12–6355. | SCOTUS | Jun 27, 2013
Cite as: 570 U. S. ____ (2013) 1
A LITO , J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–6355 _________________
RICARDO MARRERO, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [June 27, 2013] The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit for further consideration in light of Descamps v. United States , 570 U.S. ___ (2013).
J USTICE A LITO , with whom J USTICE K ENNEDY joins, dissenting The Court’s decision to grant, vacate, and remand shows that the Court’s elaboration of its “modified categorical” approach has completely lost touch with reality.
In this case, the Court of Appeals for the Third Circuit held that petitioner qualifies as a career offender for pur- poses of the United States Sentencing Commission, Guide- lines Manual §4B1.1 (Nov. 2012), based in part on a prior conviction under Pennsylvania law for simple assault, Pa. Stat. Ann., Tit. 18, §2701(a) (Purdon 2000), which applies to a defendant who “attempts to cause or intentionally, knowingly or recklessly causes bodily injury to another.” Based on what petitioner said when he pleaded guilty to this offense, the Court of Appeals concluded that peti- tioner had admitted—and had thus been convicted of— intentional or at least knowing conduct and not simply reckless conduct. See 677 F.3d 155" date_filed="2012-04-25" court="3rd Cir." case_name="United States v. Marrero">677 F. 3d 155, 160–162 (2012). I see nothing lacking in the Court of Appeals’ analysis. 2 MARRERO v. UNITED STATES
A LITO , J., dissenting The Pennsylvania statute is “divisible” because it con- tains alternative elements. See Descamps v. United States , ante, at 1–2, 6. Under this Court’s precedents, the mod- ified categorical approach applies to divisible statutes, see ante, at 6, 23, and courts applying that approach may consult the plea colloquy to “determin[e] which statutory phrase . . . covered a prior conviction,” Nijhawan v. Holder , 557 U. S. 29, 41 (2009); see Shepard v. United States ,
544 U.S. 13" date_filed="2005-03-07" court="SCOTUS" case_name="Shepard v. United States">544 U. S. 13, 20 (2005).
When petitioner pleaded guilty, this is what was said: “ ‘[Assistant District Attorney]: On . . . April 27, 2004, . . . [petitioner] grabbed Mrs. Marrero by the neck, at- tempting to drag her upstairs to the second floor. When she tried to make a phone call, he ripped the phone cord out of the wall as she was attempting to call 911.’ ” “ ‘The Court: Do you admit those facts?’ ” “ ‘The Defendant: Yes, Sir.’ ” 677 F.3d 155" date_filed="2012-04-25" court="3rd Cir." case_name="United States v. Marrero">677 F. 3d, at 158 (quoting plea colloquy).
In sending this case back to the Third Circuit for a second look, this Court is apparently troubled by the pos- sibility that petitioner was convicted merely for reck- less conduct, and it is of course true that he did not say expressly that he intentionally or knowingly grabbed Mrs. Marrero by the neck or that he intentionally or knowingly attempted to drag her up a flight of stairs. The Court may be entertaining the possibility that what petitioner meant was that he grabbed what he believed to be some inani- mate object with a neck—perhaps a mannequin named Mrs. Marrero—and attempted to drag that object up the steps. In that event, his conduct might have been merely reckless and not intentional or knowing.
The remand in this case is pointless. I would deny the petition and therefore dissent.