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SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9540
_________________
MATTHEW ROBERT DESCAMPS, PETITIONER v. UNITED
STATES
on writ of certiorari to the united states
court of appeals for the ninth circuit
[June 20, 2013]
Justice Kagan
delivered the opinion of the Court.
The Armed Career
Criminal Act (ACCA or Act), 18 U. S. C. §924(e),
increases the sentences of certain federal defendants who have
three prior convictions “for a violent felony,”
including “burglary, arson, or extortion.” To determine
whether a past conviction is for one of those crimes, courts use
what has become known as the “categorical approach”:
They compare the elements of the statute forming the basis of the
defendant’s conviction with the elements of the
“generic” crime—i.e., the offense as commonly
understood. The prior conviction qualifies as an ACCA predicate
only if the statute’s elements are the same as, or narrower
than, those of the generic offense.
We have previously
approved a variant of this method—labeled (not very
inventively) the “modified categorical
approach”—when a prior conviction is for violating a
so-called “divisible statute.” That kind of statute
sets out one or more elements of the offense in the
alternative—for example, stating that burglary involves entry
into a building or an automobile. If one alternative (say, a
building) matches an element in the generic offense, but the other
(say, an automobile) does not, the modified categorical approach
permits sentencing courts to consult a limited class of documents,
such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant’s prior
conviction. The court can then do what the categorical approach
demands: compare the elements of the crime of conviction (including
the alternative element used in the case) with the elements of the
generic crime.
This case presents the
question whether sentencing courts may also consult those
additional documents when a defendant was convicted under an
“indivisible” statute—i.e., one not containing
alternative elements—that criminalizes a broader swath of
conduct than the relevant generic offense. That would enable a
court to decide, based on information about a case’s
underlying facts, that the defendant’s prior conviction
qualifies as an ACCA predicate even though the elements of the
crime fail to satisfy our categorical test. Because that result
would contravene our prior decisions and the principles underlying
them, we hold that sentencing courts may not apply the modified
categorical approach when the crime of which the defendant was
convicted has a single, indivisible set of elements.
I
Petitioner Michael
Descamps was convicted of being a felon in possession of a firearm,
in violation of 18 U. S. C. §922(g). That unadorned
offense carries a maximum penalty of 10 years in prison. The
Government, however, sought an enhanced sentence under ACCA, based
on Descamps’ prior state convictions for burglary, robbery,
and felony harassment.
ACCA prescribes a
mandatory minimum sentence of 15 years for a person who violates
§922(g) and “has three previous convictions
. . . for a violent felony or a serious drug
offense.” §924(e)(1). The Act defines a “violent
felony” to mean any felony, whether state or federal, that
“has as an element the use, attempted use, or threatened use
of physical force against the person of another,” or that
“is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
§924(e)(2)(B).
Descamps argued that
his prior burglary conviction could not count as an ACCA predicate
offense under our categorical approach. He had pleaded guilty to
violating California Penal Code Ann. §459 (West 2010), which
provides that a “person who enters” certain locations
“with intent to commit grand or petit larceny or any felony
is guilty of burglary.” That statute does not require the
entry to have been unlawful in the way most burglary laws do.
Whereas burglary statutes generally demand breaking and entering or
similar conduct, California’s does not: It covers, for
example, a shoplifter who enters a store, like any customer, during
normal business hours. See People v. Barry, 94 Cal. 481,
483–484, 29 P. 1026, 1026–1027 (1892). In sweeping so
widely, the state law goes beyond the normal, “generic”
definition of burglary. According to Descamps, that asymmetry of
offense elements precluded his conviction under §459 from
serving as an ACCA predicate, whether or not his own burglary
involved an unlawful entry that could have satisfied the
requirements of the generic crime.
The District Court
disagreed. According to the court, our modified categorical
approach permitted it to examine certain documents, including the
record of the plea colloquy, to discover whether Descamps had
“admitted the elements of a generic burglary” when
entering his plea. App. 50a. And that transcript, the court ruled,
showed that Descamps had done so. At the plea hearing, the
prosecutor proffered that the crime
“ ‘ involve[d] the breaking and entering of a
grocery store,’ ” and Descamps failed to object to
that statement. Ibid. The plea proceed- ings, the District Court
thought, thus established that Descamps’ prior conviction
qualified as a generic burglary (and so as a “violent
felony”) under ACCA. Applying the requisite penalty
enhancement, the court sentenced Descamps to 262 months in
prison—more than twice the term he would otherwise have
received.
The Court of Appeals
for the Ninth Circuit affirmed, relying on its recently issued
decision in United States v. Aguila-Montes de Oca, 655 F. 3d 915
(2011) (en banc) (per curiam). There, a divided en banc court took
much the same view of the modified categorical approach as had the
District Court in this case. The en banc court held that when a
sentencing court considers a conviction under §459—or
any other statute that is “categorically broader than the
generic offense”—the court may scrutinize certain
documents to determine the factual basis of the conviction. See
id., at 940. Applying that approach, the Court of Appeals here
found that Descamps’ plea, as revealed in the colloquy,
“rested on facts that satisfy the elements of the generic
definition of burglary.” 466 Fed. Appx. 563, 565 (2012).
We granted certiorari,
567 U. S. ___ (2012), to resolve a Circuit split on whether
the modified categorical approach applies to statutes like
§459 that contain a single, “indivisible” set of
elements sweeping more broadly than the corresponding generic
offense. [
1 ] We hold that it
does not, and so reverse.
II
Our caselaw
explaining the categorical approach and its “modified”
counterpart all but resolves this case. In those decisions, as
shown below, the modified approach serves a limited function: It
helps effectuate the categorical analysis when a divisible statute,
listing potential offense elements in the alternative, renders
opaque which element played a part in the defendant’s
conviction. So understood, the modified approach cannot convert
Descamps’ conviction under §459 into an ACCA predicate,
because that state law defines burglary not alternatively, but only
more broadly than the generic offense.
We begin with Taylor v.
United States, 495 U. S. 575 (1990) , which established the
rule for determining when a defendant’s prior conviction
counts as one of ACCA’s enumerated predicate offenses (e.g.,
burglary). Taylor adopted a “formal categorical
approach”: Sentencing courts may “look only to the
statutory definitions”—i.e., the elements—of a
defendant’s prior offenses, and not “to the particular
facts underlying those convictions.” Id., at 600. If the
relevant statute has the same elements as the “generic”
ACCA crime, then the prior conviction can serve as an ACCA
predicate; so too if the statute defines the crime more narrowly,
because anyone convicted under that law is “necessarily
. . . guilty of all the [generic crime’s]
elements.” Id., at 599. But if the statute sweeps more
broadly than the generic crime, a conviction under that law cannot
count as an ACCA predicate, even if the defendant actually
committed the offense in its generic form. The key, we emphasized,
is elements, not facts. So, for example, we held that a defendant
can receive an ACCA enhancement for burglary only if he was
convicted of a crime having “the basic elements” of
generic burglary—i.e., “unlawful or unprivileged entry
into, or remaining in, a building or structure, with intent to
commit a crime.” Ibid. And indeed, we indicated that the very
statute at issue here, §459, does not fit that bill because
“California defines ‘burglary’ so broadly as to
include shoplifting.” Id., at 591.
At the same time,
Taylor recognized a “narrow range of cases” in which
sentencing courts—applying what we would later dub the
“modified categorical approach”—may look beyond
the statutory elements to “the charging paper and jury
instructions” used in a case. Id., at 602. To explain when
courts should resort to that approach, we hypothesized a statute
with alternative elements—more particularly, a burglary
statute (otherwise conforming to the generic crime) that prohibits
“entry of an automobile as well as a building.” Ibid.
One of those alternatives (a building) corresponds to an element in
generic burglary, whereas the other (an automobile) does not. In a
typical case brought under the statute, the prosecutor charges one
of those two alternatives, and the judge instructs the jury
accordingly. So if the case involves entry into a building, the
jury is “actually required to find all the elements of
generic burglary,” as the categorical approach demands. Ibid.
But the statute alone does not disclose whether that has occurred.
Because the statute is “divisible”—i.e.,
comprises multiple, alternative versions of the crime—a later
sentencing court cannot tell, without reviewing something more, if
the defendant’s conviction was for the generic (building) or
non-generic (automobile) form of burglary. Hence Taylor permitted
sentencing courts, as a tool for implementing the categorical
approach, to examine a limited class of documents to determine
which of a statute’s alternative elements formed the basis of
the defendant’s prior conviction.
In Shepard v. United
States, 544 U. S. 13 (2005) , the hypothetical we posited in
Taylor became real: We confronted a Massachusetts burglary statute
covering entries into “boats and cars” as well as
buildings. 544 U. S., at 17. The defendant there pleaded
guilty to violating the statute, and we first confirmed that
Taylor’s categorical approach applies not just to jury
verdicts, but also to plea agreements. That meant, we held, that a
conviction based on a guilty plea can qualify as an ACCA predicate
only if the defendant “necessarily admitted [the] elements of
the generic offense.” Id., at 26. But as we had anticipated
in Taylor, the divisible nature of the Massachusetts burglary
statute confounded that inquiry: No one could know, just from
looking at the statute, which version of the offense Shepard was
convicted of. Accordingly, we again authorized sentencing courts to
scrutinize a restricted set of materials—here, “the
terms of a plea agreement or transcript of colloquy between judge
and defendant”—to determine if the defendant had
pleaded guilty to entering a building or, alternatively, a car or
boat. Ibid. Yet we again underscored the narrow scope of that
review: It was not to determine “what the defendant and state
judge must have understood as the factual basis of the prior
plea,” but only to assess whether the plea was to the version
of the crime in the Massachusetts statute (burglary of a building)
corresponding to the generic offense. Id., at 25–26
(plurality opinion).
Two more recent
decisions have further emphasized the elements-based
rationale—applicable only to divisible statutes—for
examining documents like an indictment or plea agreement. In
Nijhawan v. Holder, 557 U. S. 29 (2009) , we discussed another
Massachusetts statute, this one prohibiting
“ ‘ Breaking and Entering at
Night’ ” in any of four alternative places: a
“building, ship, vessel, or vehicle.” Id., at 35. We
recognized that when a statute so “refer[s] to several
different crimes,” not all of which qualify as an ACCA
predicate, a court must determine which crime formed the basis of
the defendant’s conviction. Ibid. That is why, we explained,
Taylor and Shepard developed the modified categorical approach. By
reviewing the extra-statutory materials approved in those cases,
courts could discover “which statutory phrase,”
contained within a statute listing “several different”
crimes, “covered a prior conviction.” 557 U. S.,
at 41. And a year later, we repeated that understanding of when and
why courts can resort to those documents: “[T]he
‘modified categorical approach’ that we have approved
permits a court to determine which statutory phrase was the basis
for the conviction.” Johnson v. United States, 559 U. S.
133, 144 (2010) (citation omitted).
Applied in that
way—which is the only way we have ever allowed—the
modified approach merely helps im- plement the categorical approach
when a defendant was convicted of violating a divisible statute.
The modified approach thus acts not as an exception, but instead as
a tool. It retains the categorical approach’s central
feature: a focus on the elements, rather than the facts, of a
crime. And it preserves the categorical approach’s basic
method: comparing those elements with the generic offense’s.
All the modified approach adds is a mechanism for making that
comparison when a statute lists multiple, alternative elements, and
so effectively creates “several different . . .
crimes.” Nijhawan, 557 U. S., at 41. If at least one,
but not all of those crimes matches the generic version, a court
needs a way to find out which the defendant was convicted of. That
is the job, as we have always understood it, of the modified
approach: to identify, from among several alternatives, the crime
of conviction so that the court can compare it to the generic
offense. [
2 ]
The modified approach
thus has no role to play in this case. The dispute here does not
concern any list of alternative elements. Rather, it involves a
simple discrepancy between generic burglary and the crime
established in §459. The former requires an unlawful entry
along the lines of breaking and entering. See 3 W. LaFave,
Substantive Criminal Law §21.1(a) (2d ed. 2003) (hereinafter
LaFave). The latter does not, and indeed covers simple shoplifting,
as even the Government acknowledges. See Brief for United States
38; Barry, 94 Cal., at 483–484, 29 P., at 1026–1027. In
Taylor’s words, then, §459 “define[s] burglary
more broadly” than the generic offense. 495 U. S., at
599. And because that is true—because California, to get a
conviction, need not prove that Descamps broke and entered—a
§459 violation cannot serve as an ACCA predicate. Whether
Descamps did break and enter makes no difference. And likewise,
whether he ever admitted to breaking and entering is irrelevant.
Our decisions authorize review of the plea colloquy or other
approved extra-statutory documents only when a statute defines
burglary not (as here) overbroadly, but instead alternatively, with
one statutory phrase corresponding to the generic crime and another
not. In that circumstance, a court may look to the additional
documents to determine which of the statutory offenses (generic or
non-generic) formed the basis of the defendant’s conviction.
But here no uncertainty of that kind exists, and so the categorical
approach needs no help from its modified partner. We know
Descamps’ crime of conviction, and it does not correspond to
the relevant generic offense. Under our prior decisions, the
inquiry is over.
III
The Court of Appeals
took a different view. Dismissing everything we have said on the
subject as “lack[ing] conclusive weight,” the Ninth
Circuit held in Aguila-Montes that the modified categorical
approach could turn a conviction under any statute into an ACCA
predicate offense. 655 F. 3d, at 931. The statute, like
§459, could contain a single, indivisible set of elements
covering far more conduct than the generic crime—and still, a
sentencing court could “conside[r] to some degree the factual
basis for the defendant’s conviction” or, otherwise
stated, “the particular acts the defendant committed.”
Id., at 935–936. More specifically, the court could look to
reliable materials (the charging document, jury instructions, plea
colloquy, and so forth) to determine “what facts” can
“confident[ly]” be thought to underlie the
defendant’s conviction in light of the “prosecutorial
theory of the case” and the “facts put forward by the
government.” Id., at 936–937. It makes no difference,
in the Ninth Circuit’s view, whether “specific words in
the statute” of conviction “ ‘ actually
required’ ” the jury (or judge accepting a plea)
“to find a particular generic element.” Id., at 936
(quoting Taylor, 495 U. S., at 602; internal quotation marks
omitted). [
3 ]
That
approach—which an objecting judge aptly called
“modified factual,” 655 F. 3d, at 948 (Berzon, J.,
concurring in judgment)—turns an elements-based inquiry into
an evidence-based one. It asks not whether “statutory
definitions” necessarily require an adjudicator to find the
generic offense, but instead whether the prosecutor’s case
realistically led the adjudicator to make that determi- nation. And
it makes examination of extra-statutory documents not a tool used
in a “narrow range of cases” to identify the relevant
element from a statute with multiple alternatives, but rather a
device employed in every case to evaluate the facts that the judge
or jury found. By this point, it should be clear that the Ninth
Circuit’s new way of identifying ACCA predicates has no roots
in our precedents. But more: Aguila-Montes subverts those
decisions, conflicting with each of the rationales supporting the
categorical approach and threatening to undo all its benefits.
A
This Court offered
three grounds for establishing our elements-centric, “formal
categorical approach.” Taylor, 495 U. S., at 600. First,
it comports with ACCA’s text and history. Second, it avoids
the Sixth Amendment concerns that would arise from sentencing
courts’ making findings of fact that properly belong to
juries. And third, it averts “the practical difficulties and
potential unfairness of a factual approach.” Id., at 601.
When assessed in light of those three reasons, the Ninth
Circuit’s ruling strikes out swinging.
Start with the
statutory text and history. As we have long recognized, ACCA
increases the sentence of a defendant who has three “previous
convictions” for a violent felony—not a defendant who
has thrice committed such a crime. 18 U. S. C.
§924(e)(1); see Taylor, 495 U. S., at 600. That language
shows, as Taylor explained, that “Congress intended the
sentencing court to look only to the fact that the defendant had
been convicted of crimes falling within certain categories, and not
to the facts underlying the prior convictions.” Ibid.; see
Shepard, 544 U. S., at 19. If Congress had wanted to increase
a sentence based on the facts of a prior offense, it presumably
would have said so; other statutes, in other contexts, speak in
just that way. See Nijhawan, 557 U. S., at 36 (construing an
immigration statute as requiring a
“ ‘circumstance-specific,’ not a
‘categorical,’ ” approach). But in ACCA,
Taylor found, Congress made a deliberate decision to treat every
conviction of a crime in the same manner: During the lengthy debate
preceding the statute’s enactment, “no one suggested
that a particular crime might sometimes count towards enhancement
and sometimes not, depending on the facts of the case.” 495
U. S., at 601. Congress instead meant ACCA to function as an
on-off switch, directing that a prior crime would qualify as a
predicate offense in all cases or in none.
The Ninth
Circuit’s approach runs headlong into that congressional
choice. Instead of reviewing documents like an indictment or plea
colloquy only to determine “which statutory phrase was the
basis for the conviction,” the Ninth Circuit looks to those
materials to discover what the defendant actually did. Johnson, 559
U. S., at 144. This case demonstrates the point. Descamps was
not convicted of generic burglary, because (as the Government
agrees) §459 does not contain that crime’s required
unlawful-entry element. See Brief for United States 38,
43–44. At most, the colloquy showed that Descamps committed
generic burglary, and so hypothetically could have been convicted
under a law criminalizing that conduct. But that is just what we
said, in Taylor and elsewhere, is not enough. See 495 U. S.,
at 600; Carachuri-Rosendo v. Holder, 560 U. S. ___, ___ (2010)
(slip op., at 11) (rejecting such a
“ ‘ hypothetical approach’ ”
given a similar statute’s directive to “look to the
conviction itself,” rather than “to what might have or
could have been charged”). And the necessary result of the
Ninth Circuit’s method is exactly the differential treatment
we thought Congress, in enacting ACCA, took care to prevent. In the
two years since Aguila-Montes, the Ninth Circuit has treated some,
but not other, convictions under §459 as ACCA predicates,
based on minor variations in the cases’ plea documents.
Compare, e.g., 466 Fed. Appx., at 565 (Descamps’ §459
conviction counts as generic burglary), with 655 F. 3d, at 946
(Aguila-Montes’ does not).
Similarly, consider
(though Aguila-Montes did not) the categorical approach’s
Sixth Amendment underpinnings. We have held that “[o]ther
than the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.”
Apprendi v. New Jersey, 530 U. S. 466, 490 (2000) . Under
ACCA, the court’s finding of a predicate offense indisputably
increases the maximum penalty. Accordingly, that finding would (at
the least) raise serious Sixth Amendment concerns if it went beyond
merely identifying a prior conviction. Those concerns, we
recognized in Shepard, counsel against allowing a sentencing court
to “make a disputed” determination “about what
the defendant and state judge must have understood as the factual
basis of the prior plea,” or what the jury in a prior trial
must have accepted as the theory of the crime. 544 U. S., at
25 (plurality opinion); see id., at 28 (Thomas, J., concurring in
part and concurring in judgment) (stating that such a finding would
“giv[e] rise to constitutional error, not doubt”).
Hence our insistence on the categorical approach.
Yet again, the Ninth
Circuit’s ruling flouts our reasoning—here, by
extending judicial factfinding beyond the recog- nition of a prior
conviction. Our modified categorical approach merely assists the
sentencing court in identifying the defendant’s crime of
conviction, as we have held the Sixth Amendment permits. But the
Ninth Circuit’s reworking authorizes the court to try to
discern what a trial showed, or a plea proceeding revealed, about
the defendant’s underlying conduct. See Aguila-Montes, 655
F. 3d, at 937. And there’s the constitutional rub. The
Sixth Amendment contemplates that a jury—not a sentencing
court—will find such facts, unanimously and beyond a
reasonable doubt. And the only facts the court can be sure the jury
so found are those constituting elements of the offense—as
distinct from amplifying but legally extraneous circumstances. See,
e.g., Richardson v. United States, 526 U. S. 813, 817 (1999) .
Similarly, as Shepard indicated, when a defendant pleads guilty to
a crime, he waives his right to a jury determination of only that
offense’s elements; whatever he says, or fails to say, about
superfluous facts cannot license a later sentencing court to impose
extra punishment. See 544 U. S., at 24–26 (plurality
opinion). So when the District Court here enhanced Descamps’
sentence, based on his supposed acquiescence to a prosecutorial
statement (that he “broke and entered”) irrelevant to
the crime charged, the court did just what we have said it cannot:
rely on its own finding about a non-elemental fact to increase a
defendant’s maximum sentence.
Finally, the Ninth
Circuit’s decision creates the same “daunting”
difficulties and inequities that first encouraged us to adopt the
categorical approach. Taylor, 495 U. S., at 601–602. In
case after case, sentencing courts following Aguila-Montes would
have to expend resources examining (often aged) documents for
evidence that a defendant admitted in a plea colloquy, or a
prosecutor showed at trial, facts that, although unnecessary to the
crime of conviction, satisfy an element of the relevant generic
offense. The meaning of those documents will often be uncertain.
And the statements of fact in them may be downright wrong. A
defendant, after all, often has little incentive to contest facts
that are not elements of the charged offense—and may have
good reason not to. At trial, extraneous facts and arguments may
confuse the jury. (Indeed, the court may prohibit them for that
reason.) And during plea hearings, the defendant may not wish to
irk the prosecutor or court by squabbling about superfluous factual
allegations. In this case, for example, Descamps may have let the
prosecutor’s statement go by because it was irrelevant to the
proceedings. He likely was not thinking about the possibility that
his silence could come back to haunt him in an ACCA sentencing 30
years in the future. (Actually, he could not have been thinking
that thought: ACCA was not even on the books at the time of
Descamps’ burglary conviction.)
Still worse, the
Aguila-Montes approach will deprive some defendants of the benefits
of their negotiated plea deals. Assume (as happens every day) that
a defendant surrenders his right to trial in exchange for the
government’s agreement that he plead guilty to a less serious
crime, whose elements do not match an ACCA offense. Under the Ninth
Circuit’s view, a later sentencing court could still treat
the defendant as though he had pleaded to an ACCA predicate, based
on legally extraneous statements found in the old record. Taylor
recognized the problem: “[I]f a guilty plea to a lesser,
nonburglary offense was the result of a plea bargain,” the
Court stated, “it would seem unfair to impose a sentence
enhancement as if the defendant had pleaded guilty” to
generic burglary. 495 U. S., at 601–602. That way of
proceeding, on top of everything else, would allow a later
sentencing court to rewrite the parties’ bargain.
B
The Ninth Circuit
defended its (excessively) modified approach by denying any real
distinction between divisible and indivisible statutes extending
further than the generic offense. “The only conceptual
difference,” the court reasoned, “is that [a divisible
statute] creates an explicitly finite list of possible means of
commission, while [an indivisible one] creates an implied list of
every means of commission that otherwise fits the definition of a
given crime.” Aguila-Montes, 655 F. 3d, at 927. For
example, an indivisible statute “requir[ing] use of a
‘weapon’ is not meaningfully different”—or
so says the Ninth Circuit—“from a statute that simply
lists every kind of weapon in existence . . .
(‘gun, axe, sword, baton, slingshot, knife, machete,
bat,’ and so on).” Ibid. In a similar way, every
indivisible statute can be imaginatively reconstructed as a
divisible one. And if that is true, the Ninth Circuit asks, why
limit the modified categorical approach only to explicitly
divisible statutes?
The simple answer is:
Because only divisible statutes enable a sentencing court to
conclude that a jury (or judge at a plea hearing) has convicted the
defendant of every element of the generic crime. A prosecutor
charging a violation of a divisible statute must generally select
the relevant element from its list of alternatives. See, e.g., The
Confiscation Cases, 20 Wall. 92, 104 (1874) (“[A]n indictment
or a criminal information which charges the person accused, in the
disjunctive, with being guilty of one or of another of several
offences, would be destitute of the necessary certainty, and would
be wholly insufficient”). [
4 ] And the jury, as instructions in the case will make
clear, must then find that element, unanimously and beyond a
reasonable doubt. So assume, along the lines of the Ninth
Circuit’s example, that a statute criminalizes assault with
any of eight specified weapons; and suppose further, as the Ninth
Circuit did, that only assault with a gun counts as an ACCA
offense. A later sentencing court need only check the charging
documents and instructions (“Do they refer to a gun or
something else?”) to determine whether in convicting a
defendant under that divisible statute, the jury necessarily found
that he committed the ACCA-qualifying crime.
None of that is true of
an overbroad, indivisible stat- ute. A sentencing court, to be
sure, can hypothetically reconceive such a statute in divisible
terms. So, as Aguila-Montes reveals, a court blessed with
sufficient time and imagination could devise a laundry list of
potential “weapons”—not just the eight the Ninth
Circuit mentioned, but also (for starters) grenades, pipe bombs,
spears, tire irons, BB guns, nunchucks, and crossbows. But the
thing about hypothetical lists is that they are, well,
hypothetical. As long as the statute itself requires only an
indeterminate “weapon,” that is all the indictment must
(or is likely to) allege and all the jury instructions must (or are
likely to) mention. And most important, that is all the jury must
find to convict the defendant. The jurors need not all agree on
whether the defendant used a gun or a knife or a tire iron (or any
other particular weapon that might appear in an imagined divisible
statute), because the actual statute requires the jury to find only
a “weapon.” And even if in many cases, the jury could
have readily reached consensus on the weapon used, a later
sentencing court cannot supply that missing judgment. Whatever the
underlying facts or the evidence presented, the defendant still
would not have been convicted, in the deliberate and considered way
the Constitution guarantees, of an offense with the same (or
narrower) elements as the supposed generic crime (assault with a
gun).
Indeed, accepting the
Ninth Circuit’s contrary reasoning would altogether collapse
the distinction between a categorical and a fact-specific approach.
After all, the Ninth Circuit’s “weapons” example
is just the tip of the iceberg: Courts can go much further in
reconceiving indivisible statutes as impliedly divisible ones. In
fact, every element of every statute can be imaginatively
transformed as the Ninth Circuit suggests—so that every crime
is seen as containing an infinite number of sub-crimes
corresponding to “all the possible ways an individual can
commit” it. Aguila-Montes, 655 F. 3d, at 927. (Think:
Professor Plum, in the ballroom, with the candlestick?; Colonel
Mustard, in the conservatory, with the rope, on a snowy day, to
cover up his affair with Mrs. Peacock?) If a sentencing court, as
the Ninth Circuit holds, can compare each of those “implied
. . . means of commission” to the generic ACCA
offense, ibid. (emphasis deleted), then the categorical approach is
at an end. At that point, the court is merely asking whether a
particular set of facts leading to a conviction conforms to a
generic ACCA offense. And that is what we have expressly and
repeatedly forbidden. Courts may modify the categorical approach to
accommodate alternative “statutory definitions.” Ibid.;
cf. MCI Telecommunications Corp. v. American Telephone &
Telegraph Co., 512 U. S. 218, 225 (1994)
(“ ‘ [T]o modify’ means to change
moderately or in minor fashion”). They may not, by pretending
that every fact pattern is an “implied” statutory
definition, Aguila-Montes, 655 F. 3d, at 927, convert that
approach into its opposite.
IV
The Government tries
to distance itself from the Ninth Circuit by offering a purportedly
narrower theory—that although an indivisible statute that is
“truly missing” an element of the generic offense
cannot give rise to an ACCA conviction, California’s burglary
law can do so because it merely “contains a broader version
of the [generic] element of unlawfulness of entry.” Brief for
United States 11–12. The Government’s argument proceeds
in three steps. It begins from the premise that sentencing courts
applying ACCA should consider not only the statute defining a prior
crime but also any judicial interpretations of it. Next, the
Government points to a California decision holding (not
surprisingly) that a defendant cannot “burglariz[e] his own
home”; the case’s reasoning, the Government notes, is
that §459 (though not saying so explicitly) requires “an
entry which invades a possessory right.” People v. Gauze, 15
Cal. 3d 709, 713–716, 542 P. 2d 1365, 1367–1368 (1975).
Given that precedent, the Government contends, §459 includes a
kind of “unlawful entry” element, although it is
broader than the generic crime’s analogous requirement.
Finally, the Government asserts that sentencing courts may use the
modified approach “to determine whether a particular
defendant’s conviction under” such an overbroad statute
actually “was for [the] generic” crime. Brief for
United States 11.
Although elaborately
developed in the Government’s brief, this argument’s
first two steps turn out to be sideshows. We may reserve the
question whether, in determining a crime’s elements, a
sentencing court should take account not only of the relevant
statute’s text, but of judicial rulings interpreting it. And
we may assume, as the Government insists, that California caselaw
treats §459 as including an element of entry “invading a
possessory right”—although, truth be told, we find the
state decisions on that score contradictory and confusing. [
5 ] Even on those assumptions,
§459’s elements do not come into line with generic
burglary’s. As the Government concedes, almost every entry
onto another’s property with intent to steal—including,
for example, a shoplifter’s walking into an open
store—“invades a possessory right” under
§459. See Brief for United States 38; Gauze, 15 Cal. 3d, at
714, 542 P. 2d, at 1367. By contrast, generic burglary’s
unlawful-entry element excludes any case in which a person enters
premises open to the public, no matter his intent; the generic
crime requires breaking and entering or similar unlawful activity.
See Brief for United States 38; LaFave §21.1(a). So everything
rests on the Government’s third point: that this mismatch
does not preclude applying the modified categorical approach,
because it results not from a missing element but instead from an
element’s overbreadth.
But for starters, we
see no principled way to make that distinction. Most overbroad
statutes can also be characterized as missing an element; and most
statutes missing an element can also be labeled overbroad. Here is
the only conclusion in Aguila-Montes we agree with: “[I]t is
difficult, if not impossible” to determine which is which.
655 F. 3d, at 925. The example that court gave was as follows:
A statute of conviction punishes possession of pornography, but a
federal law carries a sentence enhancement for possession of child
pornography. Is the statute of conviction overbroad because it
includes both adult and child pornography; or is that law instead
missing the element of involvement of minors? The same name game
can be played with §459. The Government labors mightily to
turn what it fears looks like a missing-element statute into an
overbroad statute through the incorporation of judicial decisions.
But even putting those decisions aside, the Government might have
described §459 as merely having an overbroad element because
“entry” includes both the lawful and the unlawful kind.
And conversely, Descamps could claim that even as judicially inter-
preted, §459 is entirely missing generic burglary’s ele-
ment of breaking and entering or similar unlawful conduct. All is
in the eye of the beholder, and prone to endless manipulation.
In any event, and more
fundamentally, we see no reason why the Government’s
distinction should matter. Whether the statute of conviction has an
overbroad or missing element, the problem is the same: Because of
the mismatch in elements, a person convicted under that statute is
never convicted of the generic crime. In this case, for example,
Descamps was not convicted of generic burglary because §459,
whether viewed as missing an element or containing an overbroad
one, does not require breaking and entering. So every reason we
have given—textual, constitutional, and practical—for
rejecting the Ninth Circuit’s proposed approach applies to
the Government’s as well. See supra, at 12–16. At
bottom, the Government wants the same thing as the Ninth Circuit
(if nominally in a few fewer cases): It too wishes a sentencing
court to look beyond the elements to the evidence or, otherwise
said, to explore whether a person convicted of one crime could also
have been convicted of another, more serious offense. But that
circumstance-specific review is just what the categorical approach
precludes. And as we have explained, we adopted the modified
approach to help implement the categorical inquiry, not to
undermine it.
V
Descamps may (or may
not) have broken and entered, and so committed generic burglary.
But §459—the crime of which he was convicted—does
not require the factfinder (whether jury or judge) to make that
determination. Because generic unlawful entry is not an element, or
an alternative element, of §459, a conviction under that
statute is never for generic burglary. And that decides this case
in Descamps’ favor; the District Court should not have
enhanced his sentence under ACCA. [
6 ] That court and the Ninth Circuit erred in invoking the
modified categorical approach to look behind Descamps’
conviction in search of record evidence that he actually committed
the generic offense. The modified approach does not authorize a
sentencing court to substitute such a facts-based inquiry for an
elements-based one. A court may use the modified approach only to
determine which alternative element in a divisible statute formed
the basis of the defendant’s conviction. Accordingly, we
reverse the judgment of the Court of Appeals.
It is so ordered.