August 31, 2012
SCOTUS grants cert on yet another ACCA dispute over predicate offensesLyle Denniston has this effective report on two new cases in which the Supreme Court has today granted cert, and here is the discussion of the one sentencing case:
The Court’s order granting review of the burglary case involves the use of a state burglary conviction as a basis for enhancing a sentence for a federal crime under the Armed Career Criminal Act. The case involves a Spokane, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally. He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime. That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.” The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Deschamps’s case is broader than “generic burglary,” and thus counts under the ACCA.
The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.” The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.
August 31, 2012 at 12:57 PM | Permalink
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Note that the Court declined to take up the question of overruling Almendarez-Torres even while granting cert. on another question. A lot of us thought that precedent was headed for the scrap heap years ago, but it's still standing.
Posted by: Kent Scheidegger | Aug 31, 2012 5:26:37 PM
Those of us who follow how criminal and immigration law intersect will be paying attention to what the Court does with Descamps since the modified categorical approach plays a big role in removal proceedings too. (Indeed, I wrote about what's at stake in Descamps here: http://crimmigration.com/2012/08/31/scotus-agrees-to-hear-modified-categorical-approach-case-implications-for-removal-proceedings.aspx)
César | crImmigration.com
Posted by: César Cuauhtémoc García Hernández | Aug 31, 2012 5:43:12 PM
Kent, I think AT has dodged the bullet. Thomas, try as hard as he could, was unable to get the votes to grant cert. I don't have a problem with AT, since to include prior convictions in the Apprendi rule would, in my opinion, make them an element of a crime if they elevate the potential punishment above the level allowed by the jury verdict alone. Which then in my opinion would violate the double jeopardy clause since the def has already been punished for the prior offense.
Posted by: bruce cunningham | Aug 31, 2012 6:28:06 PM
I thought the justices were still on vacation. How does cert get granted then? There hasn't been a long conference yet?
Posted by: jb | Aug 31, 2012 7:24:17 PM
This is a big and very important issue. But I don't think the SCOTUSblog explanation is quite accurate (I'm a big fan of SCOTUSblog, and it's rare that such a statement can be made).
Simply put the general issue is whether the modified categorical approach may be used to find non-element facts about a prior offense.
IMHO, here's what SCOTUSblog should have said:
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime. That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.” The Ninth Circuit, however, supplied that element, [because during the plea colloquy, the prosecutor said that the factual basis for the crime was the "breaking and entering of a grocery store" and Descamps made no objection to this statement of factual basis. Because the facts stated in plea colloquy showed that Descamps's conviction rested on facts that satisfy the generic definition of burglary, the Ninth Circuit held that the prior conviction qualifies as an ACCA predicate].
The specific issue is whether the modified categorical approach may be used to supply the non-elemental fact of a "breaking and entering."
Posted by: DEJ | Aug 31, 2012 8:39:55 PM
Creating elements of a crime to justify punishment reminds me of punishment by analogy .
Docile Jim Brady
Posted by: Anon. #3.14159 | Sep 1, 2012 6:23:02 AM
1 September 2012
(Anniversary #73 of Invasion of Poland)
1935 REICHSGESETZBLATT, PAGE 839
“Law to change the Penal Code 28 June 1935
“The Reich government has ratified the following law which is herewith
“Creation of Law by suitable application of the penal law.
Any person who commits an act which the law declares to be punishable or which is deserving of penalty according to the fundamental conceptions of the penal law and sound popular feeling, shall be punished. If there is no penal law directly covering an act it shall be punished under that law which most closely fits, in regards to fundamental conception.”
Posted by: Anon. #3.14159 | Sep 1, 2012 6:47:19 AM