The California Burglary Statute Section 459 does not require as an element that a burglar “enter or remain unlawfully in a building”. The Ninth Circuit held that it could determine whether this “missing element” was shown to have been proven by applying the modified categorical approach.
The issues presented are as follows:
1- Whether the Ninth Circuit’s ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.
Lower court opinion (9th Cir No. 08-30013, 1/10/12, unpublished)
A federal prosecution dealing with the Armed Career Criminal Act, here sentencing enhancement because of prior “violent” felonies. Descamps argues that the enhancement was improper because his prior state (California) conviction for burglary of a grocery store isn’t “violent” within the meaning of the ACCA. The issue appears to turn on whether the definition of “violent” derives from a “categorical” analysis of the statute of conviction, or what the lower court termed a “modified categorical approach,” which authorizes the court to supply an otherwise missing element necessary to establish the “violent” nature of the felony conviction. It is established that the “generic” crime of burglary, i.e., “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime,” satisfies the ACCA, Taylor v. United States, 495 U.S. 575, 599 (1990). But this principle was qualified in Shepard v. United States, 544 U.S. 13, 15-16 (2005), to “make[] burglary a violent felony only if committed in a building or enclosed space * * * , not in a boat or motor vehicle.” So how do you determine the burglar’s objective? The 9th Circuit employs a “modified categorical” approach which allows review of material beyond the statutory elements. Here, that is, the lower court relied on “(t)he combination of facts stated in the information and plea colloquy” to conclude that the burglary satisfied the “generic” definition to the exclusion of potential exceptions, and therefore was “violent.” Lower courts appear to be split – which may explain this cert grant – including the 7th in particular, United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009) (“Importantly, the focus remains on the elements of the offense, not the particular facts surrounding each defendant’s conduct”); United States v. Ellis, 622 F.3d 784, 797-98 (7th Cir. 2010) (under categorical approach, look only to fact of conviction and statutory definition of prior offense rather than particular facts underlying conviction; modified categorical approach allows expanded inquiry, but only where “the statute describes multiple crimes or one crime with multiple modes of commission” and thus is limited “to determin(ing) which part of a divisible statute the defendant was convicted of violating, not to evaluate the actual facts of the underlying case”).
Because this case involves application of federal law, it won’t have controlling impact on state procedure. This isn’t to say, however, that it couldn’t have some salience, see prior ACCA post, Sykes v. U.S., for further discussion. For that matter, this grant may be more noteworthy for the issue the Court declined to hear: “Whether is it time for this Court to overrule Almandez-Torres v. United States, 523 U.S. 224 (1998), apply Apprendi v. New Jersey, 530 U.S. [466] (2000), and require an Indictment and trial on the issue of application of the Armed Career Criminal Act.” (Issue raised by Descamps’ cert petition and rejected by the Court when it expressly limited review to the issue set out above.) At one time it was thought that the Court might be willing to reconsider the prior-conviction exception to Apprendi (“Other 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,” 530 U.S. at 490). That possibility may have receded.
