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Defendant Avoids Sentencing Enhancement for Burglary Conviction

Michael Descamps was convicted of being a felon in possession of a firearm. He faced 10 years in prison for that conviction. The government sought to increase his sentence to a mandatory minimum of 15 years under the Armed Career Criminal Act (ACCA) based on Descamps's prior state convictions for burglary, robbery, and felony harassment, contending that he had been convicted of a "violent felony." Even though Descamps's state court conviction for burglary qualified him for a sentence enhancement under the ACCA, the U.S. District Court and the Ninth Circuit (which affirmed the District Court) engaged in a modified categorical analysis, evaluating Descamps's conduct as set forth in his record of conviction and comparing it with the "generic offense" of burglary -- that is, burglary as it is commonly understood -- to determine that in committing burglary, Descamps had broken into and entered a grocery store, and thus satisfied the elements of the generic offense to invoke the ACCA. Unlike the generic offense of burglary, one can be convicted of burglary under California Penal Code section 459 for entering into certain locations with the intent to commit a felony even if the entry itself was not unlawful (for example, shoplifting).

In Descamps v. United States, the Supreme Court reversed the Ninth Circuit, reasoning that it was inappropriate for the Court to consider Descamps's record of conviction to determine whether what Descamps actually did satisfied the generic burglary offense's breaking and entering requirement. Since the California burglary statute is an "indivisible statute", i.e., it did not state alternative statutory elements, and is in fact broader than the generic offense of burglary, the Supreme Court concluded that the burglary conviction could not qualify for sentencing enhancement under the ACCA, and that the District Court misapplied the modified categorical approach to find otherwise. The Supreme Court clarified that resort to "extra-statutory" documents (i.e., indictments, plea agreements, plea colloquies, and jury instructions) is only appropriate to determine which alternative elements of the offense in a divisible statute the defendant was convicted of that correspond to the generic offense. The justices explained that when an indivisible statute like Penal Code section 459 is the predicate for an ACCA sentencing enhancement, courts cannot look at the record of conviction to determine which admitted facts would satisfy the elements of the generic burglary offense, but which were not elements of the crime to which the defendant actually pleaded guilty, without running afoul of the Sixth Amendment.

One could argue that the majority exalted form over substance: Descamps did break and enter and then commit a felony corresponding to the generic offense of burglary. The punishment should fit the crime regardless of the legal test used. On the other hand, if Congress had intended to give sentencing courts the authority to look behind the conviction to impose an ACCA sentencing enhancement, then it would have explicitly done so. It did not.

The Supreme Court's holding affirmed its prior precedent in Taylor v. United States, 495 U.S. 575, and bolsters constitutional protections for criminal defendants, including immigrants being charged with crimes that carry serious immigration consequences, such as removal from the United States. Individuals who are in criminal proceedings should consult with an immigration attorney to review their case to determine what effect their plea could have on their immigration status.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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