Argument recap: Court struggles with classifying prior burglary convictions across states and courtrooms

The exasperation that the Supreme Court’s deep familiarity with the Armed Career Criminal Act (“ACCA”) has bred was on full display in Monday’s argument in Descamps v. United States.

The challenge posed by the ACCA, as noted in my preview, is how to reconcile a congressional mandate to classify diversely labeled and structured prior convictions from all U.S. jurisdictions for federal sentencing enhancement purposes with constitutional, efficiency, and equity concerns that counsel radical limitations on the federal sentencing judge’s factual inquiries into what a prior conviction was all about.  The specific issue here was whether Descamps’s prior conviction (on a guilty plea) for a violation of California Penal Code § 459, which defines burglary as when a “person . . . enters [various structures] . . . with intent to commit grand or petit larceny or any felony” could count for ACCA purposes as a generic burglary, which the Supreme Court in Taylor v. United States defined as “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.”

Representing the petitioner, Dan B. Johnson — a long-time practitioner from Spokane appointed to represent Descamps in the lower courts – hugged the language of the California statute tightly.  Because it simply requires an entry of a structure with the intent to commit a crime – which could cover a shoplifter — and not the “unlawful or unprivileged” entry required by the ACCA burglary definition, a conviction under the statute can’t count under the Court’s “modified categorical approach.”  But he immediately ran into fire from a range of Justices – starting with Alito — who seemed receptive to the government’s argument: Because the California Supreme Court had interpreted the statute to make “the violation of some possessory interest” one basis of conviction, California’s burglary offense is just like other capacious state offenses that have some parts falling within the generic federal definition, and some parts not.

Johnson’s rigidity soon attracted what Justice Breyer called “not as friendly a question as you might hope.”  Given that the only difference he could see between the California statute and the generic federal definition was shoplifting, Breyer asked why the Court should not recognize that of the 430,000 California burglary convictions, “fewer than 500 that involved shoplifting, so this is so much like burglary that whatever risks were presented by burglary are surely present here.”  He suggested, “let’s forget the metaphysics and just go on to” look at the residual clause of the ACCA, which, after listing things like “burglary” and “arson,” adds “or otherwise involves conduct that presents a serious potential risk of physical injury to another.”  Justice Breyer wondered why neither party had argued that. This may have been an inside joke, as the residual clause is the one the Court has long struggled to apply and that Justice Scalia denounced in Sykes v. United States (2011) as void for vagueness.

Justice Kagan soon joined Breyer’s embrace of reality.  While noting that the Ninth Circuit’s approach “doesn’t seem modified categorical,” she told Descamps’s counsel that “there is something a little bit insane” about arguing that “everybody who’s convicted of burglary in the most populous State in the country is not going to have committed an ACCA offense, even though, as Justice Breyer suggested, 98 percent of them really have.”

Arguing for the government, Assistant to the Solicitor General Benjamin J. Horwich quickly made clear that the government wasn’t relying on the ACCA’s residual clause, just its burglary provision.  And he laid out what was meant to sound like an easy check-the-boxes exercise for federal sentencing courts: Start with the elements of the prior state conviction and the elements of the generic federal offense.  Go through the “Shepard materials” (the limited charging and plea allocution materials courts can consult under Shepard v. United States (2005)) and “figure out … what went into those boxes on the State side to establish a basis for the previous conviction. And then you take whatever was put in those boxes . . . and then see if those things give you enough to fill in the elements of the generic offense.”

But the ease and frequency with which Horwich envisioned federal sentencing judges looking beyond explicit state statutory elements left Justices Sotomayor, Kagan, and Breyer concerned that the categorical approach was being “modified” away, with ACCA classification of prior offenses left hostage to the idiosyncrasies of past proceedings.  Horwich responded with a plea for greater sentencing equity: “It seems very strange to me that you could have had someone engage in exactly the conduct the Petitioner did, but in another State, come into court, have exactly the same guilty plea colloquy, be convicted of that State’s version of burglary, and then it does count, but it doesn’t count in California.”

Chief Justice Roberts jumped in with a different equitable frame: “I’m not sure that it achieves greater sentencing equity when you have two defendants who have done exactly the same thing in California, and because of the fortuity of what the plea colloquy looked like in one case as opposed to another, when it really didn’t matter one way or another in that situation, one person qualifies under ACCA and the other doesn’t.”  Other Justices then pushed on the “fortuity” point with examples of jury factual findings that were not required by law (Scalia) and plea allocutions, like Descamps’s, where the prosecutor did most of the talking (Ginsburg). And Justice Kagan highlighted an odd fact about the government’s resort to the California Supreme Court case law to define the contours of the state’s burglary statute: The “unlawful entry” reference on which the government was hanging its hat came in a case simply holding that “you can’t burglarize your own home.”

Soon Justice Breyer had a brilliant idea: “[W]hy is it not possible to get, say, a law professor; they have spare time — get the sentencing committee, get someone to look and see what are the real behaviors that are convicted under section 459 [the California burglary statute]”? Justice Scalia chimed in: “And then advise defendants who . . . anticipate committing these crimes, so that they will know which crimes carry another 30 years.”  At this, we are told, laughter ensued.

Don’t look for a decision in this case to make the ACCA that much clearer for lower courts to apply, or to bring a sustained engagement with empirical realities into the Court’s sentencing jurisprudence.  The constitutional concerns lurking in this case (as discussed my preview) barely raised their heads explicitly during oral argument, but expect them to reinforce the Court’s wariness about too much “modification” of the categorical approach.  Still, we shall have to await the decision in this case to see the degree to which state supreme court cases can be mined to qualify prior convictions for categorical inclusion.