Descamps v. United States,
570 U.S. ___ (2013)

Annotate this Case



No. 11–9540



on writ of certiorari to the united states court of appeals for the ninth circuit

[June 20, 2013]

     Justice Kennedy, concurring.

     As the Court explains, this case concerns earlier convictions under state statutes classified by cases in the Courts of Appeals, and now in today’s opinion for the Court, as “indivisible.” See, e.g., United States v. Aguila-Montes de Oca, 655 F. 3d 915 (CA9 2011) (en banc) (per curiam); United States v. Beardsley, 691 F. 3d 252 (CA2 2012). This category is used to describe a class of criminal statutes that are drafted with a single set of elements that are broader than those of the generic definition of the corresponding crime enumerated in the Armed Career Criminal Act (ACCA), 18 U. S. C. §924(e)(2)(B)(ii).

     Just one of the substantial concerns that the Court is correct to consider is that, in the regular course of the criminal process, convictions may be entered, often by guilty pleas, when either the attorney or the client, or both, have given no consideration to possible later consequences under ACCA. See ante, at 15–16. As a result, certain facts in the documents approved for judicial examination in Shepard v. United States, 544 U. S. 13 (2005) , may go uncontested because they do not alter the sentencing consequences of the crime, even though their effect is to require a later enhancement under ACCA. This significant risk of failing to consider the full consequences of the plea and conviction is troubling.

     Balanced against this, as Justice Alito indicates, is that the dichotomy between divisible and indivisible state criminal statutes is not all that clear. See post, at 12–13 (dissenting opinion). The effect of today’s decision, more-over, is that an unspecified number, but likely a large number, of state criminal statutes that are indivisible but that often do reach serious crimes otherwise subject to ACCA’s provisions, now must be amended by state legislatures. Otherwise, they will not meet federal requirements even though they would have come within ACCA’s terms had the state statute been drafted in a different way. This is an intrusive demand on the States.

     On due consideration, the concerns well expressed by the Court persuade me that it reaches the correct result. The disruption to the federal policy underlying ACCA, nevertheless, is troubling and substantial. See post, at 13–14 (Alito, J., dissenting). If Congress wishes to pursue its policy in a proper and efficient way without mandat- ing uniformity among the States with respect to their criminal statutes for scores of serious offenses, and without requiring the amendment of any number of federal criminal statutes as well, Congress should act at once. It may then determine whether ACCA’s design and structure should be modified to meet the concerns expressed both by the Court and the dissenting opinion.

     With these observations, I join the opinion of the Court.

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