Abstract
In United States v. Davis, a narrow majority of the U.S. Supreme Court adhered to the “categorical approach” for determining which criminal convictions trigger additional federal penalties. But this approach, which requires courts to consider an individual’s crimes as defined by law instead of the facts of the person’s conduct, has increasingly come under fire. An ever-louder chorus of jurists argues that the approach is unworkable and allows individuals with criminal records to escape harsh consequences that can include decades of added incarceration, registration as a “sex offender,” or mandatory deportation.
These complaints are overstated. The categorical approach—a time-weathered component of American jurisprudence for over a century—is far from the nonsensical nightmare its naysayers portray it to be. Although the aforementioned federal penalties compromise the states’ historic role in defining and prosecuting crimes, in a world where such penalties exist, the categorical approach respects statutory text, avoids administrative challenges, protects Sixth Amendment rights, advances fair notice, and promotes uniformity. In addition, the approach offers an under-recognized federalist counterweight to the undue expansion of federal and state criminal law. In particular, it gives state leaders a unique, subtle incentive to ensure that the most serious crimes focus on the most serious conduct, lest these crimes cease to qualify as predicates for federal penalties.
Given that federal law attaches drastic consequences to crimes that states, localities, tribes, and territories have already punished, the categorical approach is good federalist policy. Until and unless these added consequences are abolished, courts should continue to apply the approach, and the Court’s fealty to categorical analysis is cause for celebration.
Introduction
Federal judges are normally a reserved bunch. Yet some have thrown discretion to the wind when it comes to the much-maligned “categorical approach” for determining which criminal convictions trigger additional and more severe penalties under federal criminal, immigration, and civil law. Under the categorical approach, these penalties generally attach only when the legal definition of an individual’s crime of conviction perfectly satisfies federal requirements, without regard to the facts of the individual’s conduct. Because the approach focuses on convictions as defined by law rather than people’s conduct, outspoken jurists have deemed it a “judicial charade”[1] that “require[s] that judges ignore the real world”[2] and reach results that are “counterintuitive”[3] or even “unbelievable.”[4] One has colorfully judged it to be “a protracted ruse for paradoxically finding even the worst and most violent offenses not to constitute crimes of violence,”[5] pleading: “Heaven help us.”[6]
Absent divine intervention, an end to the categorical approach seems increasingly unlikely. The approach has critics on the U.S. Supreme Court, with Justice Thomas recently calling it an “absurdity.”[7] But this year, in United States v. Davis, a slim majority of the Court dashed many detractors’ hopes by refusing, yet again, to jettison the categorical approach from a statute—namely, 18 U.S.C. § 924(c)(3)(B), which created a federal criminal offense for using a firearm in connection with certain other crimes.[8] Prior to Davis, the Court had already held that a materially identical statute, which defined the term “crime of violence” to include any felony that “by its nature[] involves a substantial risk” of “physical force,” required a disfavored (and, in fact, unconstitutional) variant of categorical analysis.[9] In Davis, the Court adhered to precedent and held that not even the canon of constitutional avoidance could save § 924(c)(3)(B) from the same fate.
Although Davis was ostensibly about statutory interpretation, the case prompted litigants and jurists to debate the history, validity, and prudence of the categorical approach writ large.[10] One can only expect the dispute to rage on this Term in Shular v. United States, in which the Court will again consider whether the categorical approach applies to determine which prior convictions trigger a different federal criminal penalty.[11] The stakes of this broader conflict can hardly be overstated. The categorical approach determines whether people are subject to mandatory and decades-long prison sentence enhancements,[12] “career offender” designations that encourage judges to impose years of additional incarceration,[13] public registration as sex offenders,[14] and near automatic deportation.[15]
Fortunately, the categorical approach is nothing like what its critics make it out to be. It is not steamed broccoli, cooked up by our black-robed rulers and force-fed to lower court judges by loopholing litigants. Quite the contrary: Although the U.S. Congress’s effective repunishment of state, local, tribal, and territorial offenses with steep federal penalties raises federalism concerns, in a world where such penalties exist, the time-honored categorical approach is good policy. Sure, the approach can be difficult to apply at times; federalism, after all, is messy. Even so, the categorical approach is far and away the fairest, most consistent, and most administrable option among alternatives. Moreover, it gives states a rare (and uniquely federalist) incentive against the unchecked expansion of criminal law, one that has yet gone unrecognized among scholars and jurists.
The Supreme Court’s continued adherence to the categorical approach is cause for celebration. Judges—particularly those who prize federalism—ought to cherish the categorical approach, not fear it.
I. An Introduction to the Categorical Approach
Under current law, federal courts and administrators are routinely tasked with deciding whether certain criminal convictions trigger additional penalties. With few exceptions, they make such determinations using the “categorical approach,” meaning that they analyze each crime as defined by law instead of considering an individual’s actual conduct. Specifically, the categorical approach “asks whether the least of conduct made criminal by the . . . statute [or common law] falls within the scope of activity that the federal statute penalizes.”[16]
Although skeptics of the categorical approach often claim that it was invented out of whole cloth by the Supreme Court in 1990,[17] this is simply not the case; Congress has prescribed it by statute for over a century. To be sure, the approach rose in prominence over the last few decades following Congress’s enactment of the Armed Career Criminal Act of 1984 (ACCA) and related statutes in 1986,[18] the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA),[19] and the Sex Offender Registration and Notification Act (SORNA) in 2006.[20] In each of these statutes, Congress enacted text directing courts and agencies to consider convictions, not conduct, when determining whether an individual’s crime qualifies as, for example, a “violent felony,”[21] “aggravated felony,”[22] or a “sex offense.”[23] But the roots of the approach date back to 1891, when Congress first rendered noncitizens removable on the basis of criminal convictions—namely, convictions for crimes involving moral turpitude (CIMTs).[24] At the dawn of the twentieth century, courts interpreting which offenses constituted CIMTs, and so triggered deportation, promptly held that these statutory provisions, like their contemporary counterparts, required a categorical approach.[25] Thus, categorical analysis has a long historical pedigree.
To see how the approach works in practice, consider the ACCA. Ordinarily, those who commit certain federal gun possession crimes under 18 U.S.C. § 922(g), an oft-prosecuted offense,[26] are subject to a maximum of 10 years in prison.[27] But under the ACCA, a person who commits the same offense and “has three previous convictions . . . for a violent felony” becomes subject to a mandatory minimum of 15 years in prison.[28] The ACCA defines “violent felony” to include, among other crimes, any felony that “has as an element the use . . . of physical force against the person of another” or that “is burglary, arson, or extortion.”[29]
When determining whether a person has three “violent felony” convictions, and thus whether this steep penalty applies, courts employ an elements-based categorical approach that looks to the elements of a given offense.[30] Say an ACCA defendant has two prior state-law convictions for burglary and one for assault. Again, the ACCA expressly defines “violent felony” to include “burglary,” but because crimes like burglary are defined differently across many states, courts must determine whether burglary in a given state matches the ACCA’s definition of burglary. To do so, courts “line[] up” the elements of the state-law offense “alongside those of” ACCA burglary.[31] If the state-law offense’s elements are the same “as the ‘generic’ ACCA crime, then the prior conviction can serve as an ACCA predicate. So too if state law defines the crime more narrowly, because anyone convicted under that law is ‘necessarily . . . guilty of all the [generic ACCA crime’s] elements.’”[32] But if “the statute sweeps more broadly than the generic crime”—that is, if any person could be convicted of state-law burglary without committing generic ACCA burglary—then “a conviction under that law cannot count as an ACCA predicate,” even if the defendant’s conduct would have satisfied the elements of generic burglary.[33]
Likewise, although the ACCA does not list “assault” as an example of a “violent felony,” a state assault offense may still qualify as an ACCA predicate if it “has as an element the use . . . of physical force.”[34] Here again, if force is not required for a conviction—that is, if a defendant could be convicted of the state crime without having used “physical force” as defined under the ACCA—it will not trigger severe mandatory enhancements under the ACCA, even if the defendant used force in his own commission of the crime.
At first blush, it may seem counter intuitive to focus on the legal definition of a given offense rather than an individual’s actual conduct. After all, why should a court ignore the real-world facts of what a person did in favor of a mechanistic approach that focuses on the elements of an offense?But throughout the categorical approach’s long history, courts and agencies have offered sound reasons for using it.
In the early immigration cases, administrative constraints were a primary justification. Using the categorical approach effectuated Congress’s intent to “limit[] the role of immigration officers to those of administrators instead of judges.”[35] Thus, as early as 1914, the Second Circuit recognized the importance of cabining the work of immigration officials, who were not intended to “act as judges of the facts to determine from the testimony in each case whether the crime of which the immigrant is convicted” qualified for deportation.[36] Secondary benefits included uniformity and efficiency; by guaranteeing that individuals with like convictions were treated identically, the categorical approach ensured that the inclinations of individual immigration judges did not cloud their review of noncitizens’ prior offenses, and the approach eliminated the need for resource-intensive factual inquiries into past conduct.[37] Each of these concerns remains salient today given the high stakes, limited process, and resource-starved nature of modern immigration adjudication.[38]
More recently, the Supreme Court has defended applying categorical analysis under criminal and immigration statutes alike. First and foremost, the Court has repeatedly explained that Congress has required categorical analysis in the text of the relevant statutory provisions.[39] Moreover, the Court has noted that using a categorical approach instead of a case-specific approach (reviewing the facts of long-past conduct) remains efficient: It avoids serious practical challenges inherent in examining stale records of conviction, which are often difficult to find and inconclusive when available.[40] These practical challenges would also precipitate unfair and arbitrary results. Although a case-specific inquiry would purportedly center on an individual’s prior conduct, two individuals whose conduct was identical could nevertheless face drastically different consequences based on the accessibility of conviction records.
Even when a statute calls for review of contemporaneous rather than prior convictions, practical concerns may still counsel in favor of a categorical inquiry over a case-specific one, as the Davis Court recognized.[41] The categorical approach also continues to promote the uniform, consistent application of federal penalties by ensuring that all convictions for a given predicate crime—first degree robbery in Connecticut, for instance—are treated similarly.[42]
Constitutional requirements in criminal prosecutions provide further support for the categorical approach. The Supreme Court has repeatedly held that permitting a federal judge to determine the facts underlying a prior conviction in order to determine whether a statutory sentence enhancement applies “would raise serious Sixth Amendment concerns,” for “only a jury, and not a judge, may find facts that increase a maximum penalty, except for the simple fact of a prior conviction.”[43] The categorical approach avoids this concern by predicating criminal penalties on prior convictions as legally defined. In addition, the approach avoids fair notice problems: If courts were to look beyond the elements of predicate convictions to their underlying facts, “at the time that a defendant decides to plead guilty to a [predicate] crime, the defendant would likely have no real notice of the potentially severe federal consequences of a decision not to challenge the [government’s] characterization of the defendant’s underlying conduct.”[44] Put differently, a defendant who lacks complete notice of the consequences of certain admissions might not contest the government’s characterization of key facts. In similar fashion, by relying on legal definitions rather than facts, the categorical approach also facilitates defense attorneys’ fulfillment of their Sixth Amendment duty to advise clients regarding the immigration consequences of guilty pleas.[45]
The categorical approach thus tasks courts with applying a relatively straightforward test to resolve questions of critical importance, underpinned by over a century of practice and many sound justifications. Yet a loud minority of judges and commenters continues to bristle at it. These detractors’ objections fall into two categories, neither of which is persuasive.
First, skeptics regularly complain that applying categorical analysis is simply too hard and takes too long.[46] To be sure, the approach is sometimes difficult to apply, particularly given the wide range of states and other sovereigns that define and prosecute crimes that may serve as predicates. Understaffed and overworked district courts and agencies have thus made mistakes. But the courts of appeals have corrected those mistakes, as they have in other areas of law. And over time, these corrections have summed into a readily applicable body of law that should only become clearer. In addition, even if applying the categorical approach in the first instance can be time-consuming, the enormous stakes the approach carries for the most vulnerable members of society—including decades of incarceration and mandatory deportation—surely justify careful attention.
Moreover, complaints that the categorical approach is procedurally confusing often serve as proxies for critics’ substantive dislike of its results.[47] This dislike pushes some jurists to find novel escape hatches from the approach to justify imposing harsh additional penalties.[48] And these deviations, in turn, muddy the jurisprudential waters for future cases. Thus, detractors’ insistence on evading the categorical approach instead of faithfully applying it only makes a straightforward analysis more difficult.
Second, critics balk at the supposedly counterintuitive results produced when the categorical approach spares individuals from supplemental penalties.[49] These skeptics—including the dissenting Justices in Davis—invoke Congress’s asserted intent to penalize and deport individuals who repeatedly commit serious crimes.[50] It is true that Congress enacted statutes like the ACCA in part to penalize those who commit serious crimes involving firearms or who have particularly troubling criminal histories.[51] And Congress indeed hoped that imposing severe penalties would deter such behavior.[52] But relying on these broad-brush purposes to justify the most expansive application of these penalties assumes that Congress acted single-mindedly in pursuit of these goals—phrased differently, that Congress acted with a “meat axe” rather than a “scalpel.”[53] Instead, as Justice Ginsburg argues, we ought to start from the premise that because these penalties are so severe, courts must be especially careful to apply them only within the bounds that Congress established.[54] Moreover, even when courts find these add-on penalties not to apply under the categorical approach, those convicted of federal crimes regularly face decades in prison and other consequences.[55]
Relatedly, critics of the categorical approach complain that it is unjust to require judges to ignore people’s actions when sentencing them or ordering them deported.[56] This argument has particular appeal in the context of sentence enhancements where the penalty at issue derives not from the defendant’s conduct in a prior case, but in the very case at hand.[57] A judge in this circumstance may well sit through a trial in a case defined by violence, only to be told at sentencing that the offense was not a “crime of violence” because it could have been committed in a non-violent way. Yet this concern, too, is overstated. Even where such enhancements do not apply, judges retain substantial discretion to impose lengthy sentences well above the federal Sentencing Guidelines, so long as they remain within statutory limits.[58]
Tellingly, the vociferous objectors to the categorical approach have yet to offer a remotely workable alternative. Dissenting jurists (joined by the government in Davis) advocate replacing the categorical approach with a “case-specific” approach, which would consider a defendant’s underlying conduct rather than the elements of the offense.[59] But as we have explained, such an approach runs headlong into the text of statutes that have long been interpreted to require categorical analysis, engenders serious practical difficulties (if not Sixth Amendment violations), contravenes fair notice principles, undermines uniformity, and imposes substantial burdens on resource-starved agencies and courts.
Other, more creative alternatives are similarly untenable. For example, some commentators have argued that Congress should base federal penalties on the length of the sentence imposed for a predicate offense.[60] But even proponents of this approach recognize that it would exacerbate sentencing disparities based on race and other invidious factors.[61]In addition, under current law, federal penalties are determined by whether a defendant is guilty of a predicate offense, a fact determined by a jury. Basing such penalties on sentence length rather than the simple fact of conviction, however, would afford individual state judges unilateral authority to determine the federal immigration consequences of any particular defendant’s conviction.
Simply basing sentencing enhancements on how a state happens to name its criminal offenses[62] or giving the federal Sentencing Commission authority to define which crimes qualify as predicates[63] makes even less sense. The former would discard any semblance of a uniform federal definition, and given that states differ significantly in their labeling and definition of crimes, defendants would arbitrarily face federal enhancements based on the happenstance of state nomenclature.[64] The latter proposal would arrogate to a federal agency the authority to decide which offenses trigger mandatory statutory penalties, raising serious separation of powers concerns.
Finally, one could also imagine a scheme that eliminates statutory minimum and maximum sentences and relies more heavily on the discretion of sentencing judges to impose longer sentences based on a defendant’s criminal history.[65] But sentencing judges already hold vast authority to double- or triple-count a defendant’s criminal history,[66] and a system that replaced the categorical approach with even greater discretion would offer no aid to an immigration regime premised on mandatory deportation for criminal convictions.[67] Likewise, granting so-called immigration courts[68] broad discretion to deport, without the safeguards of Article III, would raise precisely the same concerns about administrative power that led courts to first adopt the categorical approach in the early 1900s, long before Congress applied it more widely.
II. The Categorical Approach and Federalism
The longstanding justifications for the categorical approach soundly rebut the attacks lodged against it. But the attacks fall short for an additional and under-recognized reason: They fail to acknowledge the approach’s relative federalism benefits.
“Our federal system allows the various states to define offenses as they see fit . . . .”[69] In fact, it is not just the fifty state legislatures and Congress that define crimes: The categorical approach also applies to offenses defined in tribal law,[70] territorial law,[71] the D.C. code,[72] municipal ordinances,[73] and perhaps even regulations[74] or military orders[75] incorporated into certain criminal statutes.
With scores of separate sovereigns (and a wide range of actors within these sovereigns) defining and enforcing crimes, it is no surprise that categorizing these crimes is sometimes difficult. Federalism is “gloriously messy” by design, as it relies on a “complex amalgam of state and local actors” that empowers political minorities to not only “make [state and local] policy in accord with their own preferences,” but also exercise a voice in shaping national policy.[76] Thus, the Supreme Court has long recognized the “complicated” nature of the “interrelationship between national authority and the States.”[77] It has emphasized that “[w]hen Congress criminalizes conduct already denounced as criminal by the States, it effects a change in the sensitive relation between federal and state criminal jurisdiction”—one disfavored by our delicate constitutional system, in which “the States possess primary authority for defining and enforcing the criminal law.”[78]
The categorical approach is Congress’s chosen method of bringing order to this beautiful chaos while still serving federal policy. In fact, federalism was at the forefront of the congressional debate surrounding the ACCA, the first statute that transposed categorical analysis from immigration into criminal law. Complaints about the well-documented “proliferation of federal criminal law”[79] may seem quaint today, but when Congress sought to criminalize armed robberies and burglaries in the early 1980s, President Ronald Reagan pocket vetoed the bill in part due to concerns about state-federal relations.[80] After members of Congress reintroduced an analogous bill, the National District Attorneys Association, too, raised “basic Federalism arguments” against federal prosecutions of robberies and burglaries.[81] Accordingly, the House Subcommittee on Crime revised the proposal into a sentence enhancement tied to the existing federal statute prohibiting certain individuals, including those convicted of felonies, from possessing firearms.[82] The Senate Judiciary Committee emphasized that this was “intended to supplement state prosecutions, not to super[s]ede them,” thus respecting the “prerogatives of the States in defining their own offenses.”[83] Similarly, the ACCA’s creator and main proponent in Congress claimed that the law’s principal benefit would be to pressure individuals to plead guilty in state court due to the mere prospect of enhanced federal sentences, without requiring any substantial number of federal prosecutions.[84] With these assurances, Congress passed, and President Reagan signed, the first ACCA in 1984.[85]
Thus, Congress utilized state convictions as categorical ACCA predicates—rather than defining new federal crimes—precisely “because it was concerned about federalism and wanted to preserve the state’s role in defining, enforcing, and prosecuting essentially local crimes.”[86] In reality, ACCA has fallen short of this goal even with the categorical approach: From 2008 to 2013, the federal government secured over 3,500 sentence enhancements under the ACCA and over 13,500 under a similar “career offender” enhancement,[87] a far cry from proponents’ original vision of bringing only a handful of ACCA prosecutions in each jurisdiction and letting deterrence take care of the rest. In addition, the consequences triggered by the ACCA and similar federal statutes often dramatically outstrip the sentences deemed appropriate by states and localities, upsetting our federalist structure in which states hold primary authority to define and punish crimes. Even so, taking Congress’s imposition of such penalties as a given, predicating their application on crimes as defined by states is, at least, more respectful of state police powers than wholesale federalization of robberies and burglaries.
Moreover, the categorical approach is not just a federalist bulwark against further expansion of federal criminal law. If Congress has chosen to impose drastic supplemental penalties based on criminal convictions, evaluating these convictions categorically creates a uniquely federalist, liberty-protective counterweight against the unchecked expansion of state criminal law. Lauding the benefits of our federalist system, the Supreme Court has instructed that “[i]n the tension between federal and state power lies the promise of liberty.”[88] Viewed in this light, detractors’ principal lament about the categorical approach—namely, that it spares those convicted of serious but overbroad crimes from added penalties[89]—may be one of its greatest strengths.
Consider the perspective of a judge on a state appeals court who is confronted with an appeal from a robbery conviction.[90] The appellant concedes that he stole a briefcase and so committed larceny, but he insists that he did not use or threaten any force in doing so—except that he overcame the victim’s brief effort to hold onto the briefcase.[91] The state concedes that this was its only evidence of force, but it argues that this suffices to meet the force element of the state robbery statute. Predictably, the state robbery statute is ambiguous on this point.
What will the judge do? It is impossible to forecast with certainty, but reasonable observers will agree that the appellant faces an uphill climb. He appears morally blameworthy, having stolen from an innocent victim.[92] Because he lost at trial, the appellate judge may be reluctant to reverse. She knows prosecutions are resource intensive, and she may not wish to stigmatize the trial judge with a “public declaration of error.”[93] Furthermore, if the appellate judge fears the indignity of being overruled by the legislature, she will strive to avoid reversal, which would seem more likely to “attract hostile legislative attention” than affirmance.[94]
The categorical approach does not remove these incentives. But it gives the appellate judge one countervailing consideration: If she opts to define this crime too broadly, it will expand beyond the relevant federal definition and cease to qualify as a predicate for federal sentence enhancement or deportation. This is a perfectly reasonable policy—at some point, any classification must become so overbroad that it fails to serve as a meaningful differentiator for the imposition of severe federal penalties.[95] At the same time, it offers an incentive for state judges and legislators to ensure that serious crimes retain some focus on the so-called “worst of the worst” by defining these crimes narrowly, lest they tie the hands of federal officials on the back end.
The point is not only that those concerned about mass incarceration and deportation ought to celebrate the categorical approach;[96] so, too, should those who value the “basic principle of our federalism” that the states should retain power to “administer[] their criminal justice systems free from federal interference.”[97] Enforcing federal constitutional limits on the scope of state criminal law by invalidating state statutes outright results in blunt (if necessary) federal intrusions on state authority.[98] The categorical approach, however, is nuanced. Instead of striking down overbroad state laws, it simply rebalances incentives and leaves state leaders with options. Some may choose narrower definitions of state crimes that qualify for robust federal penalties; others may make the opposite choice, opting to criminalize certain conduct while ensuring that it cannot serve as a predicate for deportation. Still others may explore mechanisms of structuring criminal law that both limit state penalties and avoid federal ones.[99] Whatever state leaders decide, categorical analysis gives them more voice in shaping how national policies apply to their constituents.[100] And even if they ignore these options entirely, the categorical approach will serve as a backstop to ensure that overbroad state laws will not trigger harsh federal penalties.
To be sure, there is tension between empowering states in this manner and preserving the federal interest in uniformity. Two individuals who commit state-law robbery in similar fashion may face starkly divergent consequences under federal law, based solely on how each person’s home state defines robbery. But these individuals may face disparate consequences under state law, too—and such disuniformity is a necessary consequence of the states’ historic preeminence in criminal matters. In other words, respect for state authority requires acceptance of the fact that different states may choose different paths. At the very least, the categorical approach ensures that people convicted of a given crime within a given state are treated uniformly, based on that state’s preferences, regardless of which individual case records happen to be available.
Moreover, no proposed alternative to the categorical approach offers analogous federalist benefits. Classifying convictions based on nomenclature or sentence length would replace the approach’s liberty-protective tension with a destructive synergy, as either option would give legislators and judges additional incentives to expand crimes or prolong sentences, so as to stack on federal penalties against disfavored classes of defendants. Meanwhile, a case-specific approach would “seriously disrupt the dynamics of the state criminal process” by shifting the focus from the defendant’s guilt to irrelevant factual disputes that might affect future federal penalties.[101] Worse, in the commonplace event that a state court’s factual record was inconclusive or contested, a federal court would confront the “unseemly” prospect of relitigating facts underlying a prior state conviction.[102]
It bears emphasizing, however, that the categorical approach’s liberty-enhancing tension and corresponding policy benefits will redound only if federal courts and administrative agencies fairly apply it, even when doing so means sparing individuals they deem unsympathetic from added penalties. Courts and agencies have not always risen to that task. This January, for example, a slim majority of the Supreme Court held that a Florida robbery statute requiring only force sufficient to overcome a victim’s resistance categorically qualified as a “violent felony” under the ACCA.[103] By lowering rather than enforcing the robust “violent force” standard it had announced just nine years earlier,[104] the Court eliminated the benefits of the tension from our hypothetical above.[105] In extreme cases, the Court has reached even further to hold categorical analysis entirely inapplicable.[106]
Fortunately, such derelictions of duty remain the exception—at least at the Supreme Court, which has rightfully resisted many other efforts to erode the application of the categorical approach[107] and has strictly enforced the approach’s requirements.[108] Most recently, in Davis, an unusual case involving a problematic version of categorical analysis, the Court rejected the government’s entreaties to jettison the approach.[109]
The Supreme Court will soon be confronted with yet another opportunity, in Shular v. United States, to hold the categorical approach inapplicable to a federal penalty provision. It ought to reject this effort, just as it did in Davis. By continuing such vigilance, the Court can ensure the categorical approach’s federalist benefits are realized.
Conclusion
Good news, everyone: The categorical approach is here to stay. If United States v. Davis is any indication, the Court’s willingness to adhere to precedent and text, even in the context of a disfavored and unconstitutional form of the categorical approach, bodes well for the continued survival of the more sound (and more frequently applied) elements-based categorical approach in United States v. Shular and future cases.
In this, we should all rejoice. Far from being the judicially imposed novelty its disparagers imagine, the categorical approach is in fact older and wiser than its opponents, and its brilliance grows even clearer through a federalist lens. Given Congress’s insistence on using convictions to impose added penalties, the categorical approach creates a quintessentially federalist and liberty-protective incentive for states to hit the brakes on overcriminalization. And even if this incentive goes ignored, the approach ensures that harsh federal penalties attach only to convictions for crimes that have not been watered down by overzealous state actors.
That said, there is one alternative that would be even more respectful of federalism than the categorical approach: outright repeal. By re-penalizing defendants at least in part for conduct that states have already criminalized and punished, federal definitions like “violent felony,” “crime of violence,” and “aggravated felony” necessarily impinge upon states’ broad authority to define crimes and fix sentences.[110] Because Congress seemingly never intended the ACCA and similar criminal statutes to explode federal prosecutions, repeal might even result in a legal regime closer to the balance it initially envisioned.[111] And if combing through state law for answers is truly too complex for federal courts to handle, eliminating the relevant penalties would undeniably simplify the task.
Rather than attacking the categorical approach, then, pro-federalist critics in search of consistency and fairness ought to channel their voices towards abolition of the 1980s and 1990s penalties that precipitated the modern explosion of categorical litigation. If they choose to do so, we will be right there with them. In the meantime, the categorical approach will continue to reign supreme—and in the world we have, that is cause for celebration.
[1]. Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir. 2018) (Pryor, J., concurring).
[2]. United States v. Chapman, 866 F.3d 129, 136 (3d Cir. 2017) (Jordan, J., concurring).
[3]. United States v. Faust, 853 F.3d 39, 61 (1st Cir. 2017) (Lynch, J., concurring).
[4]. United States v. Begay, 924 F.3d 1033, 1042 (9th Cir. 2019) (Smith, J., dissenting in part); see also id. (“MURDER in the second-degree is NOT a crime of violence???”) (internal footnote omitted).
[5]. United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring).
[6]. United States v. McCollum, 885 F.3d 300, 314 (4th Cir. 2018) (Wilkinson, J., dissenting).
[7]. Quarles v. United States, 139 S. Ct. 1872, 1880 (2019) (Thomas, J., concurring).
[8]. United States v. Davis, 139 S. Ct. 2319, 2327–36 (2019).
[9]. Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018) (analyzing 18 U.S.C. § 16(b) (2012)); Leocal v. Ashcroft, 543 U.S. 1, 7 (2004). Under this “distinctive form” of the categorical approach, a court was required to envision the “ordinary case” of an offense and then evaluate whether this “ordinary case” posed a “substantial risk” of violent force. Dimaya, 138 S. Ct. at 1211. In contrast to this subjective inquiry, traditional categorical analysis asks only “what the elements of a given crime always require—in effect, what is legally necessary for a conviction.” Id. at 1211 n.1 (emphasis added).
[10]. See, e.g., Ovalles v. United States, 905 F.3d 1231, 1253–62 (11th Cir. 2018) (Pryor, J., concurring); Brief for the United States at 37, Davis, 139 S. Ct. 2319 (No. 18-431) (arguing the Court’s discussion of categorical analysis in 1990 “effectively forestalled” “[a]ny development of a circumstance-specific approach to § 924(c)(3)(B)”); Brief for Respondent at 31, Davis, 139 S. Ct. 2319 (No. 18-431) (“Courts have considered predicate offenses categorically for at least a century.”).
[11]. Shular v. United States, 139 S. Ct. 2773 (2019) (mem.).
[12]. See, e.g., 18 U.S.C. § 924(e)(1) (2012) (imposing mandatory fifteen-year enhancement for firearm crime if defendant has “three previous convictions . . . for a violent felony or a serious drug offense”); id. § 924(c)(1)(A) (providing enhanced penalties for firearm offense committed “during and in relation to any crime of violence or drug trafficking crime”).
[13]. See U.S. Sentencing Comm’n, U.S. Sentencing Commission Guidelines Manual 2018 § 4B1.1(a) (2018) (defining career offender as defendant with “at least two prior felony convictions of either a crime of violence or a controlled substance offense”); see also id. § 4B1.2(a)–(b) (defining “crime of violence” and “controlled substance offense”).
[14]. See 34 U.S.C. § 20911(5)(A)(i) (2012) (defining “sex offense” as, inter alia, “a criminal offense that has an element involving a sexual act or sexual contact with another”); id. § 20913(a) (requiring “sex offenders” to register).
[15]. See 8 U.S.C. § 1227(a)(2)(A)(iii) (2012) (“Any [noncitizen] who is convicted of an aggravated felony at any time after admission is deportable.”).
[16]. United States v. Kroll, 918 F.3d 47, 52 (2d Cir. 2019) (quoting Stuckey v. United States, 878 F.3d 62, 67 (2d Cir. 2017)); see also United States v. Harris, 844 F.3d 1260, 1268 n.9 (10th Cir. 2017) (“Only if the least culpable conduct fits the federal comparison does a state crime qualify as a violent felony under the ACCA.”).
[17]. In Davis, the Government described United States v. Taylor, 495 U.S. 575 (1990), as a “watershed” moment for the categorical approach that “effectively forestalled” any contrary interpretation. Brief for the United States at 37, United States v. Davis, 139 S. Ct. 2319 (2019) (No. 18-431); see also, e.g., Chambers v. United States, 555 U.S. 122, 132 (2009) (Alito, J., concurring) (“[O]nly Congress can rescue the federal courts from the mire into which ACCA’s draftsmanship and Taylor’s ‘categorical approach’ have pushed us.”).
[18]. Pub. L. No. 98–473, ch. 18, 98 Stat. 2185 (repealed in 1986 by Pub. L. No. 99–308, § 104(b), 100 Stat. 459).
[19]. Pub. L. No. 104–208, 110 Stat. 3009–596; cf. Padilla v. Kentucky, 559 U.S. 356, 360 (2010) (“[I]mmigration reforms over time have expanded the class of deportable offenses and limited the authority of judges to alleviate the harsh consequences of deportation.”).
[20]. 46 U.S.C. § 16901 (2006) (originally enacted as Title I of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109–248, 120 Stat. 587 (2006)).
[21]. 18 U.S.C. § 924(e)(1) (2012).
[22]. 8 U.S.C. § 1227(a)(2)(A)(3) (2012).
[23]. 34 U.S.C. § 20911 (2012).
[24]. Alina Das, The Immigration Penalties of Criminal Convictions: Resurrecting Categorical Analysis in Immigration Law, 86 N.Y.U. L. Rev. 1669, 1689 (2011) (citing Act of Mar. 3, 1891, ch. 551, § 1, 26 Stat. 1084, 1084).
[25]. See, e.g., United States ex rel. Guarino v. Uhl, 107 F.2d 399, 400 (2d Cir. 1939) (explaining “deporting officials may not consider the particular conduct for which the [noncitizen] has been convicted”); see also United States ex rel. Mylius v. Uhl, 210 F. 860, 863 (2d Cir. 1914) (holding question of whether a crime involves moral turpitude “must be determined from the judgment of conviction and not from the testimony adduced at the trial”).
[26]. In FY 2017 alone, prosecutors charged over ten thousand offenses under 18 U.S.C. § 922 and a related provision, 18 U.S.C. § 924. Exec. Office for U.S. Att’ys, United States Attorneys’ Annual Statistical Report 15 (2017), https://www.justice.gov/usao/
page/file/1081801/download [https://perma.cc/2RM2-Q6HP].
[27]. 18 U.S.C. § 924(a)(2) (2012).
[28]. Id. § 924(e)(1).
[29]. Id. § 924(e)(2)(B).
[30]. See, e.g., Mathis v. United States, 136 S. Ct. 2243, 2251–52 (2016); Taylor v. United States, 495 U.S. 575, 601–02 (1990).
[31]. Mathis, 136 S. Ct. at 2248.
[32]. Descamps v. United States, 570 U.S. 254, 261 (2013) (quoting Taylor, 495 U.S. at 599).
[33]. Id. When the relevant statute “list[s] elements in the alternative, and thereby define[s] multiple crimes,” courts apply what is known as the modified categorical approach. Mathis, 136 S. Ct. at 2249. Despite its name, the modified version does not change the core categorical analysis; it simply acknowledges that certain statutes define multiple crimes. Id. at 2248–49. For a more thorough treatment, see Alexander G. Peerman, Note, Parsing Prior Convictions: Mathis v. United States and the Means-Element Distinction, 118 Colum. L. Rev. 171 (2018).
[34]. 18 U.S.C. § 924(e)(2)(B)(i).
[35]. Das, supra note 24, at 1691.
[36]. United States ex rel. Mylius v. Uhl, 210 F. 860, 863 (2d Cir. 1914).
[37]. Das, supra note 24, at 1696.
[38]. See Amit Jain, Bureaucrats in Robes: Immigration “Judges” and the Trappings of “Courts,” 33 Geo. Immigr. L.J. 261, 282 (2019) (discussing resource constraints in immigration courts).
[39]. See, e.g., United States v. Davis, 139 S. Ct. 2319, 2328 (2019) (“It’s not even close; the statutory text commands the categorical approach.”); Mathis v. United States, 136 S. Ct. 2243, 2552 (2016); Taylor v. United States, 495 U.S. 575, 600–01 (1990).
[40]. Moncrieffe v. Holder, 569 U.S. 184, 200–01 (2013); United States v. Wilson, 951 F.2d 586, 590 (4th Cir. 1991) (“The factual approach . . . would transform the sentencing hearing into a series of mini-trials in which the defendant rehashes his version of the events that led to his predicate convictions and the prosecution searches for stale evidence to prove an element that was necessarily proved or admitted at the prior proceeding.”).
[41]. Davis, 139 S. Ct. at 2331–32 (noting practical difficulties with leaving risk-of-force analysis to jury, even when contemporaneous rather than prior conduct is at issue).
[42]. See, e.g., Taylor, 495 U.S. at 591 (holding Congress intended a “uniform categorical definition[] to identify predicate offenses”); Wilson, 951 F.2d at 590 (holding categorical approach enhances uniformity by “avoid[ing] ad hoc determinations about what kind of conduct merits application of the career offender provision”).
[43]. Mathis, 136 S. Ct. at 2252.
[44]. United States v. Faust, 853 F.3d 39, 64 (1st Cir. 2017) (Barron, J., concurring); see also, e.g., Mathis, 136 S. Ct. at 2253 (highlighting fair notice concern with accepting “[s]tatements of ‘non-elemental fact’ in the records of prior convictions,” which “are prone to error precisely because their proof is unnecessary”); Das, supra note 24, at 1728–29 (arguing categorical approach is “particularly important given the severity of the consequences” of deportation and the disparity in resources between noncitizen and government).
[45]. See Padilla v. Kentucky, 559 U.S. 356, 374 (2010) (outlining relevant Sixth Amendment requirement).
[46]. See, e.g., Quarles v. United States, 139 S. Ct. 1872, 1881 (2019) (Thomas, J., concurring) (contending categorical approach “is difficult to apply and can yield dramatically different sentences”); United States v. Perez-Silvan, 861 F.3d 935, 944 (9th Cir. 2017) (Owens, J., concurring) (lamenting “frequent sentencing adventures more complicated than reconstructing the Staff of Ra in the Map Room to locate the Well of the Souls”).
[47]. See, e.g., Mathis, 136 S. Ct. at 2258 (Kennedy, J., concurring) (objecting to “arbitrary and inequitable results” that “could not have been Congress’ intent”); United States v. Valdivia-Flores, 876 F.3d 1201, 1210 (9th Cir. 2017) (O’Scannlain, J., specially concurring) (bemoaning “bizarre and arbitrary effects of the ever-spreading categorical approach”).
[48]. For example, the Supreme Court has explained that even where a predicate crime does not on its face sweep beyond the federal statute, a defendant or noncitizen can nevertheless “demonstrate that the State actually prosecutes the relevant offense” in a manner that falls outside the generic definition. Moncrieffe v. Holder, 569 U.S. 184, 206 (2013). Notwithstanding this directive, the Second Circuit recently dismissed a noncitizen’s petition for review despite multiple, undisputed examples of state prosecutions that fell outside the generic definition at issue. Matthews v. Barr, 927 F.3d 606, 620-23 (2d Cir. 2019); see also id. at 623–26 (Carney, J., dissenting) (critiquing majority’s analysis).
[49]. See, e.g., Faust, 853 F.3d at 61 (Lynch, J., concurring) (arguing categorical approach “lead[s] courts to reach counterintuitive results, and ones which are not what Congress intended”).
[50]. See, e.g., United States v. Davis, 139 S. Ct. 2319, 2353 (2019) (Kavanaugh, J., dissenting) (“In enacting § 924(c), Congress sought to keep firearms away from violent criminal situations.”); United States v. Doctor, 842 F.3d 306, 313 (4th Cir. 2016) (Wilkinson, J., concurring) (“The categorical approach, too aggressively applied, eviscerates Congress’s attempt to enhance penalties for violent recidivist behavior.”).
[51]. See infra notes 80–85 and accompanying text (describing history of ACCA’s enactment).
[52]. See infra notes 80–85 and accompanying text.
[53]. McDonnell v. United States, 136 S. Ct. 2355, 2373 (2016) (internal citations and quotation marks omitted).
[54]. Transcript of Oral Argument at 29:2–4, United States v. Stitt, 139 S. Ct. 399 (2018) (No. 17-765). Indeed, the rule of lenity, which “teach[es] that ambiguities about the breadth of a criminal statute should be resolved in the defendant’s favor,” may even require as much. Davis, 139 S. Ct. at 2333.
[55]. United States v. Kroll, 918 F.3d 47, 57 (2d Cir. 2019) (noting defendant “still face[d] a Sentencing Guidelines range of decades in prison”).
[56]. See, e.g., United States v. Douglas, 907 F.3d 1, 14 (1st Cir. 2018), cert. granted, judgment vacated, 139 S. Ct. 2775 (2019), and abrogated by United States v. Davis, 139 S. Ct. 2319 (2019) (arguing the categorical approach “force[s] judges to be willfully blind to particular facts”).
[57]. 18 U.S.C. §§ 924(c)(1)(A)–(c)(3)(B) (2012).
[58]. See infra notes 65–66 (describing sentencing discretion).
[59]. See, e.g., Davis, 139 S. Ct. at 2345 (Kavanaugh, J., dissenting) (“We should read § 924(c)(3)(B) . . . to focus on the actual defendant’s actual conduct during the actual underlying crime . . . .”); Quarles v. United States, 139 S. Ct. 1872, 1880–81 (2019) (Thomas, J., concurring); Brief for the United States at 20–32, Davis, 139 S. Ct. 2319 (No. 18-431) (arguing courts should permit case-specific analysis under 18 U.S.C. § 924(c)(3)(B)).
[60]. See Rebecca Sharpless, Clear and Simple Deportation Rules for Crimes: Why We Need Them and Why It’s Hard to Get Them, 92 Denv. L. Rev. 933, 956 (2015) (advocating for “reforms that would create an over-five-year actual sentence trigger for deportation and restore judicial discretion to stop deportations”).
[61]. Id. at 957 (acknowledging that “chronic sentencing disparities, including ones based on invidious grounds like race, render sentence length a blunt instrument”). See generally Sentencing Project, Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance (2018).
[62]. Transcript of Oral Argument 23:8–12, United States v. Stitt, 139 S. Ct. 399 (2018) (No. 17-756). (Gorsuch, J.).
[63]. Avi M. Kupfer, A Comprehensive Solution to the Armed Career Criminal Act Debacle, 113 Mich. L. Rev. 151, 166–79 (2014).
[64]. Taylor v. United States, 495 U.S. 575, 590–91 (1990) (cataloging variations in state terminology).
[65]. Cf. Cornelia J.B. Gordon, Interpreting Begay After Sykes: Why Reckless Offenses Should Be Eligible to Qualify as Violent Felonies Under the ACCA’s Residual Clause, 63 Duke L.J. 955, 982, n.160 (2014) (discussing possibility of granting sentencing judges greater discretion).
[66]. See, e.g., United States v. Overstreet, 713 F.3d 627, 639 (11th Cir. 2013) (internal citations and quotation marks omitted) (“[A] district court can rely on factors in imposing a variance that it had already considered in imposing [a Guidelines] enhancement.”).
[67]. See 8 U.S.C. § 1227(a)(2) (2012).
[68]. See Jain, supra note 38, at 291–316 (outlining bureaucratic aspects of immigration courts and concluding that they are not “courts” in an adversarial legal sense).
[69]. United States v. Rangel-Castaneda, 709 F.3d 373, 379 (4th Cir. 2013).
[70]. E.g., 18 U.S.C. § 921(a)(33)(A) (2012) (defining “misdemeanor crime of domestic violence” to include crimes under Tribal law which satisfy certain elements).
[71]. E.g., United States v. Castro-Vazquez, 802 F.3d 28, 34–38 (1st Cir. 2015) (reversing conclusion that certain Puerto Rico convictions were categorically crimes of violence).
[72]. E.g., United States v. Kendall, 876 F.3d 1264, 1271–73 (10th Cir. 2017) (finding a D.C. code conviction was categorically a crime of violence).
[73]. E.g., Flores-Molina v. Sessions, 850 F.3d 1150, 1156–72 (10th Cir. 2017) (holding that a Denver municipal conviction was not categorically a CIMT).
[74]. Franco-Casasola v. Holder, 773 F.3d 33, 36–39 (5th Cir. 2014) (holding that when analyzing statute criminalizing certain exports “contrary to any . . . regulation of the United States,” 18 U.S.C. § 554(a), courts could apply categorical analysis to regulation).
[75]. Aguilar-Turcios v. Holder, 740 F.3d 1294, 1300 n.8 (9th Cir. 2014) (assuming that violation of Uniform Code of Military Justice for failure to follow lawful general order could qualify as predicate conviction and applying categorical approach to lawful general order).
[76]. Heather K. Gerken, Foreword: Federalism All the Way Down, 124 Harv. L. Rev. 4, 7–8, 72 (2010).
[77]. New York v. O’Neill, 359 U.S. 1, 9 (1959) (citing Hopkins Fed. Sav. & Loan Ass’n v. Cleary, 296 U.S. 315 (1935)).
[78]. United States v. Lopez, 514 U.S. 549, 561 n.3 (1995) (internal citations and quotation marks omitted); see also Rachel E. Barkow, Our Federal System of Sentencing, 58 Stan. L. Rev. 119, 121–24 (2005) (outlining constitutional and functional justifications for limitations on federal criminal jurisdiction).
[79]. Gamble v. United States, 139 S. Ct. 1960, 1979 (2019); see also id. at 1994 (Ginsburg, J., dissenting) (noting that over “the last half century,” “federal criminal law has been extended pervasively into areas once left to the States”).
[80]. H.R. Rep. No. 98-1073, at 4 (1984); S. Rep. No. 98-190, at 3 (1983); see also, e.g., United States v. Faust, 853 F.3d 39, 65 (1st Cir. 2017) (Barron, J., concurring) (“Congress rejected, on federalism grounds, initial legislative plans to formulate an alternative to [the ACCA] enhancement for fear that . . . the federal government would displace the state criminal process.” (citing H.R. Rep. No. 99-849, at 3 (1986))); Brandon E. Beck, The Orwell Court: How the Supreme Court Recast History and Minimized the Rule of the U.S. Sentencing Guidelines to Justify Limiting the Impact of Johnson v. United States, 66 Buff. L. Rev. 1013, 1019–21 (2018) (outlining relevant history).
[81]. H.R. Rep. No. 98-1073, at 4.
[82]. Beck, supra note 80, at 1018–20.
[83]. S. Rep. No. 98-190, at 10, 20.
[84]. Beck, supra note 80, at 1020–21 (quoting Armed Career Criminal Act: Hearing on H.R. 1627 and S.52 Before the Subcomm. on Crime of the H. Comm. on the Judiciary, 98th Cong. 13 (1984) (statement of Sen. Arlen Specter)).
[85]. Beck, supra note 80, at 1021.
[86]. United States v. Duval, 496 F.3d 64, 83 (1st Cir. 2007) (citing H.R. Rep. No. 98-1073, at 5).
[87]. Supplemental Brief for the United States, Johnson v. United States, 135 S. Ct. 2551 (2015) (No. 13-7120), 2015 WL 1284964, at *49 (citing U.S. Sentencing Comm’n, Sourcebook of Federal Sentencing Statistics, tbl.22 (2008–2013)).
[88]. Gregory v. Ashcroft, 501 U.S. 452, 459 (1991); see also Gamble v. United States, 139 S. Ct. 1960, 2000 (2019) (Gorsuch, J., dissenting) (critiquing majority for “invok[ing] federalism not to protect individual liberty but to threaten it”).
[89]. See supra notes 49–54 and accompanying text.
[90]. Readers who are familiar with the Supreme Court’s categorical approach jurisprudence should presume the hypothetical takes place in 2018, prior to the Court’s decision in Stokeling v. United States, 139 S. Ct. 544 (2019).
[91]. Recall that the ACCA enhances a defendant’s sentence if he has three prior “violent felony” convictions, a category that includes any felony that “has as an element the use . . . of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i) (2012).
[92]. Cf. Stephen F. Smith, Overcoming Overcriminalization, 102 J. Crim. L. & Criminology 537, 544 (2012) (noting that even unelected federal judges “seem to view themselves as having an obligation to ensure that morally blameworthy defendants will not slip through cracks in the criminal law”).
[93]. William J. Stuntz, The Pathological Politics of Criminal Law, 100 Mich. L. Rev. 505, 541 (2001).
[94]. Id. at 542; see also id. at 546–47 (emphasizing legislators’ incentives to “see criminal law as a one-way ratchet”). Judges in many states also face electoral consequences. Id. at 540–42.
[95]. Cf. Nieves v. Bartlett, 139 S. Ct. 1715, 1730 (2019) (Gorsuch, J., concurring in part and dissenting in part) (“[C]riminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something.”).
[96]. E.g., Jennifer Lee Koh, The Whole Better than the Sum, 26 Geo. Immigr. L.J. 257, 299–310 (2012) (defending approach as corrective measure for disadvantages faced by noncitizens in removal proceedings).
[97]. United States v. Ron Pair Enters., Inc., 489 U.S. 235, 245 (1989) (internal citations and quotation marks omitted).
[98]. E.g., Arizona v. United States, 567 U.S. 387, 400–07 (2012) (holding state immigration misdemeanors preempted); City of Chicago v. Morales, 527 U.S. 41, 51 (1999) (invalidating city ordinance as unconstitutionally vague); Robinson v. California, 370 U.S. 660, 666 (1962) (reasoning that “a law which made a criminal offense of” a disease would constitute cruel and unusual punishment).
[99]. For example, some states have reduced misdemeanor sentences from 365 to 364 days to prevent such convictions from serving as predicates for deportation. New York State’s FY 2010 Budget Includes Provision Reducing Maximum Sentence for Misdemeanors to 364 Days, in 96 Interpreter Releases 10 n.8 (2019). However, not all state-level attempts at leniency are successful: After California established a procedure for those convicted of marijuana felonies to have their crimes “reclassified” as misdemeanors, the Ninth Circuit held that a reclassified conviction nevertheless qualified as an “aggravated felony” for immigration purposes. Prado v. Barr, 923 F.3d 1203, 1205–08 (9th Cir. 2019).
[100]. See Gerken, supra note 76, at 7–8 (emphasizing that in federalist model, “minorities . . . enjoy a muscular form of voice—the power not just to complain about national policy, but to help set it”).
[101]. United States v. Faust, 853 F.3d 39, 65 (1st Cir. 2017) (Barron, J., concurring).
[102]. United States v. Wilson, 951 F.2d 586, 590 (4th Cir. 1991).
[103]. Stokeling v. United States, 139 S. Ct. 544, 554–55 (2019).
[104]. Id. at 557–58 (Sotomayor, J., dissenting) (citing Johnson v. United States, 559 U.S. 133, 138–43 (2010)).
[105]. Some courts have also ratcheted down the force standard for “violent felonies” and “crimes of violence” by copying over a different standard applicable to “misdemeanor crimes of domestic violence.” E.g., Villanueva v. United States, 893 F.3d 123, 128–29 (2d Cir. 2018) (citing United States v. Castleman, 572 U.S. 157, 170 (2014)).
[106]. E.g., Nijhawan v. Holder, 557 U.S. 29, 32 (2009) (finding portion of immigration-law fraud provision “refer[red] to the particular circumstances” of conduct, not the crime as defined); see also Das, supra note 24, at 1719–22 (critiquing Nijhawan for ignoring historic, immigration-specific categorical approach considerations).
[107]. E.g., Mathis v. United States, 136 S. Ct. 2243, 2253 (2016) (reiterating that courts may not examine which “alternative factual scenarios” served as means of violating one element of one crime).
[108]. E.g., Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 1572–73 (2017) (deeming California statute categorically overbroad compared to generic definition of sexual abuse offense).
[109]. United States v. Davis, 139 S. Ct. 2319, 2325–36 (2019).
[110]. See United States v. Lopez, 514 U.S. 549, 561 n.3 (1995).
[111]. See Beck, supra note 80, at 1020–21.
