In Descamps v. United States, a jury convicted Descamps of being a felon in possession of a firearm which calls for a maximum penalty of 10 years in prison. After finding Descamps had three prior “violent felonies,” including a California burglary conviction, the district court sentenced him under the Armed Career Criminal Act (ACCA) to serve 262 months in prison (statutory penalties for ACCA violations are a mandatory minimum of 15 years to a maximum of life in prison).

A burglary is a “violent felony” under ACCA’s generic definition if its “basic elements” include the “unlawful or unprivileged entry into, or remaining in a building or structure, with intent to commit a crime.” Because the California burglary statute lacked an element requiring that entry be unlawful or unprivileged, the district court examined the transcript of Descamps’s 1978 guilty plea to the burglary offense. The charging document alleged Descamps entered a building “with intent to commit a theft,” the transcript revealed the parties agreed there was a factual basis for the plea, and Descamps didn’t challenge the prosecutor’s assertion the crime “involve[d] the breaking and entering of a grocery store.” Based on this record, the district court concluded the 1978 offense was a “burglary” for ACCA purposes. The Ninth Circuit affirmed finding the “modified categorical approach” allowed the district court to rely on materials, namely the transcript, beyond the statutory definition of the California burglary statute, to arrive at its conclusion.

The Supreme Court reversed and noted the “categorical approach” simply looks at the statutory elements of a crime rather than its underlying facts to avoid the difficulties and possible unfairness that can result when a sentencing judge rummages through the record of prior proceedings and “the Sixth Amendment concerns that would arise from sentencing courts’ making findings of fact that properly belong to juries.” In contrast, a “modified” categorical approach allows consultation of a “limited class of documents, such as indictments and jury instructions” when the conviction involved a “divisible statute” containing alternative elements, only some of which fit the generic federal definition. The modified approach was designed only for a “narrow range of cases,” and it merely “provided a mechanism” to compare the elements of a state statute with those of a federal generic offense when the state “statute lists multiple, alternative elements.”

Because the California burglary statute was not “divisible,” the Court’s analysis was straightforward. California’s burglary statute was not a crime of violence under the ACCA because it did not require an unlawful entry and was so broad to cover simple shoplifting. “Whether Descamps did break and enter makes no difference. And likewise, whether he ever ad­mitted to breaking and entering is irrelevant.” “We know Descamps’ crime of conviction, and it does not corre­spond to the relevant generic offense. Under our prior decisions, the inquiry is over.”

This decision recognizes the exceptional nature of the authority judges have been given to do fact finding about prior convictions that dramatically increase a defendant’s sentence. After Descamps, whether or not a prior conviction is going to “count” will have to be determined as mechanically as possible.

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