have to say is yes.
They don't have to say which.
And therefore, Apprendi would be violated, in your view.
Dan B. Johnson: That's correct.
I think that sums it up.
Justice Samuel Alito: Well, if that's your argument, then you're really asking for us to modify our prior cases.
Because I thought it was clear, that if the element -- if the statute requires -- that to qualify under ACCA, you have to have a gun.
And the statute says that you have to have a weapon, and a weapon is defined as a gun, a knife, or a hatchet, that would be okay.
Is that wrong?
Isn't that your -- don't you agree with that?
Dan B. Johnson: If the predicate element is included in the -- in the statute or the decision, I agree with that.
But again, I don't think I have to--
Justice Samuel Alito: So your answer to Justice Breyer was not yes; it was no.
Dan B. Johnson: --Maybe I misunderstood the question.
But I think the--
Justice Stephen G. Breyer: You didn't.
Justice Ruth Bader Ginsburg: Let's -- let's get back to this case.
I think what you're saying about the plea colloquy is, even if he had said to the judge, yes, I broke and entered the Metro Mart, even if he had said that, the conviction still would not be for burglary.
Dan B. Johnson: --The conviction is just for entry, and for the entry with intent, which again isn't how this Court defined burglary in Taylor.
Justice Elena Kagan: And so your principal argument isn't that -- is that what we've said in the modified categorical cases is that you look to these Shepard documents to help you define the elements of the offense.
So if you're not sure which offense the person has been convicted of, you look to the Shepard documents to do that.
But you don't look to the Shepard documents for a different purpose, which is, we know what the elements of the offense are, but we want to know whether this person also committed the generic offense.
Dan B. Johnson: --Yes.
I agree with that.
But the Government wants you to use the Shepard documents to go beyond that.
Justice Elena Kagan: Yes, I think -- here's, I guess, the rub, which is -- you know, I take the point that what the Ninth Circuit has said does not seem very categorical.
It doesn't seem categorical, it doesn't seem modified categorical.
But there is something a little bit insane about your position.
I don't see -- you take the most populous State in the country and everybody who's convicted of burglary in the most populous State in the country is not going to have committed an ACCA offense, even though, as Justice Breyer suggested, 98 percent of them really have.
Dan B. Johnson: There's an -- there's an easy way to fix that.
A State legislature can change their law if they want to.
The Congress can change the approach they want to take, and that would solve that problem.
But I don't think it's up to the Court to change 22 years of jurisprudence to do that.
California has known this for over 22 years.
These problems have been -- have been around and percolating, and the right to a jury on issues of fact--
Chief Justice John G. Roberts: But it's not California's problem, right?
We're talking about Federal legislation and how that operates.
Dan B. Johnson: --I agree.
So Congress can amend the statute if they wish, as many members of the Court have talked to the Court and asked the Court to do.
But in light of how I believe this Court interprets the law, and the categorical approach, and the idea was that using the modified categorical approach would only apply in a narrow set of circumstances, the California -- or the Ninth Circuit's version is not a narrow set of circumstances.
Arguably, it's just about any crime that comes in -- later on, sometimes decades later, they're going to be doing fact-finding on issues, some of the participants might have passed away.
I mean, all kinds of things like that.
It's not fair to the -- to a defendant under those circumstances that that kind of fact-finding is going to take place and result in the egregious extra penalties he's looking at unless he has a jury trial.
Those aren't facts of the conviction.
They are facts about the conviction.
I think that's the difference between the Ninth Circuit's approach and what all the other circuits have.
I think the other circuits get it.
They get the idea modified categorical should be narrow.
Justice Ruth Bader Ginsburg: There's probably an obvious answer to this, but the Taylor definition of generic burglary is unlawful entry into or remaining in a building with intent to commit a crime.
Why doesn't this, the crime of which the defendant was convicted, satisfy the remaining, the remaining in the building with intent to commit a crime?
Dan B. Johnson: Well, California burglary is -- I believe, in my reading of the case law, it's -- the intent is formed as you enter the premises.
And that's when the burglary's been committed.
If -- for example, that's the way I read the case law.
Justice Ruth Bader Ginsburg: That -- that intent would continue while the person remains in the building.
Dan B. Johnson: Well, except the -- again, is it the intent in the generic sense, or is it the intent in the California sense?
And I suggest there's a difference, because again, I don't believe -- invading a possessory interest, I think that came up when someone was convicted, or they tried to convict them of burglarizing their own home, and the person had a possessory interest so they said oh, you can't be guilty of that.
I just -- I don't think possessory interest equates to the generic Taylor element.
And I would like to reserve my time, if I might.
Chief Justice John G. Roberts: Thank you, counsel.
ORAL ARGUMENT OF BENJAMIN J. HORWICH ON BEHALF OF THE RESPONDENT
Benjamin J. Horwich: Thank you, Mr. Chief Justice, and may it please the Court:
I would like to start maybe at a point in a colloquy that my friend was having with Justice Breyer, which brought out the point that Petitioner's position here is that there's a difference between alternative elements in State crimes and alternative means; and from the point of view of a guilty plea, which is what we're dealing with here, I don't see how you're going to make that sort of distinction.
It's an unworkable distinction, because, from -- from the point of view of the defendant pleading guilty, whether it's an alternative element or an alternative means, it's just an alternative way of offering the factual basis for the crime.
And the sentencing court ought to look, as the Court, as this Court said in Shepard, to the factual basis that's offered for pleading guilty.
Justice Stephen G. Breyer: But you're not -- but you're not looking at the factual basis for the purpose of deciding the manner in which the defendant committed the crime.
You're looking to the factual basis or you look to these other documents in order to decide which crime it was that the offender committed.
And the reason that you have to sometimes do that is because there are many State statutes which under a single section number list several different crimes, where “ crime ” here does not refer to a thing that happened at a particular day at a particular time, but refers to the kind of thing that a statute defines; i.e., a general category.
Now, every case that we've written it seems to me says that or is consistent with that.
And that is certainly consistent with the idea of the crimes being burglary, arson, explosives, or other dangerous crimes.
So the guilty plea is beside the point.
It may just say: Guilty of 828 376 Section 42-BC, end of the matter.
And we don't know which of those three things: House, car, boat, which are there in that section, was the crime committed.
And he's saying that's the end of that.
And so he says, then, look, this is a California State statute and it isn't divided into three parts.
It just has one part.
And that one part is not the equivalent--
Benjamin J. Horwich: I think that--
Justice Stephen G. Breyer: --of Federal burglary as defined by Justice Blackmun and the Court in this case, end of matter, QED.
Benjamin J. Horwich: --I -- I do think you've accurately described what Petitioner -- the dividing line the Petitioner would advocate is.
But I would urge the Court to look at the experience of the court of appeals with trying to apply that dividing line, and that will reveal to the Court very clearly why it becomes unworkable.
Because we've got several courts of appeals -- as the Court's aware there's a division of authority on this -- that have said, well, look, we want to look for statutes that are phrased in the disjunctive or that have these separately numbered subsection headings or something.
Now, setting aside whether that's really principled or not to focus on the text versus the judicial decision, let's accept for the sake of argument that that's the line.
The problem is that then the next case that those courts confront, that applying that rule rigidly produces really strange results.
Justice Stephen G. Breyer: That's exactly right.
So therefore, that was my question basically.
Benjamin J. Horwich: Yes.
Justice Stephen G. Breyer: And of course Congress knew that there are hundreds or thousands of State statutes with several different words and they -- you know, different ways of getting at the same thing, and therefore they wrote the next phrase of their Federal statute, which is it's burglary, arson, explosives or otherwise, or otherwise involves conduct that presents a serious potential risk of physical injury.
And so if you have a slight variation on the burglary theme, it doesn't fit within generic burglary, but it's pretty hard to imagine it wouldn't otherwise present the same risks, at least if it's only a slight variation.
Benjamin J. Horwich: Well, I -- the parties have not briefed here and I wouldn't want to speculate on what the Court would--
Justice Stephen G. Breyer: I know and that was my question.
Benjamin J. Horwich: --Well, this case has been argued as -- because this is a conviction under California burglary, it's been argued under the -- the premise that it should be classified as generic burglary.
But let me offer--
Justice Antonin Scalia: Maybe -- maybe they haven't argued it because there's some serious constitutional doubt about whether the statute which makes it a crime to engage in conduct which creates a serious risk of physical injury is constitutional.
That's such a vague standard, you go to prison for 30 years if you engage in conduct, quote,
"that creates a serious risk of physical injury. "
I'm not about to buy into that one.
Benjamin J. Horwich: --That -- that's -- I understand Your Honor's view on that, on that subject.
Justice Elena Kagan: Mr. Horwich--
Benjamin J. Horwich: If I can try to--
Justice Elena Kagan: --I'm going to ask you about an argument you did make.
Benjamin J. Horwich: --Yes.
Justice Elena Kagan: As I understand your argument, your argument is not the Ninth Circuit's argument, because you very carefully distinguish what are what you call missing elements cases from this case.
Benjamin J. Horwich: Yes.
Justice Elena Kagan: So do you reject the Ninth Circuit's view that the categorical approach should apply even where there is a missing element, as you -- as you call it?
Benjamin J. Horwich: Well, I want to be very careful that we're talking about the same thing, when we say “ missing element ”.
And so maybe I can give -- give an example of what I think is a missing element case and one to which we do not think the modified categorical approach can be applied.
And a good way to think about the exercise that we think a sentencing court should be engaged in here is to say, imagine there's a set of boxes on one side that correspond to the elements of the generic offense -- excuse me -- of the State offense, and then on the other side a set of boxes that correspond to the elements of the generic offense.
And the exercise is to go through the Shepard materials and figure out what goes into those boxes or what went into those boxes on the State side to establish a basis for the previous conviction.
And then you take whatever was put in those boxes, be it specific or general or whatever it is, and then see if those things give you enough to fill in the elements of the generic offense.
Now, in a case that we would call a missing element case, let's take, for example, because we're talking about burglary, let's talk about criminal trespass.
So criminal trespass let's assume is defined as the unlawful entry of a building or structure, period.
And there's no provision that you have to have intent to commit a crime.
Now, it doesn't matter what's in the Shepard materials for someone who pleads guilty to criminal trespass, because there's no way you're ever going to get something in one of those boxes about unlawful entry or structure that's going to let you fill in the generic box.
Justice Elena Kagan: Let me give you a -- let me give you a different kind of example.
Let's suppose you have a statute that's made it illegal to interfere with a law enforcement investigation.
And you're prosecuting somebody, maybe the person is pleading, maybe he goes to trial; it doesn't matter.
The theory of the case is that the defendant violated this statute, interference with a law enforcement investigation, by assaulting a police officer, okay?
Is that a missing elements case or is that what you think is going on here, which is just -- it's just an overbroad statute?
Benjamin J. Horwich: Well, we would need to know -- I guess I would need to know in your hypothetical what -- what we're trying to classify that conviction as, because--
Justice Elena Kagan: The conviction is interference with a law enforcement investigation.
That's the statute.
But interference with a law enforcement investigation can be done in extremely -- it can be done in an extremely violent way, which would be an ACCA offense or not.
Benjamin J. Horwich: --Well--
Justice Elena Kagan: And it's overbroad.
There are ACCA offenses in it, but there are also non-ACCA offenses in it.
Benjamin J. Horwich: --Well, I'm sorry.
I guess my -- my -- my concern is -- is that I would need to know what generic enumerated crime we're trying to fit that into, because although perhaps that could be classified under the residual clause--
Justice Elena Kagan: Sure.
Benjamin J. Horwich: --Well, that might raise a -- I think that raises a different set of questions.
I want to be clear that our argument here at this point is only that the Court should accept this for purposes of dealing with the enumerated -- with enumerated offenses.
Justice Elena Kagan: Well, why would there be any difference between those two?
Why would you take your argument differently from the residual clause than in the enumerated crimes?
Benjamin J. Horwich: Well, I think because the way this Court's clause jurisprudence has evolved, it requires the Court to make some assessment of the degree of risk of some set of conduct that's not too much more serious than what the defendant engaged in, but not too much less serious and so I don't know what that reference point is.
I mean, there's something of that, I think in -- in -- in Your Honor's disagreement with the majority in the Sykes case, I think of, trying to figure out what the right frame of reference to draw is.
So I think residual clause cases are a very difficult context in which to -- to talk about hypotheticals here, and for that reason, I -- I would -- I would -- I think it's more productive to try to assign them to burglary or one of the other generic offenses.
If I can give an example--
Justice Elena Kagan: Okay.
Well, let me -- let's talk about this case, then.
I mean, I'm not sure I understand that quite.
But let's talk about the burglary.
Suppose that there was a State that just said entry.
In other words, this State says unlawful entry and you say that's overbroad, but we're still in sort of the same universe of an element.
Suppose the State just said entry.
Would we be in a missing element world or in an overbroad world?
Benjamin J. Horwich: --If the State statute provided that all entries qualified, which is what I understand your hypothetical to be, then I think that probably amounts to a missing elements situation, because -- and I'm taking the Court's test from Shepard here.
The question is what did the defendant necessarily admit in the plea colloquy.
And there may be -- I want to be clear -- there may be any number of things that are in the Shepard materials that are noted in the plea colloquy, but if they are not offered as the legal basis for the defendant's conviction, then they don't make it into those boxes that I was talking about and they don't make it into being a basis for the generic offense.
Justice Sonia Sotomayor: But that's my problem, which is you say that, but how to define a missing element from an alternative element is -- overbroad element, doesn't make any sense to me.
As I read the California statute, all it says is you have to enter a number of defined things with the intent to commit a crime.
It doesn't talk about whether the entry itself is unlawful.
That's your colleague's -- your opponent's argument.
But you're trying to read into the method of entering that it could be legal or illegal, and so you look at the documents to add that.
Benjamin J. Horwich: Well, I don't think -- no, I don't think we're trying to add that.
I agree that if -- if -- if, for example, the California Supreme Court's decision in Gauze had come out the other way and said, yep, it's your own home, you know, so what.
As long as you're entering, the statute literally says “ entry ”, there's no -- there's nothing further we need to examine, then I agree this would be -- you could call it a missing element case.
But the problem with Petitioner's position about California law is that that's not California law.
Petitioner says -- I wrote this down, any -- he says:
"Any entry with intent to commit a crime will do. "
That is not true.
You can enter your own house with the intent to commit a crime.
That is not burglary in California.
You can enter somebody else's house with the intent to commit a crime and that's not burglary if they know you intend to do that.
Justice Stephen G. Breyer: True.
But what they said in Gauze is that the entry must invade a possessory right in a building.
And that cuts in your favor, because that's not having different ways of committing a crime, that's what the word in the statute means.
Benjamin J. Horwich: Yes.
Justice Stephen G. Breyer: Yes.
So now you're ahead.
But the difficulty I think is, as I understand it, that invading a possessory interest includes -- includes going into a shop with an intent to steal something, a shoplifter.
Now, you could go back to the Blackmun opinion and you can say: Ah, that falls right within it, because generic burglary is defined in part there to include generic, an unprivileged remaining in the building.
And you say: You see, these are the same.
Were it not for two facts.
The first fact is in Shepard it seems as if the Court says shoplifting is not burglary.
And then you look to the treatise that they cite for that, which is LaFave, and LaFave makes that even more clear.
And says: No, when you talk about remaining, what we're thinking of is hiding in a bank and not going into what used to be Jordan Marsh and staying overnight, or not even staying overnight, but just putting a few toothbrushes in there.
Benjamin J. Horwich: We certainly agree that--
Justice Stephen G. Breyer: So that's where the problem is.
Benjamin J. Horwich: --We absolutely agree that -- that the shoplifting basis for California burglary does not correspond to generic burglary.
But by the same token we also agree that the burglary of an automobile version of California burglary--
Justice Stephen G. Breyer: Ah.
But now, once you conflate those you are back to Justice Sotomayor's problem.
Benjamin J. Horwich: --Well, I don't think we're back to -- I don't think we're back to -- I don't think we're back to any real problem here, because the Court should not be seeking a rule here that turns on some idiosyncrasy of how State law is phrased or announced.
The Court should be looking--
Justice Sonia Sotomayor: So how do you take that position and advocate the answer you're giving here?
Because you are asking us to determine or to have courts below determine what are or are not definitions that the judiciary is applying to means versus mode, et cetera?
Benjamin J. Horwich: --Well, we're not asking the Court to draw any distinctions among those.
I guess what -- what I'm saying is the government's test is -- is that in applying the modified categorical approach to a conviction entered upon a guilty plea, the Court should be looking at what the -- what the legal basis for the prior conviction was, which is, in the words of Shepard, “ the matters ” --
"the factual matters the defendant necessarily admitted. "
That's -- that's what Shepard says.
And Shepard -- Shepard draws an analogy--
Justice Elena Kagan: But this reading creates its own idiosyncrasies.
I mean, suppose the same plea colloquy had taken place and the prosecutor, instead of saying, you know, the defendant broke and entered, he had said: The defendant unlawfully entered, right?
Completely different result under your theory; isn't that right?
Benjamin J. Horwich: --Yes, it is a different result.
But let me explain why that is -- that's not actually germane to the dispute that we're having here, because the prosecutor equally could have said: He broke and entered one of the places enumerated in the statute.
And that too would have been vague and that wouldn't have allowed the sentencing court to classify it as generic burglary.
That -- the possibility that the Shepard records are insufficiently precise or they're too opaque or that they just don't exist because they've been lost is something that can frustrate the application of the modified categorical approach regardless of whether we are talking about cars versus--
Justice Elena Kagan: I think it's -- I think it's a deeper problem than that, because the defendant is standing there and he doesn't care at all whether the prosecutor says unlawfully entered or broke and entered.
It doesn't matter a whit to him.
And so -- and so something is -- is--
Benjamin J. Horwich: --But--
Justice Elena Kagan: --the difference between an enhanced sentence and not an enhanced sentence that is not likely to be thought about, let alone adjudicated.
Benjamin J. Horwich: --Well, by the same token, the defendant would not care a whit whether it really was a grocery store or it was a car, because those two would also cause him to be convicted of the same, of the same burglary offense under California.
But they would lead to different results for classifying the prior conviction.
Chief Justice John G. Roberts: The point would expand -- this would expand the problem that you've identified, that the Shepard approach, the existence of the documents, how carefully they've been developed, it would expand that fortuity to a far greater number of cases.
Benjamin J. Horwich: --I guess I am not prepared to make a confident prediction about the relative number of cases.
It certainly would be more cases, but I think that we would be expanding it that way in an effort to assure greater sentencing equity.
It seems very strange to me that you could have had someone engage in exactly the conduct the Petitioner did, but in another State, come into court, have exactly the same guilty plea colloquy, be convicted of that State's version of burglary, and then it does count, but it doesn't count in California.
For some reason -- for a reason that it has--
Chief Justice John G. Roberts: The -- I'm not sure that it achieves greater sentencing equity when you have two defendants who have done exactly the same thing in California, and because of the fortuity of what the plea colloquy looked like in one case as opposed to another, when it really didn't matter one way or another in that situation, one person qualifies under ACCA and the other doesn't.
Benjamin J. Horwich: --That -- that--
Chief Justice John G. Roberts: And presumably I agree that you don't have -- you don't have empirical evidence.
But given how -- it does seem to me that it's a broad expansion of the category of cases to which you would apply the modified categorical approach under your position.
Benjamin J. Horwich: --Well, in part I'm not -- well, in part I'm not even sure of that.
If I can return to the experience of the courts of appeals in this and give some examples where the courts of appeals that might have preferred to stick to these rules about looking for the word “ or ” in the statute or looking for separately numbered subsections and then they confront cases like the statutory rape example in our brief, where the State statute of conviction provides that the victim of a statutory rape has to be under the age of 18, but maybe the generic offense says that the victim has to be under the age of 16.
Now, that element of age isn't phrased in the disjunctive, but it seems very strange that if the defendant admits to his victim being under -- age 14, that we wouldn't recognize that.
Or you have the situation in the Seventh Circuit, that just about a year after it decides the Woods case in which--
Justice Antonin Scalia: It seems strange to me at all.
He hasn't been convicted of raping or having intercourse with somebody under -- under 14 or under 15.
Benjamin J. Horwich: --Well, the question--
Justice Antonin Scalia: He's only been convicted of having that with someone under 18.
Benjamin J. Horwich: --Well, let's imagine for the moment that his case had been tried to a jury.
Now, the instructions might have said: Do you find that the victim is under the age 18 -- under the age of 18?
But let's for the sake of argument say that the instructions -- the instructions provided: Was the victim age -- do you find that the victim was age 14?
Those would be perfectly valid instructions, and if that was what the jury found then we would say in the Taylor sense that that was what the jury was actually required to find.
Justice Antonin Scalia: Not everything the jury finds constitutes a conviction.
They have to find something that is an element of the charged offense.
Benjamin J. Horwich: Well, the text--
Justice Antonin Scalia: If being -- being under 16 is not -- or 14, whatever it is, is not an element of the charged offense, I don't care what the jury finds.
Benjamin J. Horwich: --Well, with respect, Your Honor, the text of the statute in this part of it does not refer to elements.
There is a part that refers to has as an element the use of force or that sort of thing.
But here the relevant text of the statute asks the Court to determine does the defendant have a previous conviction for a crime that is burglary.
Here the defendant has a previous conviction for breaking and entering a grocery store, that's the basis on which he was convicted, and breaking and entering a grocery store is generic burglary.
Justice Ruth Bader Ginsburg: But breaking and entering -- in your brief as I understand it you are not relying on the prosecutor's charge that there was breaking and entering.
You're relying entirely on the plea colloquy.
And in this plea colloquy, the prosecutor said: He broke and entered a grocery store.
He says nothing.
In the typical Rule 11 setting, when the judge goes through the series of questions, the judge doesn't take the defendant's silence.
The defendant has to positively affirm.
And here we have a plea colloquy where the prosecutor says something and the defendant doesn't respond.
Why is that any kind of a necessary admission when he said nothing, which he might have done under the impression that it didn't matter because he had the intent to commit a crime?
Benjamin J. Horwich: Well, the -- the defendant's statement -- well, in the context of this plea, it is true that the words didn't come out of the defendant's mouth.
Of course, at a proceeding like this one can fairly understand, as the Ninth Circuit has and other circuits do, understand that those factual bases are adopted by the Court precisely because the defendant does not say anything contrary to -- and of course--
Justice Ruth Bader Ginsburg: Why should it be different than in the Rule 11 colloquy?
Why shouldn't there be -- if -- if this is going to determine whether there's a crime qualifying under ACCA, why should it be enough that the prosecutor said something?
Why shouldn't the defendant have to say: Yes, I broke and entered the grocery store?
Benjamin J. Horwich: --Because we can treat -- because we can treat the proceeding in this colloquy as the defendant adopting that factual basis offered by the prosecutor, accepted by the court.
Justice Antonin Scalia: Qui tacet consentire videtur.
Why don't you quote the maxim?
Benjamin J. Horwich: Because your Latin is better than mine.
Justice Antonin Scalia: He who remains silent appears to consent.
Benjamin J. Horwich: --Yes.
This is at the most -- this is -- this of course is at -- at one of the most important moments in the criminal process here.
This is essentially the defendant confessing his guilt and accepting punishment from the court.
So it -- it seems that it's fair to accept that when a basis is offered for his conviction -- and he is silent--
Justice Elena Kagan: I guess it depends on whether the basis has any relevance to the punishment he's going to receive, which in this case it doesn't, but put that aside.
Here's one thing that strikes me as odd about your position.
You said before in response to a question -- you said if the California Supreme Court had not decided Gauze, then you would not be up here arguing what you're arguing.
Benjamin J. Horwich: --Well, at least if it was different, yes.
Justice Elena Kagan: Yes, if there were -- if there were no unlawful entry that counted under California law--
Benjamin J. Horwich: Yes.
Justice Elena Kagan: --but, you know, the fact that there is a strange Gauze case which says that you can't burglarize your own home -- right -- the fact that the Court happens to come across that case and happens to decide -- it seems completely irrelevant as to this matter whether or not the California court once decided that you can't burglarize your own home.
What does that have to do with anything in this case?
Benjamin J. Horwich: Here's -- here's the relevance of it.
It's because at common law, of course, there was a strict breaking requirement, and as this Court recognized in Taylor, and in going back to the LaFave treatise in -- in Taylor, that requirement had over the years and into modern statutes been relaxed to include not only strict breakings, but also entries by fraud, entries by threat and so forth.
Gauze -- and the reasoning in Gauze explains that the California legislature's codification of burglary simply does that relaxation a little bit better, by adding essentially one more category of Gauze -- taken with subsequent decisions about shoplifting and such -- explains California just did that one better by adding another category, which is entries that exceed the implied consent to enter public places for lawful purposes.
So what you're left with here is, this case exists at the common law core that both California and generic burglary retain, which is an entry by break -- an entry by breaking.
And it is true that both generic burglary is dispensed with that requirement, in the sense that it allows other thing to qualify, and so, too, California has dispensed with that requirement, but it hasn't completely eliminated the relevance entirely of the lawfulness of the entry.
There's still a question there.
It's simply easier to satisfy it--
Justice Stephen G. Breyer: Let me quickly ask you this then, you say look at Gauze for this reason, it makes clear that in these words of the California statute, there must be an interference with possessory interest.
Now, I go back and read the Blackmun opinion, and it says the element of generic burglary includes an unprivileged entry or remaining into a building.
You say now, between those two forms of words, there is virtually no difference.
Benjamin J. Horwich: --Yes.
Justice Stephen G. Breyer: The one possible difference is shoplifting.
Benjamin J. Horwich: Exactly.
Justice Stephen G. Breyer: And as to shoplifting, here is what I would like to say.
This is you, okay?
Shoplifting just is not a factor under California code section 459.
Now, you have not added those last words; and therefore, I begin to think maybe it is a factor.
And if it is a factor, then I'm afraid I'm then leaning in favor of saying there is a big difference in the California statute in generic burglary.
But if you could tell me, no, there are other shoplifting statutes, this is never or hardly ever used for shoplifting, then maybe I would feel differently about it, and say, oh, it's close enough.
Benjamin J. Horwich: Well, I can't--
Justice Stephen G. Breyer: You see why I turn back to the empirical question and keep wondering, why is it not possible to get, say, a law professor; they have spare time -- get the sentencing committee, get someone to look and see what are the real behaviors that are convicted under section 459.
Benjamin J. Horwich: --I can--
Justice Antonin Scalia: And then advise defendants who -- who anticipate committing these crimes, so that they will know which crimes carry another 30 years.
Justice Stephen G. Breyer: Well--
Benjamin J. Horwich: --Well -- Justice Breyer, I don't think I can give you a statistical survey.
The only thing I can offer, and I offer it with some hesitation, is my conversations with California prosecutors suggest that they are, at least today, generally disinclined to charge shoplifting as burglary, because it's a lot easier, and effectively gets them the same result in those cases, to charge it as larceny.
Justice Ruth Bader Ginsburg: Is that--
Benjamin J. Horwich: --but that's anecdotal.
Justice Ruth Bader Ginsburg: --to charge it as what?
Benjamin J. Horwich: To charge it as larceny, because very often, it will be the completed shoplifting is very hard to prove they had the intent when they went into the store.
Justice Ruth Bader Ginsburg: But it -- but it does come under this section 459.
Benjamin J. Horwich: It does, but it -- in exactly the same way that automobile burglaries come under this statute.
The statute is broader as to the place burgled, it's broader as to the types of unlawfulness of entry.
That's not a reason not to recognize that when the defendant, as Petitioner did here, says my crime was breaking and entering -- to recognize it as breaking and entering, which is all we think Shepard asks for.
And I want to be clear that you wouldn't go beyond that.
We're not saying that a defendant who's pleading guilty to criminal trespass who says it was breaking and entering and I intended to go steal something in there, you can't then call that burglary, because the additional admission to intent is not germane to the conviction for criminal trespass.
So you can't use that and turn that into generic burglary.
That answers the hypothetical that was raised about someone who enters a plea bargain to possession of controlled substances instead of distribution.
That answers a great many of the parade of horribles that Petitioner is offering.
Justice Sonia Sotomayor: Could you tell me what the difference is between entering the garage with permission and taking a wrench and walking out, and entering a store with permission and taking an article of clothing.
Are they both shoplifting?
Benjamin J. Horwich: --If in your hypothetical the garage is a -- is not your own garage and you don't have the consent of the garage's owner to -- who knows that you're going to take the wrench, no, they are the same.
Those are the same thing.
Justice Sonia Sotomayor: They are the same thing.
So in answer to Justice Breyer's question, you do admit that under the California definition of burglary, shoplifting could be charged.
Benjamin J. Horwich: Shoplifting could be charged, and someone could plead guilty to shoplifting, and that wouldn't count.
The problem here is that--
Justice Sonia Sotomayor: I think your adversary can speak for himself, and his brief did point to some convictions for shoplifting under the statute.
Benjamin J. Horwich: --Yes, we agree.
Justice Sonia Sotomayor: There are some.
Benjamin J. Horwich: Absolutely.
You can be convicted of shoplifting.
We don't disagree with that.
But what we're saying is that the approach that Taylor and Shepard suggests is one that focuses on what the defendant necessarily admitted in offering the legal basis for his conviction rather than on hypotheticals about other conduct he might have committed that would have resulted in the same conviction.
Justice Samuel Alito: What seems to me perhaps clearest about this case and others is that this modified categorical approach has turned out to be extremely complicated, and occasionally produces results that seem to make no sense whatsoever.
Is this inevitable?
Is this really what Congress intended, or did the Court create this problem by the way it has interpreted ACCA?
Benjamin J. Horwich: If I may, briefly.
Chief Justice John G. Roberts: You can.
Benjamin J. Horwich: My sense -- my sense is that this problem is largely the product of lower courts trying to draw very fine formalized angels-on-the-head-of-a-pin distinctions about the statutes, rather than simply focusing on the conduct that was necessarily admitted.
And if they would do that, I actually think this would go significantly more smoothly.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Johnson, you have 4 minutes remaining.
REBUTTAL ARGUMENT OF DAN B. JOHNSON ON BEHALF OF THE PETITIONER
Dan B. Johnson: Thank you, Mr. Chief Justice.
One thing I would like to point.
There is a lot of discussion about shoplifting, as if that's one of the only problem areas we have.
On page 9 of our reply memorandum, footnote 5 contains a number of examples of other -- California burglaries.
And I -- it's page 9 of the reply memorandum, footnote 5.
California burglary, it's -- those examples are just a few examples how a burglary is consensual entry into homes.
That is not an unprivileged entry, and it's not a trespass.
I think -- I think that -- limiting it to just saying that shoplifting is the only problem we have, I don't believe that's the case.
Justice Sonia Sotomayor: Mr. Johnson, the last answer by Mr. Horwich to the last question was, it would be simpler if we hadn't done the modified categorical approach; but the reality is we have a statute.
The active statute that defines violent felony not with respect to a felony that involved dangerous conduct, but as any crime punishable by imprisonment that has an element that threatened use of physical force.
So it's not what the Court created, it's what the statute created.
Dan B. Johnson: I agree with that, and I think that -- I -- I don't think anything has changed in -- since -- in the last 22 years for the Court to step away from Taylor.
In fact, I think the recent developments and constitutional law six memo rights to trials on factfinding.
Justice Samuel Alito: Well, does the offense of burglary have the element of using force or threatening to use of force?
Dan B. Johnson: I don't believe it does.
I think the theory is that--
Justice Samuel Alito: So the element doesn't -- the element language doesn't apply to burglary.
Dan B. Johnson: --I think it does.
Justice Antonin Scalia: Well, you don't have to prove -- I mean, burglary is specifically named.
It's not -- it's not the residual--
Dan B. Johnson: Clause.
Justice Antonin Scalia: --It's not the residual.
The -- the use or threatened use of force is the residual.
If you're convicted of burglary, it doesn't matter whether -- whether you threaten force, right?
Dan B. Johnson: Well, again, I think if we get into the residual, it's going to require the evaluations the Court have done on that.
But modified -- if you -- if you look--
Justice Antonin Scalia: Do you think only -- only those burglaries that -- that threaten force are covered by the statute?
It's all burglaries, as long as you meet the generic definition of burglary, right?
Dan B. Johnson: --I agree with that.
Unless there's other questions, I'd yield the rest of my time.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Elena Kagan: Justice Kagan has our opinion this morning in case 11-9540, Descamps versus United States.
Justice Elena Kagan: This is a case about a federal statute called ACCA, the Armed Career Criminal Act, possibly not what you're here for this morning.
ACCA, we've had many disagreements about ACCA over the years, I think one thing we would all agree on is that ACCA is not a very well written statute.
And because it's not very well written, it's hard to apply and because it's hard to apply, it takes up a lot more of our time than we would like.
So, what is ACCA?
ACCA is a sentence enhancer. Certain people who are convicted of being a felon with a firearm that usually has a 10-year maximum sentence, but that sentence can get enhanced if the person has committed three violent felonies.
And it can get enhanced by quite a bit so that the sentence ends up, in this case, more than double what it otherwise would be.
The question that ACCA often presents is how we figure out whether a prior felony is one of the three prior felonies that you can count under ACCA.
What the statute does is it lists a number of crimes.
It lists burglary and arson and extortion.
Who knows why those three and then it has something called a “residual clause”, sort of a kitchen sink clause, which gives us a lot of difficulties too, but this case is about one of the listed crimes.
It's about burglary and what you might think is, “Well, that's pretty easy.
All you have to do was look to see whether a person has been convicted of burglary and that gets counted as one of the three,” what are called “predicate offenses,” but in fact, it's not that easy for reasons that this case demonstrates.
That is because different states define burglary very differently.
So in some states, it's like the classic breaking and entering, and that we think is exactly the kind of violent felony that Congress meant to count as one of these three predicate offenses.
But in some cases, in some states, burglary covers a much wider range of conduct.
It also covers shoplifting.
And we think actually that that's not the kind of thing that Congress meant to count to so greatly enhance peoples' sentences and that's what's true in this case.
The California burglary statute, which this case is about, defines burglary very widely to include not just breaking and entering but also to include shoplifting.
And the question that we've encountered is what to do with the statute like that.
There are two approaches that you can follow: The first approach is called the “factual approach”.
Let's call it.
And that would involve looking to what the person actually did to try to figure out whether the person, in fact, did something that looks like breaking and entering or did something that looks like shoplifting.
But we've explained in many opinions that there are real problems with that approach.
And the problems are, we don't think Congress meant for us to take that approach.
We've looked at the text of the ACCA statute and it seems as though that's not what Congress had in mind.
We've said that there are real constitutional problems with that approach as well because it would involve judges making determinations about what a defendant actually did, but in our system, properly belong to juries.
So we said that that's another problem with it and we've said also that there are real practical problems with it because it's hard to figure out what somebody actually did sometimes many, many, years ago, many decades ago even, it's inefficient and it may very well be unfair.
So, instead of adopting that approach, we've adopted something called the “categorical approach” and what we do is we figure out something that we called the “generic crime of burglary”.
We say, “What's mostly what burglary is?”
And mostly, what burglary is and what we think Congress had in mind is breaking and entering.
And then we compare the elements of that crime, the generic offence to the elements of the crime that the person was convicted of.
So because -- if the person was convicted of a crime that's much broader than the generic offense, we've said that that conviction cannot count under ACCA because we don't really know.
The person might have been -- in fact actually committed breaking and entering or the person might have committed just shoplifting, and we don't to use the factual approach for all the reasons that I've said.
So, we basically just say that the conviction doesn't count under ACCA.
And that means that there are some criminals who get a break, but we've decided that that's the better approach to take than the alternative.
Now, what I've said basically resolves this case because here, the defendant is named Michael Descamps and he was convicted for burglary under California law and the question is, “Can that conviction count as an ACCA predicate offense?”
And we – and -- the categorical approach would say, “No.
It can't count because in California law, burglary includes all these non-violent things and so, it can't count, case closed.”
Now, what the courts below did was that they said that the case was not closed.
They said that they could look beyond the elements of the crime that Mr. Descamps was convicted of, as long as it only considered certain generally reliable documents: Indictments, jury trial, jury charges, plea agreements, and plea colloquies to see what Mr. Descamps really did, to see whether he in fact broke and entered or just shoplifted.
And looking to those documents is something that we, in fact, have approved in very limited situations and those limited situations are when the statute itself is something called “divisible,” when it lists alternative crimes, you know crime X or crime Y or crime Z, and you're trying to figure out which crime the defendant was convicted of so that you can then compare that crime to the elements of the generic offense.
I mean life is so much fun here under ACCA.
And so, we've allowed courts to do this in that limited context where the statute lists crimes divisibly and we're just trying to figure out which crime the defendant was actually convicted of.
But in this opinion, what we say is that that's the only context in which one can use that approach.
It's called the “modified categorical approach”.
We say that that's the only context when a statute is divisible, but one can use a modified categorical approach.
Otherwise, our standard categorical approach is what should work.
And here because this statute did not list crimes divisibly, instead the statute had only a single set of elements that defined the relevant crime much more broadly than the generic offense, this statute flunks the categorical approach and so the conviction cannot be use as an act of predicate offense.
We, basically, for reasons that are laid out in the opinion, show that the approach of the courts below, looking beyond the elements to try to figure out what the defendant actually did, would really just implode the categorical approach, and for all the reasons that we've given, the categorical approach, although it sometimes leads to very peculiar results, is kind of the best way we can think of to make this statute work.
So, the decision below is reversed.
Justice Kennedy has filed a concurring opinion and Justice Thomas has filed an opinion concurring in the judgment.
Justice Alito has filed a dissenting opinion.