Lead Opinion
PER CURIAM Opinion; Opinion by Judge BYBEE; Concurrence by Judge BERZON; Partial Concurrence and Partial Dissent by Judge RAWLINSON.
OPINION
A majority of the en banc court (Judge Bybee, joined by Judges Rymer, Silver-man, Gould, Rawlinson and Callahan) overrules our prior holding in Navarro-Lopez v. Gonzales,
A different majority (Judge Bybee, joined by Chief Judge Kozinski and Judges Rymer, W. Fletcher, Berzon, M. Smith and N.R. Smith) overrules our prior decisions to the extent they hold that a conviction under California Penal Code § 459 qualifies as a generic burglary conviction if the defendant pleaded guilty to entering a building “unlawfully” or a jury found the defendant guilty as charged in an indictment reciting that allegation. This majority concludes that Aguila-Montes’s prior conviction under California Penal Code § 459 cannot be used to enhance his sentence.
The district court’s sentence is VACATED, and the case is REMANDED to the original three-judge panel for consideration of the remaining issues raised on appeal.
We granted rehearing in this case to reconsider the rule we adopted in Navarro-Lopez v. Gonzales,
The categorical and modified categorical frameworks, first outlined by the Supreme Court in Taylor v. United States,
In Navarro-Lopez, we stated that “[t]he modified categorical approach ... applies when the particular elements in the crime of conviction are broader than the generic crime.”
When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of’ the generic crime. See Li v. Ashcroft,389 F.3d 892 , 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).
Id.
Today, we conclude that Navarro-Lopez’s “missing element” rule is not required by the Supreme Court’s modified categorical approach established in Taylor. We overrule that portion of Navarro-Lopez. Applying the modified categorical approach to this case, we nevertheless agree with the panel’s determination that Defendant-Appellant Guillermo Aguila-Montes de Oca’s (“Aguila”) conviction under California Penal Code § 459 does not qualify as a “crime of violence” under either the categorical or modified categorical approach. Accordingly, we vacate the district court’s sentence and remand to the original three-judge panel for consider
I
Aguila is a native and citizen of Mexico. On July 5, 2004, Aguila attempted to enter the United States at the San Ysidro, California, point of entry. Customs officers determined by computer that Aguila had been previously deported from the United States, and arrested him. The government charged Aguila in the Southern District of California with illegal reentry after deportation, in violation of 8 U.S.C. § 1326. A jury convicted him, and the district court sentenced Aguila to 120 months in prison and two years of supervised release.
During sentencing, the district court determined that, in 1988, Aguila had pled guilty to first degree residential burglary, in violation of California Penal Code § 459. That statute punishes “[e]very person who enters [various structures] ... with intent to commit grand or petit larceny or any felony.” CAL. PENAL CODE § 459. Based on this prior offense, the district court enhanced Aguila’s sentence under U.S.S.G. § 2L1.2, which provides a sixteen-level enhancement for defendants previously deported after “a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A). The Guidelines’ Application Notes specifically define “crime of violence” to include “burglary of a dwelling.” Id. § 2L1.2 cmt. n. l(B)(iii). The district court held that Aguila’s California burglary conviction qualified as “burglary of a dwelling” and accordingly enhanced his sentence by sixteen levels.
Aguila appealed his sentence,
One year later, we withdrew our Aguila I opinion in Aguila II, and relied entirely on Navarro-Lopez to reverse and remand to the district court to impose a sentence without the sixteen-level enhancement. Aguila II,
On a vote of the majority of nonrecused active judges on our court, we decided to rehear this case en banc.
II
We first review the complex legal framework governing this case, beginning with the relevant Guidelines, the Supreme Court decisions preceding Navarro-Lopez, and ending with our controversial Navarro-Lopez decision.
A
Section 2L1.2 of the Guidelines addresses sentencing for the crime of unlawfully entering or remaining in the United States. It provides a sixteen-level enhancement “[i]f the defendant previously was deported, or unlawfully remained in the United States, after ... a conviction for a felony that is ... a crime of violence....” U.S.S.G. § 2L1.2(b)(l). The Guidelines’ Application Notes define “crime of violence” to include “burglary of a dwelling.” Id. § 2L1.2 cmt. n. l(B)(iii). “The sentencing judge’s application of the Sentencing Guidelines, including whether a prior conviction is a ‘crime of violence’ ... for the purposes of U.S.S.G. § 2L1.2, is reviewed de novo.” United States v. Rodriguez-Rodriguez,
B
To determine whether a prior conviction qualifies as a “crime of violence” under the Guidelines, we use the two-part analytical approach outlined by the Supreme Court in Taylor. See United States v. Wenner,
The Court determined that “ ‘burglary’ in § 924(e) must have some uniform definition independent of the labels employed by various States’ criminal codes,” in order to “proteet[ ] offenders from the unfairness of having enhancement depend upon the label employed by the State of conviction.” Taylor,
This determination left the Court with “the problem of applying this conclusion to cases in which the state statute under which a defendant is convicted varies from the generic definition of ‘burglary’” — for example, when a state burglary statute “eliminat[es] the requirement that the entry be unlawful or ... includ[es] places, such as automobiles and vending machines, other than buildings.” Id. The Court “had to consider how a later court sentencing under the ACCA might tell whether a prior burglary conviction was for the generic offense.” Shepard,
The Taylor Court’s solution to this problem was what it referred to as the “categorical approach,” in which a court looks “not to the particular facts underlying [the defendant’s prior] convictionf ],” but “only to the fact of conviction and the statutory definition of the prior offense,” in order to determine whether the state statute could potentially criminalize conduct that would not qualify as a “violent felony.” Taylor,
The Court then held that “[t]his categorical approach, however, may permit the sentencing court to go beyond the mere fact of conviction in a narrow range of cases where a jury was actually required to find all the elements of generic burglary.” Taylor,
Taylor itself dealt with a conviction in a jury trial, but in Shepard, the Court held that Taylors framework applies to guilty pleas as well. See Shepard,
The Court more recently developed the Taylor/Shepard framework in Nijhawan v. Holder, — U.S.-,
In Johnson, the Court confronted the question of whether a Florida battery conviction constituted a violent felony under 18 U.S.C. § 922(g)(l)(i), which encompasses “any crime punishable by imprisonment for a term exceeding one year ... [that] has as an element the use, attempted use, or threatened use of physical force against the person of another.”
We have extended the Taylor/Shepard framework well beyond the question of whether a state burglary conviction qualifies as generic burglary under the ACCA. In the criminal context, we have, among other things, used the framework to determine whether other crimes qualify as a “violent felony” under the ACCA, see, e.g., United States v. Terrell,
C
Before Navarro-Lopez, our cases drew no distinction between different kinds of statutes in terms of when the modified categorical approach could be applied. We simply applied the categorical approach and, even if we determined that the offense of conviction was missing an element of the generic crime, we then applied the modified categorical approach without any inquiry as to whether the approach should be applied.
Navarro-Lopez overruled all of these decisions sub silentio and in a two-paragraph analysis. In Navarro-Lopez, we addressed the question of whether a conviction under California Penal Code § 32 for accessory after the fact was a crime involving moral turpitude. See
Then, after noting that the next step in our analysis would normally be to apply the modified categorical approach, we announced:
The modified categorical approach, however, only applies when the particular elements in the crime of conviction are broader than the generic crime. When the crime of conviction is missing an element of the generic crime altogether, we can never find that “a jury was actually required to find all the elements of’ the generic crime. See Li v. Ashcroft,389 F.3d 892 , 899-901 (9th Cir.2004) (Kozinski, J., concurring) (providing examples).
Accessory after the fact under California Penal Code section 32 lacks an element of the generic crime — i.e., the moral turpitude, the requisite depravity. The crime of conviction can never be narrowed to conform to the generic crime because the jury is not required — as Taylor mandates — to find all the elements of the generic crime. Even if Navarro-Lopez had admitted to depraved acts, those admissions could not be used to modify the crime because they were not necessary for a conviction. See Shepard!,544 U.S. at 24 ,125 S.Ct. 1254 ].... The modified categorical approach thus cannot be used to conform Navarro-Lopez’s accessory after the fact conviction to the generic definition of crimes involving moral turpitude.
Navarro-Lopez,
Ill
We find good reason to question our holding in Navarro-Lopez with respect to the modified categorical approach. As will become evident in our analysis below, the issue of when to apply the modified categorical approach is a difficult one. Yet Navarro-Lopez disposed of this issue in two paragraphs with a single citation to a concurring opinion. With this sparse analysis, Navarro-Lopez overruled almost two decades of our jurisprudence.
Moreover, because of the manner in which Navarro-Lopez summarily announced its novel legal principle, we have witnessed a number of false starts and conflicting decisions within our Circuit.
We believe that it is time to reconsider the rule announced in Navarro-Lopez with the diligence appropriate for an issue of this complexity and magnitude.
IV
The purpose of the modified categorical approach is to determine whether the trier of fact “ ‘was actually required to find all the elements of the generic offense” before enhancing the defendant’s sentence based on a state conviction. Shepard,
Navarro-Lopez effectively segregated state criminal statutes into two classes. First, it acknowledged that application of the modified categorical approach was permissible when a prior conviction resulted from what we will call “divisible statutes.” A divisible statute contains a list of statutory phrases, at least one of which satisfies an element of a given generic crime.
Navarro-Lopez created a second class of state criminal statutes: those that are “missing an element of the generic crime altogether.” A statute can be “missing an element of the generic crime” in two ways. In some cases, the state offense contains an element that encompasses the generic element but covers a broader range of conduct than the generic element. For example, the Guidelines’ “crime of violence” definition, in addition to “burglary of a dwelling,” also includes “statutory rape.” U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). In United States v. Rodriguez-Guzman,
In other cases, the criminal statute altogether lacks an element of the generic crime. For example, in Estradar-Espinoza v. Mukasey,
It is worth noting that the distinction between the “broad element” and “missing element” cases is only of limited conceptual use and has no legal significance. In both situations, “the crime of conviction is missing an element of the generic crime,” precluding resort to the modified categorical approach under the Navarro-Lopez rule.
To provide a consistent and convenient example to illustrate each of these scenarios, we may hypothesize the following.
We conclude that the modified categorical approach encompasses, with certain important restrictions, each of these situations.
A
We first examine why the modified categorical approach is appropriate for divisible statutes. There is no serious dispute that it at least applies to them. If this were not so, the modified categorical approach would have no function whatsoever. When the statute of conviction contains a list of statutory phrases, at least one of which satisfies the generic statute, the modified categorical approach can be used to determine under which statutory phrase the defendant was convicted. If the appropriate documents demonstrate that the defendant was convicted under
In Taylor, the Supreme Court illustrated the modified categorical approach by citing a divisible statute:
[1]n a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.
B
We now turn to statutes that are “missing an element of the generic crime.” As a conceptual matter, these statutes simply substitute a shorthand phrase for a list of acts or objects covered by that phrase. For example, a statute that requires use of a “weapon” is not meaningfully different from a statute that simply lists every kind of weapon in existence. Using the word “weapon” as an element is not analytically different from creating a list of all conceivable weapons (“gun, axe, sword, baton, slingshot, knife, machete, bat,” and so on). Because we have little difficulty discerning that someone convicted of assault with a “weapon” may have used a gun, the modified categorical approach could apply in the same way it does to a conviction under a divisible statute to determine if the trier of fact was actually required to find that the defendant used a gun. See Li
Similar logic applies where a statute does not even require a weapon, and only requires harmful contact. If a statute of conviction only requires the element of “harmful contact,” that element in turn is indistinct from a list of all the possible ways an individual can commit harmful contact (“harmful contact with a vehicle, harmful contact with a gun, harmful contact with an axe, harmful contact with a utensil” and so on). The only conceptual difference between a divisible statute and a non-divisible statute is that the former creates an explicitly finite list of possible means of commission, while the latter creates an implied list of every means of commission that otherwise fits the definition of a given crime.
1
The central basis for the argument that the modified categorical approach should be limited to divisible statutes is that, in order to determine whether a defendant’s prior offense qualifies the defendant for a sentencing enhancement or whether an alien’s prior offense renders him removable, it does not matter what acts the defendant committed; rather, the relevant question is what he was convicted of. See Taylor,
The requirement that we focus on what the defendant was convicted of rather than the acts he committed serves two important purposes. First, it confines our inquiry to the fact of conviction and avoids the need to rummage through the “actual proof at trial” to see “whether the defendant’s conduct constituted generic burglary.” Taylor,
Aguila, the amici curiae, and other proponents of Navarro-Lopez’s “missing element” rule argue that, if the statute of conviction lacks an element of the generic crime, the defendant was not convicted of the generic crime, regardless of how certain we are that the defendant actually committed the acts composing the generic crime. The reason, they argue, is that a defendant can only be “convicted” if the factfinder determines that each of the elements of the crime was satisfied. If any element of the generic crime is missing from the statute of conviction, we cannot conclude that the defendant was effectively convicted of the generic crime, and everything else is irrelevant. Put another way, to convict, the factfinder is only “actually required” to find the elements of the statute of conviction; if something is not an element, then by definition the jury is not required to find it in order to convict. And put yet another way, a conviction only “necessarily rests” on the elements of the statute of conviction.
Returning to our hypothetical, Aguila would argue that, if the generic aggravated assault statute requires the use of a gun (the “missing element” situation) and a state statute does not, then a defendant convicted under the state statute was not convicted of generic aggravated assault even if he actually used a gun, because again, one can only be “convicted” of having committed the elements of the crime. In this situation, the jury would not be required to find that the defendant used any type of weapon in order to convict him, regardless of whether the jury actually thought that he did in fact use a gun. And in this situation, the fact that the defendant used a gun would, in some sense, not be necessary to the defendant’s conviction.
2
This argument has some force and support. Indeed, the Supreme Court’s own post-Navarro-Lopez decisions in Nijhawan and Johnson provide some support for Navarro-Lopez’s rule. Both cases clearly express approval for applying the modified categorical approach to convictions under divisible statutes. But neither case addressed the issue before us, so we are reluctant to read into approval of the use of the modified categorical approach in the divisible statute context as disapproval of its use with broad or missing element statutes.
The petitioner in Nijhawan argued that, even where a requirement under a generic crime is an attendant circumstance of the crime rather than an element of the crime, the court “should nonetheless borrow from Taylor what that case called a ‘modified categorical approach’ ” and “examine only charging documents, jury instructions, and any special jury finding.” Nijhawan,
Judge Berzon is mistaken when she argues that “Nijhawan is crystal clear: The modified categorical approach is used to determine under which provision of a divisible statute a defendant was convicted.” Berzon Op. at 950. In fact, the Court declined to apply either the categorical or the modified categorical approach to the statute at issue in that case. It had no need to explicate how either method should be applied, and it is far from “crystal clear” that Nijhawan limited the modified categorical approach to divisible statutes. If anything, by ratifying the creation of a new “circumstance-specific” category of statutes, the Court expanded lower courts’ authority to look beyond statutory definitions in determining whether a particular recidivist statute applied to certain prior convictions.
Johnson contains similar language. In that case, the Court held that Florida’s divisible battery statute, which contained a subpart that permitted conviction by “[a]ctually and intentionally touching] ... another person,” FLA. STAT. § 784.03(l)(a)(l), did not “ha[ve] as an element the use ... of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)®, and was thus not categorically a “violent felony” under the ACCA. Johnson,
“[T]he Government assert[ed] that [the Court’s] interpretation w[ould] make it more difficult to remove, pursuant to 8 U.S.C. § 1227(a)(2)(E), an alien convicted of a ‘crime of domestic violence’ ... based upon battery convictions that ... do not require the use of violent physical force.” Id. at 1273. The Court responded:
This exaggerates the practical effect of our decision. When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the “modified categorical approach” that we have approved permits a court to determine which statutory phrase was the basis for the conviction by consulting the [judicially noticeable documents].
Id. (emphasis added) (quotation marks and citation omitted). This language, too, could be read to suggest that the purpose of the modified categorical approach is limited to determining under which portion of a divisible statute a defendant was convicted.
Judge Berzon argues that “Johnson dispels any remaining doubt” that the modified categorical approach is limited to divisible statutes. Berzon Op. at 951. Specifically, she argues that because the Court was trying to offer the modified categorical approach as a flexible option for the government, the Supreme Court had an incentive to state the rule as broadly as it could. In effect, because the Court did not explicitly authorize use of
We acknowledge that language in Nijhawan and Johnson provides support for limiting the modified categorical approach to divisible statutes. However, this language lacks conclusive weight for several reasons. First, neither opinion states explicitly that the only purpose of the modified categorical approach is to narrow a divisible statute to the generic definition. See Woods,
3
Beyond Nijhawan and Johnson, the circuits are a bit of a jumble. Some circuits have adopted a divisible-statutes-only rule, although few have given full attention to the rule. Others have adopted ambiguous or even conflicting rules, with several reflecting the stop-and-start analysis that we have experienced. For example, the Seventh Circuit has strongly suggested that the modified categorical approach is limited to divisible statutes. In United States v. Woods,
Whatever the apparent force of Woods, the Seventh Circuit has recently refined its course, and it is less clear that the court has converged on a divisible-statutes-only rule. In United States v. Fife,
Four other circuits — the First,
4
Although we acknowledge that Aguila’s argument has support, we are not persuaded by it. In the end, we believe that this argument is inconsistent with the Supreme Court’s mandate in Taylor that we apply a modified categorical approach that considers to some degree the factual basis for the defendant’s conviction — as determined by looking at the limited universe of Shepard documents — in order to determine what the jury must have found.
Aguila’s argument interprets the concepts of “actually required” and “necessarily rested” in Taylor and Shepard to mean “actually required” and “necessarily rested” in a strictly elemental sense — that is, a prosecutor must be “actually required” to prove the generic elements in every case brought under the state statute so that a jury’s finding must have “necessarily rested” on that element in every trial brought under the provision. For example, if the generic crime requires use of a gun and the state crime requires no weapon at all, then the factfinder is not always required to find that the defendant used a gun. As a consequence, according to Aguila and Judge Berzon, the modified categorical approach can never demonstrate that the factfinder was “actually required,” as a formal matter, to find a non-elemental fact.
The problem with this framework is that if we follow its logic, the modified categorical approach should not apply to divisible statutes, leaving no room for a modified approach at all. Even in the divisible statute situation, the factfinder is never “actually required” by the statute alone to find the precise elements of the generic crime.
In other words, Aguila’s reading of “actually required” collapses the modified categorical approach into the categorical approach, because the only time that the factfinder in the state case is “actually required” to find a particular generic element in that way is when conviction under the state statute always satisfies the generic statutory definition regardless of the particular facts of the case, either because the state statute matches the generic crime or because the state statute criminalizes a narrower range of conduct than the generic crime. Thus, in order to preserve any role for the modified categorical approach, “actually required” cannot mean “actually required by specific words in the statute of conviction.”
Because applying the modified categorical approach permits some consideration of the particular acts the defendant committed, Taylor requires a modest, but more nuanced inquiry. The modified categorical approach simply asks, in the course of finding that the defendant violated the statute of conviction, was the factfinder actually required to find the facts satisfying the elements of the generic offense? In other words, the purpose of the modified categorical approach is to determine (1) what facts the state conviction necessarily rested on and (2) whether these facts satisfy the elements of the generic offense. See Shepard,
For example, regarding our gun/axe divisible statute, as we understand Taylor, if the indictment alleges only that the defendant used a gun, and the only prosecutorial theory of the case (as ascertained exclusively through the relevant Shepard documents) is that the defendant used a gun, then we can be confident that if the jury convicted the defendant, the jury found that the defendant used a gun rather than an axe. In such an instance, we would say that, given the facts put forward by the government, the jury was “required” to find that the defendant used a gun. And in the plea context, if the only weapon the defendant admitted to using was a gun, then we can be confident
Under such an approach, we are confident of the facts that fill the gap between a divisible statute of conviction and the generic statute because we have limited our review of the record to “only a restricted look beyond the record of conviction under a nongeneric statute.” Shepard, 544 U.S. at 23,
Once we acknowledge that “actually required” means something like “actually required in light of the facts the defendant admitted” or “actually required in light of the facts referred to in jury instructions,” there is little logical difference between divisible statutes and missing-element statutes in terms of when the modified categorical approach may appropriately be applied. In both cases, courts must rely on the same set of documents reflecting the facts necessarily found by the trier of fact in support of the conviction; they cannot look to any different documents or facts when considering a conviction under a missing-element statute than they would when reviewing a conviction under a divisible element statute. If the defendant could not have been convicted of the offense of conviction unless the trier of fact found the facts that satisfy the elements of the generic crime, then the factfinder necessarily found the elements of the generic crime. Consider again our example of the situation in which the generic aggravated assault offense requires (1) harmful contact and (2) the use of a gun, whereas the statute of conviction requires only harmful contact. If the Shepard documents establish that the factfinder necessarily found that the defendant satisfied the “harmful contact” element by inflicting harmful contact with a gun, then the conviction “necessarily rested” on this fact. Take, for example, an indictment alleging that the defendant used a gun to inflict harmful contact on a victim from 200 feet away. Or, perhaps the defendant admitted in a guilty plea to shooting the victim. Either way, the factfinder was actually required to find the facts that satisfy the elements of generic aggravated assault, which is all that Taylor requires.
There is an important limitation on our analysis of the modified categorical approach. Although we have concluded that a missing-element statute can be examined under the modified categorical approach, a court must exercise caution in determining what facts a conviction “necessarily rested” on. It is not enough that an indictment merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.
Our circumscribed interpretation of the modified categorical approach addresses this concern. If indeed a fact was necessary to the defendant’s conviction, then the defendant certainly has the incentive to contest that fact, even if that fact is not separately listed as a statutory element of the crime. Let us return to our example in which the generic aggravated assault offense requires (1) harmful contact and (2) use of a gun, whereas the statute of conviction requires only harmful contact. Under our reading of the modified categorical approach, if the Shepard documents establish that the defendant satisfied the “harmful contact” element by inflicting harmful contact with a gun, then the factfinder was “actually required” to find that the defendant used a gun, and the conviction “necessarily rested” on this fact. In such a situation, the defendant has every incentive to demonstrate that he did not use a gun. If the defendant is successful in this showing, he will have successfully refuted the only theory that the government put forward regarding how he committed the harmful contact, and the jury will acquit him. On the other hand, if the jury convicts the defendant, then we may be confident that the jury determined that he used a gun, because such a determination was necessary given the government’s theory of guilt. Once again, the fact that we may only rely on a narrow and defined range of documents — the indictment, jury instructions, judicial findings, plea agreements, plea colloquies, and the like — ensures that the defendant will have understood and had an opportunity to contest all facts which are necessary to his conviction.
Although our holding today is an expansion of the modified categorical approach relative to Navarro-Lopez, our interpretation of the modified categorical approach contains important limitations to ensure that it remains a narrow exception to the categorical approach. See Taylor,
5
Our interpretation of the modified categorical approach finds strong support in the uniformity principle underlying Taylor. In finding that “ ‘burglary’ ... must have some uniform definition independent of the labels employed by the various States’ criminal codes,” the Taylor Court reasoned that Congress’s intent in enacting the ACCA was to “protect[] offenders from the unfairness of having enhancement depend upon the label employed by
Yet this California-Michigan dilemma is precisely the result produced by Navarro-Lopez’s “missing element” rule. Under that restrictive rule, if the offense of conviction lacks an element of the generic crime, a court may never look beyond the terms of the statute to determine the factual basis for a defendant’s conviction, even if the defendant specifically admits to facts that would satisfy the generic definition. This rule means that certain state crimes can never be used for enhancement or removability purposes. For example, because California Penal Code § 459 arguably lacks the element of unlawful or unprivileged entry, under Navarro-Lopez’s rule, a person who violates this statute will never be considered to have been convicted of generic burglary, regardless of what he did or what he admitted to.
By contrast, a person who commits the exact same offense in a state whose burglary statute happens to require proof of unlawful entry — say, Michigan — is subject to a sentence enhancement. The Court’s concern in Taylor with one kind of formalism, in which every criminal act a state denominates as a “burglary” counts (even when it shouldn’t), was not meant to create
Our concern is thus both practical and pervasive. The process of mapping a generic federal definition onto state crimes— defined variously by a combination of common law definitions, model penal codes, statutes, and judicial exposition — has exposed the diversity of legal thought among state legislatures and courts. See Woods,
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In sum, Navarro-Lopez’s “missing element” rule is overruled, as are any subsequent cases to the extent that they relied on that rule and are inconsistent with the revised modified categorical approach discussed here. In any case requiring the application of Taylors categorical approach, in the event that we determine that the statute under which the defendant or alien was previously convicted is categorically broader than the generic offense, we may apply the modified categorical approach. Under the modified categorical approach, we determine, in light of the facts in the judicially noticeable documents, (1) what facts the conviction necessarily rested on (that is, what facts the trier of fact was actually required to find); and (2) whether these facts satisfy the elements of the generic offense.
We turn now to Aguila’s particular case.
V
In 1988, Aguila was convicted of first-degree residential burglary under California Penal Code § 459, which punishes “[e]very person who enters [various structures] ... with intent to commit grand or petit larceny or any felony.” Following Aguila’s 2004 conviction for illegal reentry after deportation, in violation of 8 U.S.C. § 1326, the district court enhanced Aguila’s sentence under U.S.S.G. § 2L1.2(b)(l)(A), holding that his prior burglary conviction qualified as “burglary of a dwelling” and therefore a “crime of violence” under the Guidelines. U.S.S.G. § 2L1.2 cmt. n. l(B)(iii). Aguila argues that his 1988 conviction does not qualify as a “burglary of a dwelling” under either Taylor’s categorical or modified categorical approach because California Penal Code § 459 lacks the element of “unlawful or unprivileged entry.”
A
We have consistently held that California Penal Code § 459 is categorically broader than generic burglary because it contains no requirement of “unlawful or unprivileged entry.” See, e.g., Rodriguez-Rodriguez,
On its face, California Penal Code § 459 does not require that the entry be “unlawful or unprivileged,” punishing a person who merely “enters” a structure “with intent to commit grand or petit larceny or any felony.” However, in a sense, California case law does in fact require “unlawful or unprivileged” entry. The seminal case on this issue is People v. Barry,
contended] that a grocery store, during business hours, is a public place, and the defendant, as one of the public, had a legal right to be there, or rather to enter there; that the proprietors were doing business with the general public; the public were invited to enter; that therefore the defendant entered under an invitation of the owners, and that, consequently, his entry was lawful, and there can be no burglary when there is a lawful entry.
Id. at 1026-27 (emphasis added). The California Supreme Court rejected the appellant’s proposition that his entry was lawful, stating: “To this reasoning, we can only say a party who enters with the intention to commit a felony enters without an invitation. He is not one of the public invited, nor is he entitled, to enter.” Id. at 1027. In other words, when a person enters a place that is generally open to the public with the intent to commit a felony, the place is essentially not “public” as to that person, and that person has entered unlawfully.
The court elaborated on this concept in People v. Gauze,
that defendant cannot be guilty of burglarizing his own home. His entry into the apartment, even for a felonious purpose, invaded no possessory right of habitation; only the entry of an intruder could have done so. More importantly defendant had an absolute right to enter the apartment. This right, unlike that of the store thief in Barry, did not derive from an implied invitation to the public to enter for legal purposes. It was a personal right that could not be conditioned on the consent of defendant’s roommates. Id.
Finally, the court sharply limited Gauze’s holding in People v. Frye,
These cases demonstrate that it is not so much that California burglary law lacks the requirement of unlawful or unprivileged entry; it simply contains a nuanced definition of “unlawful or unprivileged” different from the common law definition. Importantly, Barry, Gauze, and Frye all require that a defendant form his felonious intent prior to entering the structure. The nuance comes in where a defendant enters the structure with some kind of (at
Fortunately, the Court did provide us with some guidance as to the meaning of “unlawful or unprivileged entry.” In a footnote following its definition of generic burglary, the Court stated:
This usage approximates that adopted by the drafters of the Model Penal Code: A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.’
Id. at 598 n. 8,
Based on the use of the disjunctive “or” in both the Model Penal Code and the LaFave and Scott definitions, it appears that the Court meant its “unlawful or unprivileged” requirement to preclude conviction for burglary in two situations: (1) where the premises are open to the public; and (2) where the person is licensed or privileged to enter. The MPC elaborates on these excluded situations as where
a servant enters his employer’s house as he normally is privileged to do, intending on the occasion to steal some silver; a shoplifter enters a department store during business hours to steal from the counters; a litigant enters the courthouse with intent to commit perjury; [and where] a fireman called on to putout a fire resolves, as he breaks down the door of the burning house, to misappropriate some of the householder’s belongings.
MPC § 221.1 cmt. at 69; see also LaFave AND Scott, supra, § 8.13(a) (describing the MPC’s definition as “a sound approach”).
California law permits burglary convictions both where the premises are open to the public and where the person is licensed or privileged to enter under the above definitions. Regarding the former situation, California permits a burglary conviction where the person enters a place open to the public so long as the person enters with the intent to commit a felony and does not have an unconditional possessory right to enter. In contrast, based on the authorities Taylor cites for its generic definition, it appears that an entry is never “unlawful or unprivileged” if “the premises are at the time open to the public.” MPC § 221.1. California law also permits burglary convictions where a person is licensed or privileged to enter the structure. California law precludes conviction where the alleged burglar has an unconditional possessory right to enter the structure, but the MPC’s definition of “licensed or privileged” precludes conviction in the additional situations of “a servant [who] enters his employer’s house as he normally is privileged to do, intending on occasion to steal some silver,” and “a shoplifter [who] enters a department store during business hours to steal from the counters.” MPC § 221.1(a) cmt. at 69. In contrast, California law would permit convictions in these situations — both the servant and the shoplifter could be convicted because they would not have an unconditional possessory right to enter the structures involved and because they entered with felonious intent. See Barry,
Taylor provides further support for the conclusion that California law permits convictions for burglary that lack the generic requirement of “unlawful or unprivileged entry.” Before setting out its definition of generic burglary, the Taylor Court found it “implausible that Congress intended the meaning of ‘burglary’ ... to depend on the definition adopted by the State of conviction,” as this “would mean that a person convicted of unlawful possession of a firearm would, or would not, receive a sentence enhancement based on exactly the same conduct, depending on whether the State of his prior conviction happened to call that conduct ‘burglary.’ ”
In sum, burglary under California Penal Code § 459 is categorically broader than generic burglary because California’s definition of “unlawful or unprivileged entry,” unlike the generic definition, permits a conviction for burglary of a structure open to the public and of a structure that the defendant is licensed or privileged to enter if the defendant enters the structure with the intent to commit a felony.
Our inquiry under the modified categorical approach is whether the record demonstrates that Aguila’s conviction necessarily rested on facts that satisfy the elements of “burglary of a dwelling.” Our analysis as to the manner in which California burglary is categorically broader than generic burglary makes clear that the modified categorical approach is of no help to the government in Aguila’s case.
The government submitted three documents. First, the government submitted the California court’s Certificate and Order of Magistrate, which certified that Aguila and counsel
appeared before [the judge] in open court; that [the judge] read the said complaint to said defendant; and that [the judge] then asked the said defendant whether he pleaded guilty to the offense(s) charged in said complaint.... [T]he said defendant pleaded guilty to the following offense(s) charged in said complaint, to wit: Burglary, in violation of section 459, Penal Code, a Felony.
(Emphasis added.) In turn, Count 1 of the Felony Complaint to which Aguila pled guilty alleges that:
On or about January 4, 1988, in the County of Los Angeles, the crime of RESIDENTIAL BURGLARY, in violation of PENAL CODE SECTION 459, a Felony, was committed by GUILLERMO AGUILA, who did willfully and unlawfully enter an inhabited dwelling house and trailer coach and inhabited portion of a building occupied by Jacinto Padilla, with the intent to commit larceny and any felony.
(Emphasis added.) Finally, the government submitted the certified Abstract of Judgment, which confirms that Aguila was in fact convicted of the first-degree residential burglary offense alleged in Count 1 of the Felony Complaint.
When a defendant pleads guilty to a count, he admits the factual allegations stated in that count. Rodriguez-Rodriguez,
However, these cases did not delve deeply into California’s case law construing California Penal Code § 459. Our reading of this case law leads us to conclude that Rodriguez-Rodriguez and the cases using similar reasoning incorrectly applied the modified categorical approach because, quite simply, the word “unlawfully” in Aguila’s indictment tells us nothing
As discussed above, although California Penal Code § 459 does not use the words “unlawful or unprivileged” to modify the word “entry,” the California Supreme Court has indeed established a form of an “unlawful or unprivileged entry” requirement — it has required that the defendant’s felonious intent be formed prior to the entry, and has permitted a burglary conviction only where the defendant did not have an unconditional possessory right to enter the structure. See, e.g., Gauze,
The words “unlawfully enter” in Aguila’s indictment provide us with no indication as to whether Aguila was licensed or privileged to enter Jacinto Padilla’s home or whether Padilla’s home was open to the public because, under California law, such entries would be unlawful even if Aguila entered the home with Padilla’s permission. We therefore disagree with Judge Rawlinson’s contention that “[b]y pleading guilty to unlawfully entering a dwelling occupied by someone else, Aguila-Montes necessarily admitted that there was no licensed or privileged entry premised on a possessory interest or on the occupant’s informed consent.” Rawlinson Op. at 981. To the contrary, because of California’s unusual approach to defining unlawful or unprivileged entry, the Shepard documents do not permit such an inference. Examining only those documents, we could not rule out the possibilities that Aguila was attending a dinner party at Padilla’s invitation; that Padilla was hosting an open house which Aguila took advantage of; that Padilla had asked Aguila to house-sit while he was away for vacation; or that Aguila had a key to Padilla’s house, and that Padilla had told him he was free to enter at any time unless he was planning to rob the house.
In short, conviction records for California burglary cannot demonstrate that a defendant was convicted of generic burglary unless they do something more than simply repeat the elements of California burglary. Here, for example, if the Felony Complaint to which Aguila pled guilty stated that Aguila “did willfully and unlawfully enter a private inhabited dwelling house without the owner’s consent,” the document would have been sufficient to support a finding that Aguila had committed generic burglary. They did not. The documents only reveal that Aguila pled guilty to the bare elements of California burglary. Accordingly, under the modified categorical approach, the documents produced by the government do not demonstrate that Aguila’s conviction necessarily rested on facts satisfying the elements of the generic crime of “burglary of a dwelling.”
VI
Navarro-Lopez’s two-paragraph analysis with respect to the modified categorical approach, including its “missing element” rule, see
VACATED AND REMANDED.
Notes
. Aguila raised several other issues before the Aguila I panel, which were resolved against Aguila in a separate, unpublished memorandum disposition. See United States v. Aguila-Montes de Oca,
. Judge Gould dissented, arguing that "the application of Navarro-Lopez ... to the California burglary statute here is inconsistent with the scope intended by the United States Supreme Court for its doctrine of modified categorical analysis, as outlined in Taylor." Id. (Gould, J., dissenting).
. See, e.g., United States v. Nobriga, 474 F.3d 561, 564 (9th Cir.2006) (per curiam) (applying the modified categorical approach to determine whether a conviction involved an intentional use of force because the statute of conviction did not require it); Galeana-Mendoza v. Gonzales,
. For example, at least one panel failed to recognize the change wrought by Navarro-Lopez and ignored it. See Salazar-Luviano v. Mukasey,
. We note that other circuits have used the term "divisible statute” in potentially different ways. See Lanferman v. Bd. of Immigration Appeals,
. Two of these scenarios were identified in Judge Kozinski’s concurring opinion in Li, which was cited favorably in Navano-Lopez, see
. This statute was divisible because it permitted conviction either by "[a]ctually and intentionally touch[ing] ... another person” or by "[intentionally causing] bodily harm to another person.” Fla. Stat. § 784.03(l)(a). The second of these subparts clearly involved "the use ... of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), and thus satisfied the ACCA’s definition of "violent felony.” The first of these subparts did not. See Johnson,
. Chief Judge Easterbrook, joined by Judges Posner and Tinder, dissented from the denial of rehearing en banc, arguing "that the sentencing judge should be allowed to look at the charging papers and plea colloquy in the criminal prosecution whether or not the statute is 'divisible.' ” Woods,
. See United States v. Giggey,
. See United States v. Rivers,
. See, e.g., United States v. Lipscomb,
. See United States v. Boaz,
. See United States v. Armstead,
Judge Berzon cites United States v. Young,
. See United States v. Townley,
Judge Berzon argues that the Tenth Circuit adopted a divisible-statute-only rule in United States v. Charles,
Judge Berzon also mischaracterizes Zuniga-Soto. It is true that the Tenth Circuit in that case corrected an intra-circuit split that resulted in cases that were "not always focused on the elements of the prior conviction.”
. Although Judge Berzon’s claim that the Second Circuit, by its terms, appears to restrict application of the modified categorical approach to "divisible statutes,” Berzon Op. at 954-56, is correct, several cases have suggested that court uses the term "divisible statute” in a manner that might encompass missing element statutes. See, e.g., Lanferman v. Board of Immigration Appeals,
. There is tension between two of the Third Circuit's cases. In Knapik v. Ashcroft,
[W]e depart[ ] from a strict categorical analysis only where the statute of conviction feature[s] disjunctive variations, some of which were sufficient for conviction of the federal offense and others of which were
Id. at 471-72 (emphases added) (quotation marks and citation omitted) (alteration in original); see also id. at 474 (inquiry must be focused "on the crime of which the alien was convicted — not the specific acts that the alien may have committed ”). Adding to our confusion, Jean-Louis cites Knapik favorably.
. The Eleventh Circuit has also adopted language favoring a divisible-statute-only rule without specifying whether the modified categorical approach is limited to divisible statutes. See, e.g., Obasohan v. U.S. Att’y Gen.,
. Judge Berzon argues that the modified categorical approach can only be applied when the statute of conviction is divisible. But her confidence in the divisible-statute-only rule really turns on the reliability of the relevant Shepard documents. We are puzzled both by some misdirection in her analysis and by her failure to explain why this confidence is not equally applicable to other kinds of statutes. For example, Judge Berzon observes that prosecutors are required to specify under what statutory provision a defendant is being charged and must only pursue this theory "absent a formal amendment to the charging document,” Berzon Op. at 968; but elsewhere she states that "a charging document may, but may not, outline the prosecution’s theory,” id. at 961. Judge Berzon also notes that judges are required to craft jury instructions "in light of the charges and the proof at trial,” presumably suggesting that these in
In any event, the same reasons that motivate Judge Berzon to express confidence in the modified categorical approach in divisible statute cases suggest that we should have similar confidence in applying it to broad and missing element cases, so long as we are relying on the documents approved in Shepard. It is unclear why, according to Judge Berzon, these conviction records are unreliable when the conviction rests on a missing element statute, yet are perfectly reliable in determining under which part of a divisible statute a defendant was convicted.
. Ironically, had California chosen to include the phrase "entry, whether in a lawful or unlawful manner" to its definition of burglary — a nearly meaningless change — then the statute would be divisible and the modified categorical approach would clearly be applicable. The fact that California chose not to include words that indicated the only two possible types of entry into a building is the only reason that Judge Berzon believes we should not apply the modified categorical approach. Such a principle makes a defendant subject to a sentence enhancement turn entirely on the location in which he committed the prior offense, the precise outcome that Taylor sought to avoid in establishing a uniform definition of burglary. See
. Contrary to Judge Berzon's suggestion, the states have no incentive "to amend their criminal codes to better match the generic definitions contained in the federal recidivist statutes.” Berzon Op. at 973. But this is not a problem of their creation. It is a problem created by our efforts to understand how Congress intended federal sentences to account for prior state convictions. Federal recidivism statutes may or may not be good policy, but we have an obligation to try to enforce this policy as even-handedly as possible.
. Aguila made two other arguments for why the California statute is categorically broader than generic burglary: (1) the California statute covers structures not covered by the generic definition of "building or structure,” see Grisel,
. Judge Rawlinson suggests that Taylor's generic definition of burglary actually lacks the element of unlawful or unprivileged entry altogether, arguing that "[(Inclusion of the words 'or remaining in' signifies that the Supreme Court did not interpret the generic federal crime of burglary as necessarily requiring that the initial entry be unlawful or unprivileged.” Rawlinson Op. at 979. Indeed, the Court in Taylor did describe the generic crime of burglary as involving "basic elements” of "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.”
. It is worth noting that, under the language we used in Part IV, California Penal Code § 459 can be classified as containing a “broad” definition of "unlawful or unprivileged entry,” or missing the generic element of unlicensed or unprivileged entry altogether. For our purposes, this distinction is irrelevant.
Concurrence Opinion
It is common ground — as it of course has to be — that Taylor v. United States, the “grandfather” Supreme Court case on the question of applying federal recidivism statutes to particular prior convictions, instructs sentencing courts assessing a criminal defendant’s prior conviction to employ a “categorical approach.”
As to that question, Taylor tells us that the categorical approach may be modified, but only “in a narrow range of cases where [the trier of fact] was actually required to find all the elements of [the] generic [crime].” Id. at 602,
The majority finds in these instructions license for sentencing courts to “consider[ ] to some degree the factual basis” of a (possibly decades-old) prior conviction. Bybee op. at 935. So long as the sentencing court is “confident,” upon examining the “prosecutorial theory of the case” and “the facts put forward by the government” in the earlier proceeding, that the trier of fact was “required” (in a practical, but not legal, sense) to find facts that would satisfy the generic crime, then it may enhance a defendant’s sentence on that basis. Id. at 936-37. And the sentencing court must do so not only when there was a trial, but also where there was a guilty plea, and thus no way to determine what “theory of the case” the nonexistent trier of fact must have adopted. Most crucially, the sentencing court need no longer confine itself to the facts related to the elements of the crime of conviction, even though the prior proceeding, whether ended with a jury verdict or a guilty plea, will have been concerned at bottom only with assessing those elements, and even though elements have long been the touchstone of the categorical and modified categorical approach.
The majority’s fact-based approach simply cannot be reconciled with Taylor and its many Supreme Court progeny. Taylor warned that “the practical difficulties and potential unfairness of a factual approach are daunting,” and therefore rejected a factual approach, even though “[i]n some cases, the indictment or other charging paper might reveal the theory or theories of the case presented to the jury.” Id. at 601,
In adopting its fact-based approach, the majority overrules ohr circuit’s controlling precedent; dismisses as “dicta” and “illustrative” the Supreme Court’s clear guidance on this very question, Bybee op. at 927-28, 931-32; misinterprets Taylor and Shepard; ignores the constraints of the Sixth Amendment, as developed in the Apprendi line of cases; misapprehends several essential characteristics of our nation’s institutions of criminal justice; and refuses to follow the limited modified categorical approach adopted by every circuit that has addressed the question since the Supreme Court made the proper approach lucidly clear in the last few years — in particular, since Johnson and Nijhawan. Because I believe that the modified categorical approach has been strictly limited to “divisible statutes,”
I.
Before delving into the “modified categorical” problem on a conceptual level, I begin where intermediate appellate judges ought to begin — with whether the issue before us is open to fair dispute as a matter of binding Supreme Court precedent. Unlike the majority, I conclude that it definitely is not, as virtually all other circuits have recently recognized.
As will appear, I do not think Taylor and Shepard ever meant the modified categorical approach to go beyond what the majority calls “divisible statutes.” Taylor and Shepard are examined in detail below. Suffice it to say for present purposes that Taylor held that when determining whether a defendant’s prior conviction qualifies under one of several federal recidivist statutes, sentencing courts are ordinarily instructed to compare the elements of the particular crime for which the defendant was convicted with the elements of the “generic” federal definition of that crime. See Taylor,
As I discuss later, the majority is right that the modified categorical approach outlined in Taylor and Shepard was, at times, interpreted differently in this court and in other circuits. See Bybee op. at 922-28, 931-32. But Taylor and Shepard are no longer the last word. It is therefore most useful to start with the Supreme Court’s recent cases, Nijhawan v. Holder, — U.S.-,
A.
Nijhawan considered a provision of immigration law that authorizes removal of non-citizens who have a prior conviction for “an offense that ... involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.”
The Court’s reasoning in Nijhawan could not be clearer: if the loss threshold referred to an element of the generic crime, then a crime of conviction would only qualify if “the criminal fraud or deceit statute ... contains a monetary threshold of $10,000 or more.” Id. at 2297. In other words, Nijhawan envisions a binary world of federal recidivism statutes: Factual inquiries into the circumstances of prior convictions are permitted if, but only if, the federal statute does not refer to the element of the prior crimes, but to the underlying circumstances of the prior crime — in which case the entire Taylor categorical analysis is inapplicable. See id. at 2298-2302.
The remainder of Nijhawan confirms this conclusion in spades. The petitioner in Nijhawan argued that even if the $10,000 loss threshold was not an element of the prior crime, the factual inquiry into the nature of that crime should be limited to the same documents in the record of conviction to which Shepard limits sentencing courts under the modified categorical approach. See
First, Nijhawan said that “Taylor, James, and Shepard, the cases that developed the evidentiary list to which petitioner points, developed that list for a very different purpose, namely that of determining which statutory phrase (contained within a statutory provision that covers several different generic crimes) covered a prior conviction.” Id. at 2303 (emphasis added). Nijhawan then referred to its earlier description of the modified categorical approach, in which it explained that:
[T]he categorical method is not always easy to apply. Sometimes a separately numbered subsection of a criminal statute will refer to several different crimes, each described separately. And it can happen that some of these crimes involve violence while others do not. A single Massachusetts statute section entitled “Breaking and Entering at Night,” for example, criminalizes breaking into a “building, ship, vessel or vehicle.” In such an instance, we have said, a court must determine whether an offender’s prior conviction was for the violent, rather than the nonviolent, break-ins that this single five-word phrase describes (e.g., breaking into a building rather than into a vessel), by examining the indictment or information and jury instructions, or, if a guilty plea is at issue, by examining the plea agreement, plea colloquy or some comparable judicial record of the factual basis for the plea.
Id. at 2299 (emphasis added, citations and quotation marks omitted).
The second reason the Court gave for not restricting sentencing courts to the Shepard-sanctioned documents in ascertaining the loss amount was that “[this] proposal itself can prove impractical insofar as it requires obtaining from a jury a special verdict on a fact that ... is not an element of the offense.” Id. at 2303 (emphasis added).
In short, Nijhawan is crystal clear: The modified categorical approach is used to determine under which provision of a divisible statute a defendant was convicted, and it cannot be used to find non-elemental facts. The majority discusses Nijhawan (although tellingly, it does not mention its “special verdict” reasoning) but brushes its guidance aside as “dicta.” Bybee op. at 927-28. Regardless of one’s definition of “dicta,” this isn’t it.
Nijhawan’s discussion of the scope, purpose, and applicability of the categorical and modified categorical approach to Ni~ jhawan’s case was in direct response to arguments briefed and pressed by the parties. The arguments were further developed in four amicus curiae briefs and in the opinions of the Third Circuit, Nijhawan v. Att’y Gen. of the U.S.,
Moreover, as explained above, the Court’s holding — that a categorical approach is inapplicable to non-elemental facts, and, consequently, the court or agency may rely on non-elemental facts only where a statute permits a non-categorical approach — was ultimately dispositive of Nijhawan’s case. The Court’s extended discussion of the categorical and modified categorical approach was thus “grounded in the facts of the case,” id., and was certainly “ ‘germane to [its] eventual resolution,’ ” Miranda B. v. Kitzhaber,
B.
Were Nijhawan not clear enough — and it is — Johnson dispels any remaining doubt. Johnson held that a conviction under Florida’s divisible battery statute, Fla. Stat. § 784.03, was not categorically a violent felony because the statute encompassed convictions for “any intentional physical contact, no matter how slight.” Johnson,
This exaggerates the practical effect of our decision. When the law under which the defendant has been convicted contains statutory phrases that cover several different generic crimes, some of which require violent force and some of which do not, the “modified categorical approach” that we have approved permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record____
Id. (citation and quotation marks omitted).
The majority reads Johnson’s description of the functioning of the modified categorical approach as merely “illustrative.” Bybee op. at 931-32. But it gives no reason to take such a view of this passage in Johnson, and there is none. Johnson sought to highlight the flexibility that the modified categorical approach provides. So, if the modified categorical approach does, as the majority in this case maintains, allow the sentencing court to examine “the facts put forward by the government” in the earlier proceeding to determine the facts on which the conviction must have rested, Bybee op. at 936-37, the Supreme Court had every reason to say .so. That Johnson instead contemplates a far more circumscribed, less flexible inquiry — one limited to identifying “which statutory phrase was the basis for the conviction,”
The majority says that it has “several reasons” for declining to follow the clear import of Nijhawan and Johnson, but it only names two. Both amount to the as
C.
Seeking support for its conclusion that the question we address is an open one in the Supreme Court, the majority incorrectly maintains that the other courts of appeal are in broad disagreement as to the correct modified categorical approach. In fact, since 2008, and especially since Nijhawan, there has been a steady march toward applying the modified categorical approach only to divisible statutes.
It is fair to say that the courts of appeals — including this one — failed at first fully to appreciate the outer limits of the categorical and modified categorical approaches. At one time, the courts of appeals settled into essentially three camps: Some, recognizing that juries are never required to find facts that go beyond the elements of the crime, ruled that the modified categorical approach is available only to determine under which portion of a divisible statute the defendant was convicted. See, e.g., United States v. Smith,
In this circuit, after considerable waffling, we struck a middle course, interpreting Taylor and Shepard to permit resort to the modified categorical approach to find generic facts that are fairly encompassed within an element of the statute of conviction — i.e., in both what the majority terms the “divisible statute” and “broad element” situation, see Bybee op. at 924-25 — but not when the generic element was entirely missing. Navarro-Lopez v. Gonzales,
This three-way split is gone. The majority strains mightily to manufacture ambiguity in the jurisprudence of a few circuits, see Bybee op. at 10606-12, but the stark reality is that since Nijhawan and Johnson, every circuit to examine the issue has applied an approach consistent with those two cases’ pronouncements, the majority’s relegation of those pronouncements to the “dicta” wastebasket notwithstanding.
For example, the majority cites two Tenth Circuit cases (from 2006 and 2007, respectively) as support for a fact-based approach. See id. at 934 & n. 15. But those cases do not allow a sentencing court to review non-element facts.
The majority similarly, and similarly erroneously, claims support for its open-ended approach from a 2006 case from the Sixth Circuit, United States v. Armstead,
The criminal defendant in Bartee had been previously convicted of violating a statute that criminalizes “sexual contact with another person.... under circumstances involving the commission of any other felony.” Mich. Comp. Laws Ann. § 750.520c(l)(c); see Bartee,
The Sixth Circuit emphatically rejected the Government’s argument. Although it recognized that “this [inference] appears to have been the case factually,” the court agreed “with defendant that, categorically speaking, the conviction did not necessarily require proof of sexual contact with a minor.” Id. Bartee in fact criticized the district court for permitting “facts [to] invade[ ] [its] analysis.” Id.
Some other examples: Citing a 2004 case, the majority claims that the Third Circuit’s approach is “ambiguous.” Bybee op. at 934-35 & n. 16. Whether or not that is a fair characterization of the Third Circuit case cited,
Where a statute of conviction contains disjunctive elements, some of which are sufficient for conviction of the federal offense and others of which are not, we have departed from a strict categorical approach. In such a case, we have conducted a limited factual inquiry, examining the record of conviction for the narrow purpose of determining the specific subpart under which the defendant was convicted.
Id. at 466; see also Thomas v. Att’y Gen. of U.S.,
The majority similarly, and incorrectly, describes the state of the law in the Second and Eleventh Circuits as “ambiguous.” Bybee op. at 934-35 & nn. 15 & 17. Not so. Both the Second
The final count: All of our sister circuits (except for the District of Columbia Circuit, which apparently has had no occasion to weigh in on whether the modified categorical approach applies beyond the divisible statute context
II.
Even were we free to ignore the more recent Supreme Court cases — and of course we are not — the majority could not adopt the rule that the modified categorical approach is available to find any facts the jury “must have found.” Bybee op. at 935. Taylor and Shepard simply do not admit of that interpretation.
A.
Taylor considered a conviction under a state burglary statute.
Taylor then directly addressed the question before us today: How do we match a prior state conviction to the crime covered by a federal recidivism statute where the state conviction was under a statute that prohibits both conduct covered by the federal statute and other conduct that does not count for federal purposes. In that circumstance, Taylor permitted federal courts and agencies to go beyond consulting the state statutory definition, but only in “a narrow range of cases where a jury was actually required to find all the elements of [the] generic [crime].” Id. at 602,
A jury is only “required” to find whether, on the facts before it, the elements of the crime charged have been proven. Other factual circumstances surrounding the crime — -if it was a dark and stormy night, whether the postman actually rang twice, that the defendant wore a scarlet kimono, whether defendant harmed the victim using a gun or a blunt object, that a note with the word “moor” was found — may be central, even essential, considerations for the jury in determining what actually happened, as any reader of Sherlock Holmes stories or Agatha Christie novels knows. Still, while “a jury in a federal criminal case cannot convict unless it unanimously finds that the Government has proved each element,” the jury need not “decide unanimously which of several possible sets of underlying brute facts make up a particular element, say, which of several possible means the defendant used to commit an element of the crime.” Richardson v. United States,
The majority’s approach is no more consistent with Shepard’s more specific instructions for applying the modified categorical approach to guilty pleas. See
Crucially, Shepard rejected an alternate, factual approach even where, as was the case in Shepard itself, “the records of the prior convictions ... are in each instance free from -any inconsistent, competing evidence on the pivotal issue of fact separating generic from nongeneric burglary.” Id. at 22,
In short, Shepard like Taylor, permits application of the modified categorical approach only when a prior conviction can be said as a matter of law to have rested on generic elements found by a jury or admitted by the defendant. No inferences from the factual context are allowed. ■
B.
The majority’s fact-based approach, limited though it purports to be, just cannot be squared with Taylor or Shepard, let alone with Nijhawan and Johnson.
According to the majority, sentencing courts need not stick to what the trier of fact was legally required to find, or the defendant was legally required to admit; they are free to determine what must have been found or admitted, in light of the “prosecutorial theory of the case.” Bybee op. at 936. As the majority concedes, its
The majority’s own examples show why this formulation flies in the face of Taylor and Shepard. Positing a hypothetical aggravated assault statute with only one element, harmful contact, the majority asserts that a sentencing court could use the modified categorical approach to find that, “given the facts put forward by the government, the jury was ‘required’ to find that the defendant used a gun,” id., if the record includes “an indictment alleging that the defendant used a gun to inflict harmful contact on a victim from 200 feet away.” Id. at 937. This allegation alone, we are told, would establish that “the fact-finder was actually required to find the facts that satisfy the elements of generic aggravated assault.” Id.
Again, not so. The majority’s example seems to assume that where an indictment alleges a fact not essential to the conviction — like the fact that a gun was used, when the statute is violated by any harmful contact — the jury must find that fact to convict. That’s wrong. Although state law may impose additional requirements, the federal constitution requires only that juries agree as to elements of the crime, and juries are generally free to disagree as to means by which the defendant committed a particular element. See Richardson,
So, to work, the majority’s “theory of the case” thesis must depend on an antecedent inference — namely, that no evidence supporting any other theory of harm was ever presented to or could have been inferred by the factfinder. And that is a question of fact. Consequently, and despite its protestations to the contrary, the majority’s approach does permit a factual inquiry — specifically, an inquiry into what the participants in the prior proceeding must have been thinking and doing. What is the standard of proof for this factual inquiry, according to the majority? Apparently, before enhancing a defendant’s sentence, the judge need only be “confident” that the factfinder in the prior proceeding was “required” to find a fact that it was not actually required to find. See Bybee op. 936-37.
The Shepard majority in no uncertain terms forbade the majority’s fact-lite “theory of the case” approach. Shepard recognized the logic underlying that approach:
If the transcript of a jury trial showed testimony about a building break, one could say that the jury’s verdict rested on a finding to that effect. If the trial record showed no evidence of felonious entrance to anything but a building or structure, the odds that the offense actually committed was generic burglary would be a turf accountant’s dream.
Indeed, Taylor expressly rejected basing any inferences on the “theory or theories of the case” presented to the factfinder:
In some cases, the indictment or other charging paper might reveal the theoryor theories of the case presented to the jury. In other cases, however, only the Government’s actual proof at trial would indicate whether the defendant’s conduct constituted generic burglary. Would the Government be permitted to introduce the trial transcript before the sentencing court, or if no transcript is available, present the testimony of witnesses? Could the defense present witnesses of its own and argue that the jury might have returned a guilty verdict on some theory that did not require a finding that the defendant committed generic burglary?
Taylor,
Taylor and Shepard’s square rejection of the majority’s “theory of the case” approach is reason enough to cast it away, even if one manages somehow to put aside Nijhawan and Johnson. But, digging deeper, it becomes apparent that several of the reasons that Taylor and Shepard gave for rejecting any factual approach apply equally to the majority’s purportedly modest proposal: The majority’s “theory of the case” factual analysis will lead to routine violations of the Sixth Amendment right to trial by jury, as articulated in Apprendi; will create massive practical difficulties; and will subject defendants who plead guilty to unfair and unintended consequences.
1.
The majority’s fact-based approach entirely disregards an underlying, essential premise of Shepard — that strict adherence to the Taylor rule is required to avoid “serious risks of unconstitutionality” in light of the Sixth Amendment rule announced in Apprendi v. New Jersey,
The Sixth and Fourteenth Amendments guarantee the right of criminal defendants to have any fact that increases the statutory maximum sentence submitted to a jury and proved beyond a reasonable doubt.
Apprendi did not suggest that finding facts about a prior conviction was permissible; the exception was limited by its terms to the fact of a prior conviction. Moreover, several aspects of Apprendi’s treatment of Almendarez-Torres reinforce that this exception, like the modified categorical approach, is indeed “narrow,” and meant to remain so. Id.
First, Apprendi acknowledged that Almendarez-Torres is in significant tension with its holding, calling Almendarez-Torres “at best an exceptional departure from ... historic practice” and declaring that “it is arguable that Almendarez-Torres was incorrectly decided.” Id. at 487, 489,
Both the certainty that procedural safeguards attached to any “fact” of prior conviction, and the reality that Almendarez-Torres did not challenge the accuracy of that “fact” in his case, mitigated the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a “fact” increasing punishment beyond the maximum of the statutory range.
The majority’s approach permits fact-finding that goes well beyond Apprendi’s “narrow” exception for the “fact of a prior conviction,” and so does not meet the “certainty” requirement that justifies the exception. As explained in Part III, the majority extends the Almendarez-Torres exception to instances in which the “procedural safeguards” that undergird that exception are flimsy or entirely absent. By doing so, the majority countenances the violation of the Sixth Amendment rights of criminal defendants.
2.
As Taylor observed, determining from a record of conviction what factual theories and arguments were advanced in the prior proceeding poses a “daunting” practical difficulty.
Even in the relatively few cases that go to trial,
Additionally, a defendant’s contrary theory of the case will rarely, if ever, appear from the records of conviction. A question the majority does not address is whether the defendant would be able to introduce his own evidence to show that the jury could have convicted (or he could have pleaded guilty) on an alternate theory. Due process would likely dictate that he have that opportunity, see United States v. Petty,
Moreover, although the majority focuses on convictions after trial, in practice the overwhelming majority of modified categorical inquiries will consider convictions entered pursuant to a guilty plea, not trial. The “practical difficulties” posed by the majority’s approach when applied to guilty pleas are, if anything, more “daunting” than when applied to convictions after trial. Taylor,
The majority’s limited discussion of the vastly prevalent plea context takes off from the premise that “[w]hen a defendant pleads guilty to a count, he admits the factual allegations stated in that count.” Bybee op. at 945. Once more, the majority is wrong.
For decades, our case law has been clear: “We have declined to treat ‘guilty pleas as admitting factual allegations in the indictment not essential to the government’s proof of the offense.’ ” United States v. Forrester,
So, in federal court, a defendant pleading guilty is only required to admit the elements of the offense, including specifying one or another of any alternative elements. Under our cases, then, an attorney advising his client about whether he should attempt to correct erroneous or disputed non-elemental facts contained in a plea agreement or indictment would be perfectly justified in assuring his client that there is simply no need to correct those misstatements of fact. Not only are they by definition irrelevant to guilt or innocence, but they are also not admitted by a guilty plea, standing alone. In this circumstance, there is little to gain by squabbling over irrelevant facts, and perhaps much to lose, such as the prosecutor’s goodwill or the sentencing judge’s perception that the defendant has accepted responsibility for his actions.
In state courts — which, of course, handle the majority of criminal prosecutions— whether a guilty plea admits non-elemental facts varies by jurisdiction. Compare State v. Kappelman,
In sum, the majority’s inquiry, extending to non-elemental facts, goes beyond asking what the defendant necessarily admitted, as Shepard commands. Instead, it embarks on a fact-mining inquiry that is without support in federal case law and ignores the procedural niceties applicable in various state courts.
3.
Finally, application of the majority’s “theory of the case” approach to guilty plea convictions, in particular, bears out “the unfairness of a factual approach.” Taylor,
Defendants often plead, as part of plea “deals” with the prosecution, to less serious crimes than originally charged. See, e.g., Ellis v. U.S. Dist. Court for the W. Dist. of Wash. (Tacoma) (In re Ellis),
Taylor recognized this very problem and shaped its non-fact-based approach to pri- or convictions to avoid it: “Even if the Government were able to prove [facts constituting generic burglary], if a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, it would seem unfair to impose a sentence enhancement as if the defendant had pleaded guilty to burglary.” Id. at 601-02,
As one would expect from the prevalence of pleas to lesser offenses than those originally charged, Taylor’s concern was not hypothetical. Before Navarro-Lopez, at least one panel of this court concluded that a defendant who pleaded guilty to a lesser included offense was actually convicted of the more serious offense with which he was originally charged. In United States v. Guerrero-Velasquez,
The majority’s version of the modified categorical approach invites a parade of Guerrero-Velasquezes. For example, a defendant charged with willful infliction of corporal injury on a spouse, Cal.Penal Code § 273.5(a), who pleaded guilty only to simple battery, CaLPenal Code § 242, could be found to have been convicted of the more serious “crime of domestic violence,” 8 U.S.C. § 1227(a)(2)(E)(l)(i), and thus ineligible for cancellation of removal, based upon facts recited in a superseding indictment, superseding information, or plea agreement. Or a defendant charged with sexual abuse of a minor, CaLPenal Code § 261.5(d), who in fact maintained that he engaged in consensual intercourse with his seventeen-year-old girlfriend and thus pleaded guilty only to misdemeanor sexual intercourse with a person under eighteen, CaLPenal Code § 261.5(b), may nevertheless be found to have admitted to the more serious crime on the same basis.
Such an approach creates the very “potential for unfairness” Taylor warned against.
In sum, the majority’s purported inquiry into what the jury “must have found,” Bybee op. at 935, or what the defendant admitted, see id. at 937-38, creates the very same “practical difficulties and potential unfairness,” Taylor,
III.
The crux of the majority’s reasoning is that the problems identified .above, serious though they may be, cannot require that the modified categorical approach be limited to the divisible statute situation. That limit, according to the majority, would effectively collapse the modified categorical approach into the categorical approach. See Bybee op. at 935-38. The majority’s bottom line is that when the Supreme Court instructs us to examine the elements the jury “was actually required to find,” Taylor,
Before explaining the numerous reasons why this assertion is wrong, it is important to be clear that this superfluity premise is the lynchpin of the majority’s justification for its factual approach. Starting from this erroneous premise, the majority casts about for an alternate meaning for TayloVs “actually required to find,”
And indeed, the majority’s premise is quite wrong. In addition to its misunderstanding of Supreme Court precedent, its unfairness to defendants, and its disruption of the guilty plea process, the majority’s account of how a criminal defendant is convicted under a divisible statute misapprehends several fundamental features of our criminal justice system. The majority also ignores the variability amongst the states as to criminal procedure, even though state courts are the source of most convictions relevant to federal recidivist statutes. Once those errors are straightened out, it becomes apparent that the divisible statute approach does leave a role for the modified categorical approach consistent with the one the Supreme Court intended.
A.
As an initial matter, we should not be surprised to find that the modified categorical approach, correctly applied, is both quite narrow and bears a close resemblance to the formal categorical approach. As the name implies, the modified categorical approach is a variant of the categorical approach, not, as the majority would have it, an “exception” to it. Bybee op. at 938; see Nijhawan,
True, many criminal statutes are not divisible in the pertinent sense, so the modified categorical approach will not be universally, or perhaps even broadly, available. But that is why, presumably, the Supreme Court has stated from the outset that the approach is available only “in a narrow range of cases.” Id. at 602,
B.
The majority makes a fundamental error when it asserts that, even in the divisible statute situation, a court could never conclude with regard to a prior conviction that the earlier trier of fact was required as a purely legal matter to find the “precise elements of the generic crime,” because a trier of fact is always free to convict the defendant under any statutory alternative, “leaving no room for a modified approach.” Bybee op. at 935 (emphasis omitted). In other words, to use the hypothetical posited by the majority, the majority assumes that even if the statute of conviction criminalizes harmful offensive conduct with a gun or an axe, a sentencing court would never be able to ascertain whether a jury’s verdict or guilty plea was predicated on the use of a gun or an axe, because the trier of fact would have been free to convict on either of the two statutory alternatives. See id. at 935-37.
But — still one more time — the majority is wrong. In reality, procedural safeguards governing charging documents prevent a prosecutor from charging a defendant, under the majority’s hypothetical aggravated assault statute, with “the use of a gun or an axe.” As will be explained, the application of the various procedural safeguards is complex, and the outer limits are not always clear. Moreover, there
The constitutional principle that sets the outer boundaries for permissible prosecutorial pleading is the Sixth Amendment’s guarantee to all criminal defendants of the right “to be informed of the nature and cause of the accusation.” See Hamling v. United States,
Instead, a prosecutor has a choice: First, he can charge the “use of a gun” or “the use of an axe,” but not both. If he charges in this manner, that choice will be evident from the charging document itself, illustrating the reason why Shepard permits a later sentencing court to consult the indictment or information to determine the provision of a divisible statute under which the defendant was convicted'. See Shepard,
The law regarding variances between the charging document’s allegations and
Alternatively, and assuming that the statute does not set forth separate offenses but only separate means of committing the same offense — an important assumption examined below — the prosecutor may permissibly charge “the use of a gun and an axe,” so long as the defendant has sufficient notice, consistent with the Sixth Amendment, of the charges he actually faces. See Turner v. United States,
Traditionally, there has been no bright-line rule distinguishing one circumstance from the other. See, e.g., id. at 835-38 (listing four factors to evaluate); cf. Blockburger v. United States,
Nonetheless, there will likely be circumstances involving divisible statutes in which the charging document does not demonstrate that the factfinder necessarily found all the elements of the generic crime. One possible circumstance, already described, is when the prosecutor charges “the use of a gun and an axe” — which, as described, is only permissible if: (a) the use of a gun subjects the defendant to the exact same possible sentence as the use of an axe; (b) the statute’s gun/axe division merely describes different means of committing one offense, rather than two separate offenses; and (c) the defendant is provided sufficient notice of the accusations against him. Another, more likely, possibility is when there is a permissible variance between the allegations in the charging document and the subsequent proof. See United States v. Hartz,
In particular, in federal court, Rule 11 polices the integrity of guilty pleas by requiring that the district court, “[bjefore entering judgment on a guilty plea, ... determine that there is a factual basis for the plea.” Fed.R.Crim.P. 11(b)(3). Courts interpreting Rule 11 have made clear that the essential elements of the crimes admitted must be addressed in a verified “factual basis.” United States v. Alber,
The record of the Rule 11 proceedings may enable a sentencing court to assure itself that the defendant was “actually required,” as a purely legal matter, to admit sufficient facts to support the elements of
The majority’s supposition that the trier of fact is never required, as a purely legal matter, to convict under any particular statutory alternative is perhaps most puzzling in light of the manner in which juries are typically instructed. Usually, trial judges instruct the jury on the elements of the crime, and “a failure to charge each of the elements may constitute cognizable error on appeal even where the defense failed to object.” 6 LaFave et al., supra, § 24.8(c). Judges are called upon to craft their instructions in light of the charges and the proof at trial. See United States v. Orozco-Acosta,
In sum, there are several procedural safeguards — rooted primarily in the Fifth and Sixth Amendments — that apply to charging documents, plea colloquies, and jury instructions. These safeguards can assist the sentencing judge in a later proceeding in determining, with regard to divisible statutes, whether the trier of fact in a prior proceeding “necessarily found,” or the defendant “necessarily admitted” — as a purely legal matter — all of the elements of the generic crime, without having to engage in the sort of factfinding that the majority permits (and which Taylor and Shepard prohibit). Moreover, these procedural safeguards demonstrate why the majority’s contention that limiting the modified categorical approach to divisible statutes adds nothing to the categorical approach is incorrect.
IV.
The short of the matter is this: The Supreme Court has made abundantly clear that the modified categorical approach’ is employed only to determine under which statutory phrase the defendant was convicted in a prior proceeding. Every circuit to address the issue now agrees. To hold otherwise, even if we could, would create a myriad of practical and constitutional problems, as well as problems of basic fairness to criminal defendants.
So why does the majority strain to conclude otherwise? The majority’s primary concern is that confining the modified categorical approach to divisible statutes “makes [whether] a defendant [is] subject to a sentence enhancement turn entirely on the location in which he committed the prior offense,” which the majority claims is “the precise outcome that Taylor sought to avoid in establishing a uniform definition of burglary.” Bybee op. at 940 n. 19.
This objection is both jurisprudentially inaccurate and practically wrong. First off, it takes Taylor's uniformity discussion out of context, ignoring its simultaneous, explicit limitation on the circumstances in which the categorical approach may be
Taylor invoked the uniformity concern to explain why it adopted a “uniform definition” of burglary “independent of the labels employed by the various States’ criminal codes.”
Still, Taylor self-consciously chose a definition of generic burglary that excludes certain states’ statutes (like California’s) from counting as a qualifying conviction. See id. It also squarely, and emphatically, rejected the notion that, when faced with a conviction that did not meet the generic definition of burglary, the sentencing court could nonetheless look to the defendant’s actual conduct to see if it “would fit the generic definition of burglary.” Id. at 601,
In subsequent cases, the Supreme Court has repeatedly refused to expand the modified categorical approach even when faced with the majority’s overweening concern— that it could lead to sentencing disparities based on the state in which a particular defendant was convicted. As the Court has explained, uniformity, while an important value, is not the only value at stake here. That is why Shepard rejected the Government’s argument “for a more inclusive standard of competent evidence,” which was based on “the virtue of a nationwide application of a federal statute unaffected by idiosyncrasies of record keeping in any particular State.”
Secondly, the lack of uniformity the majority decries assumes that the mismatch between state and federal law with which we are currently struggling — and with
States, too, are free to amend their criminal codes to better match the generic definitions contained in the federal recidivist statutes. If California, for example, is concerned that a conviction under its burglary statute will not qualify for a federal recidivist enhancement, it could remove certain offenses, like shoplifting, from its burglary statute.
Finally, federal officials can encourage states to alter their prosecutorial practices — for example, to encourage fewer Alford pleas, see North Carolina v. Alford,
Y.
The application of the majority’s theory to the facts of this case illustrate the theory’s flaws: Although Aguila-Montes pleaded guilty to “unlawfully entering] an inhabited dwelling,” neither Judge Bybee nor Judge Rawlinson endeavor to explain how the (non-elemental) fact that Aguila-Montes allegedly entered the dwelling “unlawfully,” in the generic sense, could ever be “necessary” to his conviction. See By-bee op. at 937 (“It is not enough that an indictment [from the prior conviction] merely allege a certain fact or that the defendant admit to a fact; the fact must be necessary to convicting that defendant.”).
I cannot join in the adventure sanctioned by the majority. I therefore concur only in the overruling of United States v. Rodriguez-Rodriguez,
But on my view of the overall limitations on use of the modified categorical approach, Rodriguez-Rodriguez was wrongly decided even aside from the categorical mismatch, simply because the allegation that the defendant entered the building “unlawfully,” in the generic sense, is not an element of the crime of conviction, either exclusively or in the alternative. When a California prosecutor charges a defendant with burglary and alleges that he entered the building in question “unlawfully,” that allegation can be read to mean one of two things: First, it could be simply a shorthand repetition of the allegations that the defendant entered the building with the intent to commit a felony therein. Second, it could be alleging the absence of an affirmative defense that would otherwise make the entry “lawful” (in the sense that the California courts use that word). See People v. Sherow,
I would hold, therefore, that Aguila-Montes’ burglary conviction cannot be used to enhance his sentence because the California burglary statute’s “entry” element does not require an unlawful entry, in the sense that term is used to define generic burglary — that is, an entry in which the premises are not open to the public and the person does not have a privilege or invitation to enter. See Bybee op. at 943-44. Accordingly, a jury is never “actually required” to find that a defendant’s entry was unlawful, Taylor,
CONCLUSION
The majority wanders well beyond the confines of the Supreme Court’s abundantly clear and narrow modification of the categorical approach and thereby subjects criminal defendants to enhanced punishment on the basis of impermissible and unreliable judicial factfinding. It does so
. "Elements” are those necessary and sufficient facts that, if proven (or admitted), support a conviction for a particular crime. See United States v. Beltran-Munguia,
. Like the majority, I use the term "divisible statute” as shorthand to refer to a statute that lists alternative ways that one or more elements can be established. Limiting the modified categorical approach to the "divisible statute” situation, as I would do, means that it may only be used to determine under which express statutory alternative the defendant was convicted.
. The majority, joined by Judge Rawlinson and her co-dissenters, suggests that NavcaroLopez precludes us from applying the modified categorical approach to broad-element statutes. See Bybee op. at 924-25; Rawlinson op. at 975. That’s wrong. See Navarro-Lopez,
. The 2007 case merely rejected a defendant's argument that in calculating his criminal his
The 2006 case, on the other hand, did use the modified categorical approach to determine that a particular conviction under Colorado Revised Statutes § 18-6-701 (for ''inducting], aid[ing], or encouraging] a child to violate any federal or state law, municipal or county ordinance, or court order commits contributing to the delinquency of a minor”) constituted the aggravated felony of sexual abuse of a minor. See Vargas v. Dep’t of Homeland Sec.,
. The majority acknowledges that ZunigaSoto adopted a “divisible-statute-only rule,” but argues that its reach is circumscribed. Bybee op. at 934 n. 15. But even if that is true, no one can contest that the Tenth Circuit applies a "divisible-statute-only rule” in circumstances where the majority would not.
. Subsequent panels of the Sixth Circuit have adhered to Bartee’s approach, maintaining that the modified categorical approach is only appropriate in the divisible statute situation and disavowing earlier Sixth Circuit cases indicating otherwise. See United States v. Young,
. It is not. Knapik v. Ashcroft,
.See, e.g., Lanferman v. Bd. of Immigration Appeals,
. See United States v. Palomino Garcia,
. The majority maintains that United States v. Fife,
. There is good reason to think that the District of Columbia Circuit would not adopt the "theory of the case” approach advocated by the majority. See, e.g., In re Sealed Case,
. The majority acknowledges that this is the rule in the First, Fourth, Fifth, and Eighth circuits. See United States v. Giggey (Giggey I),
. As in every modified categorical case that the Supreme Court has considered, the statute at issue in Taylor was divisible in the relevant respect: Missouri had a number of burglary statutes, each of which listed different categories of locations which, if entered, could support a burglary conviction. See
. State juries need not agree on non-element facts. See Schad v. Arizona,
. Justice Thomas concurred in all of Shepard except its discussion of Apprendi. He would have gone further, declaring that in light of Apprendi v. New Jersey,
. Aguila-Montes' sentence was increased under the U.S. Sentencing Guidelines on the basis of his prior conviction, but the applicable statutory maximum was not increased by the district court's fact-finding. If the majority had confined its discussion to the Guidelines, therefore, this case would not trigger any Sixth Amendment concern. See United States v. Booker,
. According to the Bureau of Justice Statistics, over 95 percent of criminal convictions obtained in United States district courts in 2005 (the most recent year for which statistics are available) were the result of guilty pleas. See Mark Motivans, Federal Justice Statistics, 2005, Bureau of Just. Stat. Bull. (U.S. Dep’t of Justice, Washington, D.C.), Sept. 2008, at 5, available at http://bjs.ojp.usdoj.gov/content/ pub/pdf/fjs05.pdf. Similarly, in 2006, 95 percent of convictions of state-court felony defendants in the seventy-five largest U.S. counties were by guilty plea. See Thomas H. Cohen & Tracey Kyckelhahn, Felony Defendants in Large Urban Counties, 2006, Bureau of Just. Stat. Bull. (U.S. Dep't of Justice, Washington, D.C.), May 2010, at 11, available at http://bjs. ojp.usdoj.gov/content/pub/pdi/fdluc06.pdf.
. This is not the only way in which the majority’s approach effectively serves as a one-way ratchet that always favors the government. The Supreme Court has expressly foreclosed the possibility that defendants could introduce evidence demonstrating that their particular convictions for crimes that are categorical matches for the generic crime did not fit the essential categorical elements— for example, that though most aggravated assaults involve violence, their particular conviction did not. See James,
. The only circumstance in which a defendant pleading guilty admits non-elemental facts is if he does so explicitly during the Rule 11 colloquy. See Forrester,
. Under the federal Sentencing Guidelines, defendants’ recommended sentences are lowered if they "accept responsibility” for their crimes. U.S.S.G. § 3E1.1; but see United States v. Green,
. Even an allegation that the defendant "used a gun and/or an axe” would likely be found duplicitous, see, e.g., People v. Bauman,
. It is this legal certainty that makes the following statement from the majority incorrect:
[T]he same reasons that motivate Judge Berzon to express confidence in the modified categorical approach in divisible statute cases suggest that we should have simi
Bybee op. at 935-36 n. 18. It is not that the conviction records are not "reliable” in the broad element or missing element statute— it’s that they aren’t useful, because they do not (and cannot) demonstrate that the factfinder was "actually required to find,” as a legal matter, the elements of the generic crime. Taylor,
. Application of the informal (or "constructive”) amendment doctrine varies a great deal amongst jurisdictions, but courts are generally consistent in finding a variance when the discrepancy between the indictment and the proof effects a shift from one statutory alternative to another — that is, in the divisible statute situation. For example, in Gray v. Raines,
. If neither the charging document nor the jury instructions/plea colloquy establish the statutory alternative under which the defendant was convicted, the inquiry under the modified categorical approach is, as Shepard and subsequent cases instruct, at an end. See
Where, for example, an element of robbery is force or the threat of force, some jurors might conclude that the defendant used a knife to create the threat; others might conclude he used a gun. But that disagreement — a disagreement about means — would not matter as long as all 12 jurors unanimously concluded that the Government had proved the necessary related element, namely that the defendant had threatened force.
. Many states apply the Blockburger test to measure whether the prosecution’s proof or the jury instructions create impermissible variance from the charging document. See, e.g., Bell v. State,
. The majority’s assertion that the states have no incentive to amend their statutes to better match federal recidivist statutes is unconvincing. See Bybee op. at 940 n. 20. Congress and state legislatures have concentric constituencies; insofar as Congress has decided that longer sentences for repeat offenders is warranted, one would expect that at least a substantial number of state legislatures would agree.
. Judge Rawlinson professes to be “puzzled” by the assertion that "unlawful entry is not an element of burglary under California law,” stating that "California law is expressly to the contrary.” Rawlinson op. at 982. But her contention is just a play on words. When used in the generic sense, an "unlawful” entry is one that it is trespassory. In the California burglary context, however, "unlawful” just means that the defendant entered with a "larcenous or felonious intent.” See generally B.E. Witkin, 2 Within Cal.Crim. Law Crimes— Property § 123 (3d ed.2010). Of course, it’s the meaning, not the label, that matters. See United States v. Bowen,
. California Penal Code § 459 provides:
Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, barn, stable, outhouse or other building, tent, vessel, as defined in Section 21 of the Harbors and Navigation Code, floating home, as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, railroad car, locked or sealed cargo container, whether or not mounted on a vehicle, trailer coach, as defined in Section 635 of the Vehicle Code, any house car, as defined in Section 362 of the Vehicle Code, inhabited camper, as defined in Section 243 of the Vehicle Code, vehicle as defined by the Vehicle Code, when the doors are locked, aircraft as defined by Section 21012 of the Public Utilities Code, or mine or any underground portion thereof, with intent to commit grand or petit larceny or any felony is guilty of burglary. As used in this chapter, 'inhabited' means currently being used for dwelling purposes, whether occupied or not. A house, trailer, vessel designed for habitation, or portion of a building is currently being used for dwelling purposes if, at the time of the burglary, it was not occupied solely because a natural or other disaster caused the occupants to leave the premises.
Concurrence Opinion
I agree with and join Parts I-IV of the majority opinion explaining why we should reverse our prior ruling in Navarro-Lopez v. Gonzales,
Although the majority opinion overrules Navarro-Lopez’s rule regarding our inability to apply the modified categorical approach when a state statute is missing an element of a generic offense, it effectively re-imposes the same missing element rule in applying the modified categorical approach to the facts of this case. According to the en banc opinion, use of the modified categorical approach is precluded if applicable state law contains nuances that differ from the generic definition of the crime. However, Supreme Court precedent does not mandate or counsel such a restrictive approach.
In Taylor v. United States,
These same concerns mirror California’s rationale for treating burglary as a particularly serious felony. “The proscription against residential burglary is designed not so much to deter trespass and the intended crime but to prevent risk of physical harm to others that arises upon the unauthorized entry itself.” People v. Johnson,
Against the backdrop of the Supreme Court’s articulated intent to uphold enhanced sentences for those convicted of the crime of residential burglary, we should proceed with caution before completely excluding a burglary conviction from that equation. In Taylor, the Supreme Court reminded us that:
Although the exact formulations vary, the generic, contemporary meaning of burglary contains at least the following elements: an unlawful or unprivileged entry into, or remaining in, a building orother structure, with intent to commit a crime.
Taylor,
This usage approximates that adopted by the drafters of the Model Penal Code: A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with purpose to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.
Id. at 598 n. 8,
a person has been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime, regardless of its exact definition or label, having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.
Id. at 599,
It is undisputed that the California burglary statute is broader than the generic definition of burglary.
For example, in a State whose burglary statutes include entry of an automobile as well as a building, if the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then the Government should be allowed to use the conviction for enhancement.
Id. at 602,
In Shepard v. United States,
Despite the pragmatic approach described and approved in Taylor and Shepard, the majority opinion adopts an unyielding analysis premised on nuances of California law. Specifically, the majority opinion takes the view that “it is not so much that California burglary law lacks the requirement of unlawful or unprivileged entry; it simply contains a nuanced definition of ‘unlawful or unprivileged’ different from the common law definition.” Majority Opinion, p. 942 (emphasis in the original). The majority’s view simply ignores the fact that California’s burglary statute “retains two important aspects of common law burglary: the entry must invade a possessory right in the building and it must be committed by one who has no right to be in the building.” People v. Gill,
Notwithstanding that California’s burglary statute expressly retains the basic elements of generic burglary, the en banc opinion relies on nuances in California case authority to support its premise that the charges against Aguila “tell[ ] us nothing about whether [Aguila’s] entry was ‘unlawful or unprivileged’ in the generic sense.” Majority Opinion, p. 945-46. However, the nuances identified in the majority opinion are associated with the contours of the potential defenses available to defendants who are licensed or privileged to enter a building, rather than with the elements of a burglary offense. See, e.g., Gill,
California is not alone in treating a licensed or privileged entry as a defense to burglary rather than as an element of the crime. For example, in Pennsylvania v. Majeed,
The Crimes Code provides: A person is guilty of burglary if he enters a buildingor occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter. Pursuant to this section, a person who is licensed or privileged to enter does not commit burglary although he or she intends to commit a crime within the premises. Although the statute does not define ‘licensed or privileged to enter,’ the statutory defense to burglary does not depend on ownership.
Id. at 52,
Until today, we have not factored in varying defenses when performing the modified categorical analysis. See, e.g., United States v. Velasco-Medina,
The Model Penal Code Commentary to Section 221.1 contains the following explication:
At least this much of the [common law] concept of ‘breaking’ should be retained in order to exclude from burglary situations such as the following: a servant enters his employer’s house as he normally is privileged to do, intending on the occasion to steal some silver; a shoplifter enters a department store during business hours to steal from the counters; a litigant enters the courthouse with intent to commit perjury; a fireman called on to put out a fire resolves, as he breaks down the door of the burning house, to misappropriate some of the householder’s belongings. Such situations involve no surreptitious intrusion, no element of aggravation of the crime that the actor proposes to carry out ...
Model Penal Code Commentaries, The American Law Institute, 69 (1980).
Athough California courts have permitted a defense to burglary based on a privileged or licensed entry, as the en banc opinion acknowledges, the California statute does not lack the unlawful or unprivi
In contrast to the majority’s approach, the Supreme Court has articulated that Taylor “drew a pragmatic conclusion about the best way to identify generic convictions ...” Shepard,
Indeed, the Court’s opinion in Taylor eschews the majority’s approach. It states that the elements of a burglary are “an unlawful or unprivileged entry into., or remaining in, a building or other structure with intent to commit a crime.” Taylor,
Until today, we have consistently followed the modified categorical analysis articulated in Taylor. In United States v. Rodriguez-Rodriguez,
In Aguilar-Turcios, the author of the majority opinion forcefully and convincingly eschewed the “nuanced” approach he now advocates:
The modified categorical analysis is concerned with determining whether the petitioner’s conviction fits the generieally defined crime, not whether the elements fit the defined crime.... Consider an example that has arisen repeatedly in our own jurisprudence. Suppose a defendant is charged with burglary, but the crime of conviction does not require one of the elements of the generic burglary crime: an unlawful entry. If the indictment, plea colloquy, or (in the event of a trial) jury instructions all make it clear that the defendant could not have been convicted of burglary unless the trier of fact concluded that the defendant entered unlawfully, the fact-finder still necessarily found the requisite elements of the generic crime, and Taylor and Shepard are satisfied.... Here, the Court acknowledged that some crimes of conviction would lack elements of their generic counterparts.The Court held, nonetheless, that an offense constitutes the generic crime if the statutory definition substantially corresponds to the generic crime, or the charging paper and jury instructions actually required the jury to find all the elements of the generic crime----The approach in Li’s 4 concurrence is not so flexible. If a conviction is missing an element of the generic crime, a court can never look beyond the terms of the statute-even if the defendant specifically acknowledges that element in his plea. This approach completely removes certain crimes from consideration in the immigration context. For example, in California, Idaho, and Nevada, burglary does not contain an unlawful entry requirement. Regardless of the contents of the indictment, jury instructions, plea colloquy, or stipulated facts, it is now impossible to remove an alien based on a prior burglary conviction in these states____Although an alien can never be removed for a burglary that takes place in California, Idaho, or Nevada, aliens convicted of burglary in Alaska, Arizona, Hawaii, Oregon, Montana, and Washington, based on the same indictment, jury instructions, plea colloquy, or stipulated facts, face the possibility of removal because the statutes in these states contain an unlawful entry requirement. This is precisely the odd result that the Supreme Court sought to avoid in Taylor.
By rejecting the approach approved by the Supreme Court in favor of an absolute preclusion based on nuances in state law defenses, the majority opinion produces the same “odd results” decried by the Supreme Court. Taylor,
Indeed, in Sherow the California Court of Appeal did not exclude unlawful entry as an element of burglary. Rather, the court addressed whether the defendant’s lack of consent was an affirmative defense. See Sherow,
According to statute, a person is guilty of burglary if he or she enters a building or other structure listed in the statute with intent to commit grand or petit larceny or any felony. Based on common law precedent, our Supreme Court has clarified the statutory element of entry by explaining that the crime of burglary involves entry that invades a possessory right in a building, and must be committed by someone who has no right to be in the building.
Id. at 263 (citations and internal quotation marks omitted) (emphasis added). “On the premise that the type of entry involved in burglary is the invasion of a possessory right by someone who has no right to be in the building for illegal purposes, case law has developed the consent defense to burglary.” Id. (citations omitted). The California Court of Appeal opined that:
the defense arises out of the principle that the element of entry referred to in the burglary statute must invade a possessory right in a building and must be committed by a person who has no right to be in the building for the purpose of committing illegal acts. Indeed, as our Supreme Court has observed, lack of consent is material to burglary because it is material to the element of entry[.]
Id. (citation and alterations omitted) (emphasis in the original). ■
As explained in these cases, it is lack of consent that is not an element of burglary under California law. Because lack of consent is an affirmative defense rather than an element of the offense, the convoluted analysis regarding California’s purportedly nuanced definition of burglary is superfluous. After all, Aguila-Montes’ guilty plea reflected that he was not asserting an affirmative defense premised on any form of consent, which was his burden to prove. See id. at 264 (“The consent defense therefore goes to the heart of a defendant’s guilt or innocence of the crime of burglary. Accordingly, a defendant has the burden of proof to establish a reasonable doubt as to the facts underlying the defense.”). Aguila-Montes waived all defenses, including the affirmative defense of consent, and pled guilty to the elements of generic burglary, period.
Sadly, a survey of California cases reveals the substantial impact the majority opinion will have, as California law is replete with examples of Informations limited to allegations similar to those in this case. See, e.g., People v. Birks,
In sum, importing Navarro-Lopez’s rejected missing element rule into the modified categorical analysis, as the majority opinion would essentially do, ignores the Supreme Court’s approach to the modified categorical approach as articulated in Taylor, and completely thwarts the intent of Congress that burglary be included as a predicate offense. See Taylor,
. We note that the charge of residential burglary does not implicate the Model Penal Code’s hypotheticals concerning entiy into a business, shoplifting, or non-larceny offenses.
. The majority essentially concedes this point. See Majority Opinion, pp. 941 n. 22. It then seeks to blunt that concession by asserting that the words "unlawful or unprivileged” modify the "remaining in” language in Taylor,
. Li v. Ashcroft,
. We note that the best authority Judge Berzon can summon for her argument is a "general” citation to a treatise. See id. In any event, review of the treatise section cited "generally” reinforces the dichotomy between the elements of burglary and potential affirmative defenses to those elements. See B.E. Witkin, 2 Within Cal.Crim. Law Crimes — Property § 123 (3ded.2010).
. Although these California cases contain a multitude of additional facts that may or may not lend themselves to application of the modified categorical approach, they exemplify the consistent language utilized in California In-formations to charge burglary. Indeed, there is nothing anomalous about California’s practice, as the purpose of a charging document is to inform the defendant of the crimes he is alleged to have committed, not to anticipate and list any potential defenses. See People v. Arevalo-Iraheta,