570 U.S. 254 | SCOTUS | 2013
Lead Opinion
*257The Armed Career Criminal Act (ACCA or Act),
We have previously approved a variant of this method-labeled (not very inventively) the "modified categorical approach"-when a prior conviction is for violating a so-called "divisible statute." That kind of statute sets out one or more elements of the offense in the alternative-for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a building) matches an element in the generic offense, but the other (say, an automobile) does not, the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction. The court can then do what the categorical approach demands: compare the elements of the crime of conviction (including the alternative element used in the case) with the elements of the generic crime.
*258This case presents the question whether sentencing courts may also consult those additional documents when a defendant was convicted under an "indivisible" statute-i.e., one not containing alternative elements-that criminalizes a broader swath of conduct than the relevant generic offense. That would enable a court to decide, based on information about a case's underlying facts, that the defendant's prior conviction qualifies as an ACCA predicate even though the elements *2282of the crime fail to satisfy our categorical test. Because that result would contravene our prior decisions and the principles underlying them, we hold that sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.
I
Petitioner Michael Descamps was convicted of being a felon in possession of a firearm, in violation of
ACCA prescribes a mandatory minimum sentence of 15 years for a person who violates § 922(g) and "has three previous convictions ... for a violent felony or a serious drug offense." § 924(e)(1). The Act defines a "violent felony" to mean any felony, whether state or federal, that "has as an element the use, attempted use, or threatened use of physical force against the person of another," or that "is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B).
Descamps argued that his prior burglary conviction could not count as an ACCA predicate offense under our categorical approach. He had pleaded guilty to violating California Penal Code Ann. § 459 (West 2010), which provides that a "person *259who enters" certain locations "with intent to commit grand or petit larceny or any felony is guilty of burglary." That statute does not require the entry to have been unlawful in the way most burglary laws do. Whereas burglary statutes generally demand breaking and entering or similar conduct, California's does not: It covers, for example, a shoplifter who enters a store, like any customer, during normal business hours. See People v. Barry,
The District Court disagreed. According to the court, our modified categorical approach permitted it to examine certain documents, including the record of the plea colloquy, to discover whether Descamps had "admitted the elements of a generic burglary" when entering his plea. App. 50a. And that transcript, the court ruled, showed that Descamps had done so. At the plea hearing, the prosecutor proffered that the crime " ' involve[d] the breaking and entering of a grocery store,' " and Descamps failed to object to that statement.
The Court of Appeals for the Ninth Circuit affirmed, relying on its recently issued decision in United States v. Aguila-Montes de Oca,
We granted certiorari, 567 U.S. ----,
II
Our caselaw explaining the categorical approach and its "modified" counterpart all but resolves this case. In those decisions, as shown below, the modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction. So understood, the modified approach cannot convert Descamps' conviction under § 459 into an ACCA predicate, because that state law defines burglary not alternatively, but only more broadly than the generic offense.
We begin with Taylor v. United States,
At the same time, Taylor recognized a "narrow range of cases" in which sentencing courts-applying what we would later dub the "modified categorical approach"-*2284may look beyond the statutory elements to "the charging paper and jury instructions" used in a case.
In Shepard v. United States,
Two more recent decisions have further emphasized the elements-based rationale-applicable only to divisible statutes-for examining documents like an indictment or plea agreement. In Nijhawan v. Holder,
Applied in that way-which is the only way we have ever allowed-the modified approach merely helps implement the categorical approach when a defendant was convicted of violating a divisible statute. The modified approach thus acts not as an exception, but instead as a tool. It retains the categorical approach's central feature: a focus on the elements, rather than the facts, of a crime. And it preserves the categorical approach's basic method: comparing those elements with the generic offense's. All the modified approach adds is a mechanism for making that comparison *264when a statute lists multiple, alternative elements, and so effectively creates "several different ... crimes." Nijhawan,
The modified approach thus has no role to play in this case. The dispute here does not concern any list of alternative elements. Rather, it involves a simple discrepancy between generic burglary and the crime established in § 459. The former requires an unlawful entry along the lines of breaking and entering. See 3 W. LaFave, Substantive Criminal Law § 21.1(a) (2d ed. 2003) (hereinafter LaFave). The latter does not, and indeed covers simple shoplifting, as even the Government *265acknowledges. See Brief for United States 38; Barry,
III
The Court of Appeals took a different view. Dismissing everything we have said on the subject as "lack[ing] conclusive weight," the Ninth Circuit held in Aguila-Montes that the modified categorical approach could turn a conviction under any statute into an ACCA predicate offense.
A
This Court offered three grounds for establishing our elements-centric, "formal categorical approach." Taylor,
Start with the statutory text and history. As we have long recognized, ACCA increases the sentence of a defendant who has three "previous convictions" for a violent felony-not a defendant who has thrice committed such a crime.
The Ninth Circuit's approach runs headlong into that congressional choice. Instead of reviewing documents like an indictment or plea colloquy only to determine "which statutory phrase was the basis for the conviction," the Ninth Circuit looks to those materials to discover what the defendant actually did. Johnson,
Similarly, consider (though Aguila-Montes did not) the categorical approach's Sixth Amendment underpinnings. We have held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey,
Yet again, the Ninth Circuit's ruling flouts our reasoning-here, by extending judicial factfinding beyond the recognition of a prior conviction. Our modified categorical approach merely assists the sentencing court in identifying the defendant's crime of conviction, as we have held the Sixth Amendment permits. But the Ninth Circuit's reworking authorizes the court to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct. See Aguila-Montes,
Finally, the Ninth Circuit's decision creates the same "daunting" difficulties and inequities that first encouraged us to adopt the categorical approach. Taylor,
Still worse, the Aguila-Montes approach will deprive some defendants of the benefits of their negotiated plea deals. Assume (as happens every day) that a defendant surrenders his right to trial in exchange for the government's agreement that he plead guilty to a less serious crime, whose elements do not match an ACCA offense. Under the Ninth Circuit's view, a later sentencing court could still treat the defendant as though he had pleaded to an ACCA predicate, based on legally extraneous statements found in the old record. Taylor recognized the problem: "[I]f a guilty plea to a lesser, nonburglary offense was the result of a plea bargain," the Court stated, "it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty" to generic burglary.
B
The Ninth Circuit defended its (excessively) modified approach by denying any real distinction between divisible and indivisible statutes extending further than the generic offense. "The only conceptual difference," the court reasoned, "is that [a divisible statute] creates an explicitly finite list of possible means of commission, while [an indivisible one] creates an implied list of every means of commission that otherwise fits the definition of a given crime." Aguila-Montes,
The simple answer is: Because only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime. A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives. See, e.g., The Confiscation Cases,
None of that is true of an overbroad, indivisible statute. A sentencing court, to be sure, can hypothetically reconceive such a statute in divisible terms. So, as Aguila-Montes reveals, *273a court blessed with sufficient time and imagination could devise a laundry list of potential "weapons"-not just the eight the Ninth Circuit mentioned, but also (for starters) grenades, pipe bombs, spears, tire irons, BB guns, nunchucks, and crossbows. But the thing about hypothetical lists is that they are, well, hypothetical. As long as the statute itself requires only an indeterminate "weapon," that is all the indictment must (or is likely to) allege and all the jury instructions must (or are likely to) mention. And most important, that is all the jury must find to convict the defendant. The jurors need not all agree on whether the defendant used a gun or a knife or a tire iron (or any other particular weapon that might appear in an imagined divisible statute), because the actual statute requires the jury to find only a "weapon." And even if in many cases, the jury could have readily reached consensus on the weapon used, a later sentencing court cannot supply that missing judgment. Whatever the underlying facts or the evidence presented, the defendant still would not have been convicted, in the deliberate and considered way the Constitution guarantees, of an offense with the same (or narrower) elements as the supposed generic crime (assault with a gun).
Indeed, accepting the Ninth Circuit's contrary reasoning would altogether collapse the distinction between a categorical and a fact-specific approach. After all, the Ninth Circuit's "weapons" example is just the tip of the iceberg: Courts can go much further in reconceiving indivisible statutes as impliedly divisible ones. In fact, every element of every statute can be imaginatively transformed as the Ninth *2291Circuit suggests-so that every crime is seen as containing an infinite number of sub-crimes corresponding to "all the possible ways an individual can commit" it. Aguila-Montes,
IV
The Government tries to distance itself from the Ninth Circuit by offering a purportedly narrower theory-that although an indivisible statute that is "truly missing" an element of the generic offense cannot give rise to an ACCA conviction, California's burglary law can do so because it merely "contains a broader version of the [generic] element of unlawfulness of entry." Brief for United States 11-12. The Government's argument proceeds in three steps. It begins from the premise that sentencing courts applying ACCA should consider not only the statute defining a prior crime but also any judicial interpretations of it. Next, the Government points to a California decision holding (not surprisingly) that a defendant cannot "burglariz[e] his own home"; the case's reasoning, the Government notes, is that § 459 (though not saying so explicitly) requires "an entry which invades a possessory right." People v. Gauze,
Although elaborately developed in the Government's brief, this argument's first two steps turn out to be sideshows. We may reserve the question whether, in determining a crime's elements, a sentencing court should take account not only of the relevant statute's text, but of judicial rulings interpreting it. And we may assume, as the Government insists, that California caselaw treats § 459 as including an element of entry "invading a possessory right"-although, truth be told, we find the state decisions on that score contradictory and confusing.
But for starters, we see no principled way to make that distinction. Most overbroad statutes can also be characterized as missing an element; and most statutes missing an element can also be labeled overbroad. Here is the only conclusion in Aguila-Montes we agree with: "[I]t is difficult, if not impossible" to determine which is which.
In any event, and more fundamentally, we see no reason why the Government's distinction should matter. Whether the statute of conviction has an overbroad or missing element, the problem is the same: Because of the mismatch in elements, a person convicted under that statute is never convicted of the generic crime. In this case, for example, Descamps was not convicted of generic burglary because § 459, whether viewed as missing an element or containing an overbroad *277one, does not require breaking and entering. So every reason we have given-textual, constitutional, and practical-for rejecting the Ninth Circuit's proposed approach applies to the Government's as well. See supra, at 2287 - 2290. At bottom, the Government wants the same thing as the Ninth Circuit (if nominally in a few fewer cases): It too wishes a sentencing court to look beyond the elements to the evidence or, otherwise said, to explore whether a person convicted of one crime could also have been convicted of another, more serious offense. But that circumstance-specific review is just what the categorical approach precludes. And as we have explained, we adopted the modified approach to help implement *2293the categorical inquiry, not to undermine it.
V
Descamps may (or may not) have broken and entered, and so committed generic burglary. But § 459 -the crime of which he was convicted-does not require the factfinder (whether jury or judge) to make that determination. Because generic unlawful entry is not an element, or an alternative element, of § 459, a conviction under that statute is never for generic burglary. And that decides this case in Descamps' favor; the District Court should not have enhanced his sentence under ACCA.
It is so ordered.
Compare, e.g.,
The dissent delves into the nuances of various States' laws in an effort to cast doubt on this understanding of our prior holdings, arguing that we used the modified categorical approach in cases like Taylor, Shepard , and Johnson "in relation to statutes that may not have been divisible" in the way that we have just described. Post, at 2297 (ALITO, J.). But if, as the dissent claims, the state laws at issue in those cases set out "merely alternative means, not alternative elements" of an offense, post, at 2298, that is news to us. And more important, it would have been news to the Taylor, Shepard , and Johnson Courts: All those decisions rested on the explicit premise that the laws "contain [ed] statutory phrases that cover several different ... crimes," not several different methods of committing one offense. Johnson,
The dissent, as we understand it, takes the same view as the Ninth Circuit; accordingly, each of the reasons-statutory, constitutional, and practical-that leads us to reject Aguila-Montes proves fatal to the dissent's position as well. The dissent several times obscures its call to explore facts with language from our categorical cases, asking whether "the relevant portions of the state record clearly show that the jury necessarily found, or the defendant necessarily admitted, the elements of [the] generic [offense]." Post, at 2302; see Shepard,
See also 1 C. Wright & A. Leipold, Federal Practice and Procedure: Criminal § 125, pp. 550-551 (4th ed. 2008) ("If a single statute sets forth several different offenses, [a] pleading ... that does not indicate which crime [the] defendant allegedly committed is insufficient"); 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 19.3(a), p. 263 (3d ed. 2007) ("[W]here a statute specifies several different ways in which the crime can be committed, [courts often] hold that the pleading must refer to the particular alternative presented in the individual case").
Several decisions treat "invasion of a possessory right" as an aspect of § 459's entry element, see, e.g., People v. Waidla,
The Government here forfeited an alternative argument that § 459 qualifies as a predicate offense under ACCA's "residual clause," which covers statutes "involv[ing] conduct that presents a serious potential risk of physical injury to another."
Concurrence Opinion
As the Court explains, this case concerns earlier convictions under state statutes classified by cases in the Courts of Appeals, and now in today's opinion for the Court, as "indivisible." See, e.g., United States v. Aguila-Montes de Oca,
Just one of the substantial concerns that the Court is correct to consider is that, in the regular course of the criminal process, convictions may be entered, often by guilty pleas, when either the attorney or the client, or both, have given no consideration to possible later consequences under ACCA. See ante, at 2289 - 2290. As a result, certain facts in the documents approved for judicial examination in Shepard v. United States,
*279Balanced against this, as Justice ALITO indicates, is that the dichotomy between divisible and indivisible state criminal statutes is not all that clear. See post, at 2301 - 2302 (dissenting opinion). The effect of today's decision, moreover, is that an unspecified number, but likely a large number, of state criminal statutes that are indivisible but that often do reach serious crimes otherwise subject to ACCA's provisions, *2294now must be amended by state legislatures. Otherwise, they will not meet federal requirements even though they would have come within ACCA's terms had the state statute been drafted in a different way. This is an intrusive demand on the States.
On due consideration, the concerns well expressed by the Court persuade me that it reaches the correct result. The disruption to the federal policy underlying ACCA, nevertheless, is troubling and substantial. See post, at 2301 - 2302 (ALITO, J., dissenting). If Congress wishes to pursue its policy in a proper and efficient way without mandating uniformity among the States with respect to their criminal statutes for scores of serious offenses, and without requiring the amendment of any number of federal criminal statutes as well, Congress should act at once. It may then determine whether ACCA's design and structure should be modified to meet the concerns expressed both by the Court and the dissenting opinion.
With these observations, I join the opinion of the Court.
Justice THOMAS, concurring in the judgment.
Petitioner Matthew Descamps was convicted of being a felon in possession of a firearm,
I have previously explained that ACCA runs afoul of Apprendi v. New Jersey,
In light of the foregoing, it does not matter whether a statute is "divisible" or "indivisible," see ante, at 2278 - 2280, and courts should not have to struggle with the *2295contours of the so-called "modified categorical" approach.
Dissenting Opinion
The Court holds, on highly technical grounds, that no California burglary conviction qualifies as a burglary conviction under the Armed Career Criminal Act (ACCA),
I would give ACCA a more practical reading. When it is clear that a defendant necessarily admitted or the jury necessarily found that the defendant committed the elements of generic burglary, the conviction should qualify. Petitioner's burglary conviction meets that requirement, and I would therefore affirm the decision of the Court of Appeals.
I
Before petitioner was charged in the case now before us, he had already compiled a criminal record that included convictions *282in Washington State for assault and threatening to kill a judge, and convictions in California for robbery and burglary. See App. 11a-12a;
While the concept of a conviction for burglary might seem simple, things have not worked out that way under our case law. In Taylor v. United States,
The first, which does not preclude application of the modified categorical approach, concerns the place burglarized. While generic burglary applies only to offenses involving the entry of a building, the California provision also reaches offenses involving the entry of some other locations, see
The second variation is more consequential. Whereas generic burglary requires an entry that is unlawful or unprivileged, the California statute refers without qualification to "[e]very person who enters." § 459. Petitioner argues, and the Court agrees, that this discrepancy renders the modified categorical approach inapplicable to his California burglary conviction.
II
The Court holds that "sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements." Ante, at 2282. Because the Court's holding is based on the distinction between "divisible" and "indivisible" statutes, it is important to identify precisely what this taxonomy means.
*284My understanding is that a statute is divisible, in the sense used by the Court, only if the offense in question includes as separate elements all of the elements of the generic offense. By an element, I understand the Court to mean something on which a jury must agree by the vote required to convict under the law of the applicable jurisdiction. See ante, at 2288 (citing Richardson v. United States,
The Court's holding that the modified categorical approach may be used only when a statute is divisible in this sense is not required by ACCA or by our prior cases and will cause serious practical problems.
A
Nothing in the text of ACCA mandates the Court's exclusive focus on the elements of an offense. ACCA increases the sentence of a defendant who has "three previous convictions ... for a violent felony,"
Nor is an exclusively elements-based inquiry mandated by ACCA's definition of a "violent felony" as "any crime ... that ... is burglary," § 924(e)(2)(B)(ii). In drafting that provision, Congress did not say "any crime that has the elements of burglary." Indeed, the fact that Congress referred to "elements" elsewhere in the same subparagraph, see § 924(e)(2)(B)(i) (defining "violent felony" to mean any crime that "has as an element the use, attempted use, or threatened use of physical force against the person of another" (emphasis added)), but omitted any reference to elements from § 924(e)(2)(B)(ii) suggests, if anything, that it did not intend to focus exclusively on elements. Cf. Caraco Pharmaceutical Laboratories, Ltd. v. Novo Nordisk A/S, 566 U.S. ----, ----,
B
The Court says that our precedents require an elements-based approach and accuses the Court of Appeals of "flout[ing] our reasoning" in Taylor, Shepard, Nijhawan, and Johnson, see ante, at 2283 - 2285, 2288, but that charge is unfounded. In at least three of those cases, the Court thought that the modified categorical approach could be used in relation to statutes that may not have been divisible.
Shepard concerned prior convictions under two Massachusetts burglary statutes that applied not only to the entry of a "building" (as is the case with generic burglary) but also to the entry of a "ship, vessel, or vehicle." Mass. Gen. Laws Ann., ch. 266, § 16 (West 2000). See also § 18;
In today's decision, the Court assumes that "building" and the other locations enumerated in the Massachusetts *286statutes, such as "vessel," were alternative elements, but that is questionable. It is quite likely that the entry of a building and the entry of a vessel were simply alternative means of satisfying an element. See *2298Commonwealth v. Cabrera,
A case that we decided earlier this Term illustrates why "building" and "vessel" may have been means and not separate elements. In Lozman v. Riviera Beach, 568 U.S. ----,
I have not found a Massachusetts decision squarely on point, but there is surely an argument that the Massachusetts Legislature did not want to demand juror agreement on this question. In other words, there is a strong argument that entry of a "building" and entry of a "vessel" are merely alternative means, not alternative elements. And if that is so, the reasoning in Shepard undermines the Court's argument that the modified categorical approach focuses solely on elements and not on conduct.
Johnson , like Shepard, involved a statute that may have set out alternative means, rather than alternative elements. Under the Florida statute involved in that case, a battery occurs when a person either "1. [a]ctually and intentionally touches or strikes another person against the will of the other; or 2. [i]ntentionally causes bodily harm to another person."
*2299*288Far from mandating the Court's approach, these decisions support a practical understanding of the modified categorical approach. Thus, in Shepard, we observed that the factual circumstances of a defendant's prior conviction may be relevant to determining whether it qualifies as a violent felony under ACCA. See
C
The Court fears that application of the modified categorical approach to statutes such as § 459 would be unfair to defendants, who "often ha[ve] little incentive to contest facts that are not elements of the charged offense" and "may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations."Ante, at 2289. This argument attributes to criminal defendants and their attorneys a degree of timidity that may not be realistic. But in any event, even if a defendant does not think it worthwhile to "squabbl[e]" about insignificant factual allegations, a defendant clearly has an incentive to dispute allegations that may have a bearing on his sentence. And that will *2300often be the case when alternative elements or means suggest different degrees of culpability. Cf. Cal.Penal Code Ann. § 460 (providing that burglary of certain inhabited locations enumerated in § 459 is punishable in the first degree, and that burglary of all other locations is punishable in the second degree).
D
The Court's approach, I must concede, does have one benefit: It provides an extra measure of assurance that a burglary conviction will not be counted as an ACCA predicate unless the defendant, if he went to trial, was actually found by a jury to have committed the elements of the generic offense. But this extra bit of assurance will generally be quite modest at best.
To see why this is so, compare what would happen under an indivisible burglary statute that simply requires entry invading *290a possessory right, and a divisible statute that has the following two alternative elements: (1) entry by trespass and (2) entry by invitation but with an undisclosed criminal intent. Under the former statute, the jury would be required to agree only that the defendant invaded a possessory right when entering the place in question, and therefore it would be possible for the jury to convict even if some jurors thought that the defendant entered by trespassing while others thought that he entered by invitation but with an undisclosed criminal intent. Under the latter statute, by contrast, the jury would have to agree either that he trespassed or that he entered by invitation but with an undisclosed criminal intent.
This requirement of unanimity would be of some practical value only if the evidence in a case pointed to both possibilities, and in a great many cases that will not be so. In cases prosecuted under the California burglary statute, I suspect, the evidence generally points either to a trespassory entry, typically involving breaking into a building or other covered place, or to an entry by invitation but with an undisclosed criminal intent (in many cases, shoplifting). Cases in which the evidence suggests that the defendant might have done either are probably not common. And in cases where there is evidence supporting both theories, the presence of a divisible statute containing alternative elements will not solve the problem: A guilty verdict will not reveal the alternative on which the jury agreed unless the jury was asked to return a special verdict, something that is not generally favored in criminal cases. See 6 LaFave § 24.10(a), at 543-544.
In cases that end with a guilty plea-and most do-the benefit of divisibility is even less. A judge who accepts a guilty plea is typically required to confirm that there is a factual basis for the plea, see 5
*291The Court nevertheless suggests that the extra modicum of assurance provided in cases involving divisible statutes is needed to prevent violations of the Sixth Amendment jury trial right, ante, at 2287 - 2289, but I disagree. So long as a judge applying ACCA is determining, not what the defendant did when the burglary in question was committed, but what the jury in that case necessarily found or what the defendant, in pleading guilty, necessarily admitted, the jury trial right is not infringed. See Almendarez-Torres v. United States,
III
While producing very modest benefits at most, the Court's holding will create several serious problems.
A
Determining whether a statute is divisible will often be harder than the Court acknowledges. What I have said about the statutes involved in Shepard and Johnson illustrates this point. The Court assumes that those statutes were divisible, but as I have explained, it is possible that they were not. See supra, at 2297 - 2298.
To determine whether a statute contains alternative elements, as opposed to merely alternative means of satisfying an element, a court called upon to apply ACCA will be required to look beyond the text of the statute, which may be deceptive. Take, for example, Michigan Compiled Laws Annotated § 750.82(1) (West 2004), which criminalizes assault with "a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon." The Court seems to assume that a statute like this enumerates alternative elements, ante, at 2290 - 2291, but the Michigan courts have held otherwise.
*292Under Michigan law, the elements of § 750.82(1) are "(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery." People v. Avant,
Even if a federal court applying ACCA discovers a state-court decision holding that a particular fact must be alleged in a charging document, its research is not at an end. Charging documents must generally include factual allegations that go beyond the bare elements of the crime-specifically, at least enough detail to permit the defendant to mount a defense. See 5 LaFave § 19.3(b), at 276. And some jurisdictions require fairly specific factual allegations. See, e.g.,
The only way to be sure whether particular items are alternative elements or simply alternative means of satisfying an element *2302may be to find cases concerning the correctness of jury instructions that treat the items one way or the other. And such cases may not arise frequently. One of the Court's reasons for adopting the modified categorical approach was to simplify the work of ACCA courts, see Shepard,
B
The Court's holding will also frustrate fundamental ACCA objectives. We have repeatedly recognized that Congress enacted ACCA to ensure (1) that violent, dangerous recidivists would be subject to enhanced penalties and (2) that those enhanced penalties would be applied uniformly, regardless of state-law variations. See, e.g.,
The Court's holding will hamper the achievement of these objectives by artificially limiting ACCA's reach and treating similar convictions differently based solely on the vagaries of state law. Defendants convicted of the elements of generic burglary in California will not be subject to ACCA, but defendants who engage in exactly the same behavior in, say, Virginia, will fall within ACCA's reach. See Va.Code Ann. § 18.2-90 (Lexis 2009).
*294I would avoid these problems by applying the modified categorical approach to § 459 -and any other similar burglary statute from another State-and would ask whether the relevant portions of the state record clearly show that the jury necessarily found, or the defendant necessarily admitted, the elements of generic burglary. If the state-court record is inconclusive, then the conviction should not count. But where the record is clear, I see no reason for granting a special dispensation.
IV
When the modified categorical approach is applied to petitioner's conviction, it is clear that he "necessarily admitted"-and therefore was convicted for committing-the elements of generic burglary: the unlawful or unprivileged entry of a building with the intent to commit a crime.
Both the complaint and information alleged that petitioner "unlawfully and feloniously enter[ed]" a building (the "CentroMart") "with the intent to commit theft therein." App. 14a-17a. When the trial court inquired into the factual basis for petitioner's plea, the prosecutor stated that petitioner's crime involved "the breaking and entering of a grocery store." Id ., at 25a. Neither petitioner nor his attorney voiced any objection.
Even if that determination is reviewed, however, the lower courts' conclusion should be sustained. Under the California burglary statute, as interpreted by the State Supreme Court, a defendant must either (a) commit a trespass in entering the location in question or (b) enter in violation of some other possessory right. See People v. Gauze,
In this case, the judge who accepted petitioner's guilty plea must have relied on petitioner's implicit admission that he "broke" into the store, for if petitioner had admitted only that he entered the store, the judge would not have been able to assess whether he had invaded a possessory right. Nor would an admission to merely "entering" the store have permitted the judge to assess whether petitioner entered with the intent to commit a crime; petitioner's admission to "breaking" was therefore critical to that element, as well. Cf. Black's Law Dictionary 236 (rev. 4th ed. 1968) ("Breaking" denotes the "tearing away or removal of any part of a house or of the locks, latches, or other fastenings intended to *296secure it, or otherwise exerting force to gain an entrance, with the intent to commit a felony").
We have explained that burglary under § 924(e) means "an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime." Taylor,
For these reasons, I would affirm the decision of the Court of Appeals, and I therefore respectfully dissent.
However, because the Shepard documents did not reveal whether Johnson had been found to have touched or struck, we had to determine whether the relatively innocuous phrase-"[a]ctually and intentionally touch[ing]" another person-constituted physical force for purposes of § 924(e)(2)(B)(i). See Johnson,
The remaining case, Taylor v. United States,
The board game Clue, to which the Court refers, see ante, at 2290 - 2291, does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim's head with a candlestick, wrench, or lead pipe. But in real life, the colonel would almost certainly not escape conviction simply because the jury was unable to agree on the particular type of blunt instrument that he used to commit the murder.
The Ninth Circuit has held that a court applying the modified categorical approach may rely on a prosecutor's statement as to the factual basis for a guilty plea when that statement is offered on the record in the defendant's presence and the defendant does not object. United States v. Hernandez-Hernandez,
The majority suggests that California law is ambiguous as to this requirement, see ante, at 2291 - 2292, n. 5, but any confusion appears to have arisen after petitioner's 1978 conviction and is therefore irrelevant for purposes of this case. Cf. McNeill v. United States, 563 U.S. ----, ----,
