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 Thomas, concurring in the judgment.

     Petitioner Matthew Descamps was convicted of being a felon in possession of a firearm, 18 U. S. C. §922(g), which subjected him to a maximum sentence of 10 years’ imprisonment. The District Court, however, applied an Armed Career Criminal Act (ACCA) enhancement with a mandatory minimum of 15 years based in part on Descamps’ earlier California conviction for burglary. See §924(e). The California law says that any “person who enters” any of a number of structures “with intent to commit grand or petit larceny or any felony is guilty of burglary.” California Penal Code Ann. §459 (West 2010). That law does not, on its face, require the jury to determine whether the entry itself was unlawful, a required element of the so-called “generic” offense of burglary that qualifies as an ACCA predicate. See Taylor v. United States, 495 U. S. 575, 599 (1990) . The majority holds that a court may not review the underlying facts of Descamps’ state crime to determine whether he entered the building unlawfully and, thus, that his burglary conviction may not be used as a predicate offense under ACCA. While I agree with the Court’s conclusion, I disagree with its reasoning.

     I have previously explained that ACCA runs afoul of Apprendi v. New Jersey, 530 U. S. 466 (2000) , because it allows the judge to “mak[e] a finding that raises [a defendant’s] sentence beyond the sentence that could have lawfully been imposed by reference to facts found by the jury or admitted by the defendant.” James v. United States, 550 U. S. 192, 231 (2007) (dissenting opinion) (internal quotation marks omitted). Under the logic of Apprendi, a court may not find facts about a prior conviction when such findings increase the statutory maximum. This is so whether a court is determining whether a prior conviction was entered, see 530 U. S., at 520–521 (Thomas, J., concurring), or attempting to discern what facts were necessary to a prior conviction. See James, su- pra, at 231–232 (Thomas, J., dissenting). In either case, the court is inappropriately finding a fact that must be submitted to the jury because it “increases the penalty for a crime beyond the prescribed statutory maximum.” Apprendi, supra, at 490.

     In light of the foregoing, it does not matter whether a statute is “divisible” or “indivisible,” see ante, at 1–2, and courts should not have to struggle with the contours of the so-called “modified categorical” approach. Ibid. The only reason Descamps’ ACCA enhancement is before us is “because this Court has not yet reconsidered Almendarez-Torres v. United States, 523 U. S. 224 (1998) , which draws an exception to the Apprendi line of cases for judicial factfinding that concerns a defendant’s prior convictions.” Shepard v. United States, 544 U. S. 13, 27 (2005) (Thomas, J., concurring in part and concurring in judgment). Regardless of the framework adopted, judicial factfinding increases the statutory maximum in violation of the Sixth Amendment. However, because today’s opinion at least limits the situations in which courts make factual determinations about prior convictions, I concur in the judgment.

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