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March 4, 2021

Lots of SCOTUS talk and debate over the "categorial approach" and ACCA proof burdens in immigration decision

The Supreme Court this morning handed down a 5-3 ruling in Pereida v, Wilkenson, No. 19-438 (S. Ct. Mar. 4, 2021) (available here), in which the majority holds that, under the Immigration and Nationality Act (INA), a person subject to removal seeking discretionary relief must prove a prior conviction is not a "disqualifying criminal offense." Federal sentencing fans may already sense where this is going because so much of federal sentencing law, particularly the Armed Career Criminal Act (ACCA), is concerned a lot about whether a prior conviction qualifies a defendant for certain sentencing enhancements. In his opinion for the majority, Justice Gorsuch talks a good deal about these matters, and here are a few passages that caught my eye:

We have described the modified categorical approach as requiring courts to “review . . . record materials” to determine which of the offenses in a divisible statute the defendant was convicted of committing.  Mathis, 579 U. S., at ___ (slip op., at 16).  We have acknowledged that this process calls on courts to consider “extra-statutory materials” to “discover” the defendant’s crime of conviction.  Descamps v. United States, 570 U.S. 254, 263 (2013).  We have observed that these “materials will not in every case speak plainly,” and that any lingering ambiguity about them can mean the government will fail to carry its burden of proof in a criminal case.  Mathis, 579 U.S., at ___ (slip op., at 18) (citing Shepard v. United States, 544 U.S. 13, 21 (2005)).  And we have remarked that “the fact of a prior conviction” supplies an unusual and “arguable” exception to the Sixth Amendment rule in criminal cases that “any fact that increases the penalty for a crime” must be proved to a jury rather than a judge. Apprendi v. New Jersey, 530 U.S. 466, 489, 490 (2000).

Really, this Court has never doubted that the who, what, when, and where of a conviction — and the very existence of a conviction in the first place — pose questions of fact.  Nor have we questioned that, like any other fact, the party who bears the burden of proving these facts bears the risks associated with failing to do so....

In the criminal context, this Court has said that judges seeking to ascertain the defendant’s crime of conviction should refer only to a “limited” set of judicial records.  Shepard, 544 U.S., at 20–23. In part, the Court has circumscribed the proof a judge may consult out of concern for the defendant’s Sixth Amendment right to a trial by jury. If a judge, rather than a jury, may take evidence and make findings of fact, the thinking goes, the proceeding should be as confined as possible. Id., at 25–26; see also Apprendi, 530 U. S., at 487–490 (citing Almendarez-Torres v. United States, 523 U.S. 224 (1998)). But Sixth Amendment concerns are not present in the immigration context

Justice Breyer's dissent in this case also speaks on the "categorial approach" and ACCA jurisprudence at some length.   I will leave it to others to let me know if there are particularly important passages in the dissent (or in the majority) that sentencing fans ought to consider at greater length.

March 4, 2021 at 12:25 PM | Permalink


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