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PAY NO ATTENTION TO THE MAN BEHIND THE CURTAIN
Since United States v. Mathis, the “modified categorical approach” of parsing state criminal statutes has been taking it on the chin. And no wonder – any fair-minded judge (of which there are some) will admit that no one really knew when the modified approach should be used, and when it should not.
The “modified categorical approach,” as you recall, is used in determining whether a state criminal statute defines a crime of burglary, a crime carrying the threat of serious intentional bodily harm, arson or extortion within the meaning of the Armed Career Criminal Act, the Sentencing Guidelines, and several other federal statutes – such as 18 U.S.C. § 16 – that use those terms in describing a crime a violence. Generally, a court is to determine whether the state statute meets (but does not exceed) the common-law definition of those terms by reading the statute, not considering what it is the defendant actually did to violate the statute. That’s the “categorical approach.”
But from time to time, a single statute creates multiple offenses. When that happens, a court may consult a limited universe of documents to determine which offense the defendant was convicted of committing. This is the “modified categorical approach,” but it only applies to “divisible” statutes. In Mathis, the Supreme Court recently clarified (although some would argue that whatever Mathis delivered, it was not clarification) that a statute is considered divisible only if it creates multiple offenses by setting forth alternative elements.
Justin Edwards and Ryan Pouliot pled guilty to firearms offenses carrying an enhanced base offense level under the Guidelines if the defendant has a prior conviction for a “crime of violence.” U.S.S.G. § 2K2.1(a). The version of the Guidelines in effect when they were sentenced defined “crime of violence” to include “any offense under federal or state law… that… is burglary of a dwelling.” § 4B1.2(a)(2). Justin and Ryan had prior Wisconsin burglary convictions for burglary; their district judges counted the convictions as crime-of-violence predicates and applied the higher offense level.
Yesterday, the 7th Circuit reversed the sentences. The Court held that Wisconsin defined burglary more broadly than the Guidelines by prohibiting burglary of a “building or dwelling.” Justin’s and Ryan’s judges – using the modified categorical approach because the statute said “building or dwelling” – looked at the boys’ state charging documents, and found they had been convicted of burglary of a dwelling. Thus, the judges applied a higher Guidelines offense level.
“After Mathis” the Circuit said, “ it’s clear that this recourse to state-court charging documents was improper. The relevant subsection of Wisconsin’s burglary statute sets forth alternative means of satisfying the location element of the state’s burglary offense.” That being the case, the district courts could look no further than the words of the statute. Because the statute criminalized burglary of either a dwelling or a place – such as a shed or outhouse – where no one lived, it was broader than the definition in U.S.S.G. § 4B1.2(a)(2), and could not support the enhanced sentence.
And much like the Wizard of Oz’s admonition to Dorothy to “pay no attention to that man behind the curtain,” the Circuit acknowledged that “if a statute defines an offense more broadly than the Guidelines, the prior conviction doesn’t count, “even if the defendant’s actual conduct (i.e., the facts of the crime) would fit within the Guidelines definition.”
The 7th Circuit conceded that “Mathis dealt with whether a prior conviction qualifies as a violent felony under the ACCA” and not the Guidelines. Nevertheless, the Court said, “the Guidelines do use the same language of “conviction” and create the same potential for unfairness to defendants in sentencing… and Mathis itself indicates that its holding applies in the immigration context, where Sixth Amendment concerns are similarly immaterial… These reasons, along with our precedents treating ACCA and Guidelines cases interchangeably for purposes of the categorical approach, lead us to conclude that Mathis applies with equal force in the context of the career-offender guideline.”
United States v. Edwards, Case No. 15-2373 (7th Cir. Sept. 8, 2016)