Federal Public Defender

-- Dateline: June 23, 2016

Mathis v United States clarifies (i.e., makes it crystal clear) the difference between the categorical and the modified categorical approach to analyzing a "violent felony."

Today, the Supreme Court issued an opinion in Mathis v. United States, which is another in a long line of cases that flesh out when a court must use the categorical vs. the modified categorical approach in determining whether a state crime can qualify as a predicate “violent felony” under the Armed Career Criminal Act.  The analysis is equally applicable to determinations of whether crimes are predicate “crimes of violence” under the guidelines.

Although the Court explains that the opinion merely restates prior law on the subject, a few reiterations, clarifications, and developments are particularly of note:

    - DO NOT LOOK AT THE UNDERLYING FACTS!!!! The Court once again reiterates that “a sentencing judge may look only to the elements of the offense, not to the facts of the defendant’s conduct.” Slip Op. at 8 (internal citations and quotation marks omitted).  The Court calls this simple a point a “mantra” and the number of times it has had to reiterate this point “downright tedium.”  Id.

    - ELEMENTS ARE WHAT A JURY MUST FIND. The Court is explicit that “elements are the constituent parts of a crime’s legal definition” and are “what the jury must find beyond a reasonable doubt to convict the defendant[.]” Slip Op. at 2 (internal citations and quotation marks omitted).  This is important because there had been some confusion about the difference between elements and means among the lower courts.

    - WHEN IS A STATUTE DIVISIBLE? LOOK AT JUROR UNANIMITY. In the statute at issue in Mathis was Iowa’s burglary statute. The Supreme Court explained that, where state cases make clear that where “a jury need not agree whether the burgled location was a building, other structure, or vehicle” the alternative premises listed are actually alternative factual means and not elements.  Slip Op. at 17.  Thus, where juror unanimity is not required for a certain aspect of the statute, that aspect is an element and the alternatives that don’t require unanimity are means.  For those statutes, the categorical approach applies and the charging documents may not be consulted.

UPSHOT FOR THE DISTRICT OF COLORADO?  The 10th Circuit’s Trent case is no longer good law. Trent rejected the “juror unanimity” requirement to determine whether something is an element of an offense or simply means of committing that offense.  

BONUS ROUND: COLORADO BURGLARY ANALYSIS

In Colorado, the jury instructions require that a person be found to have burgled a “building or occupied structure.” Colo. Jury Instr., Criminal 4-2:03. There is a separate jury instruction on the definition of “building” which is defined as follows:

Colo. Jury Instr., Criminal F:40.  Unanimity in a verdict means only that each juror agrees that each element of the crime charged has been proved to that juror's satisfaction beyond a reasonable doubt. People v. Lewis, 710 P.2d 1110, 1116 (Colo.App.1985).

But unanimity is not required as to the definition of building because the type of building is a means not an element. People v. Vigil, 2015 COA 88M, ¶ 43, as modified on denial of reh'g (Aug. 13, 2015) (Colorado Court of Appeals, Div. VII.) (“Because the prosecution presented a single theory of burglary, the jury was not required to unanimously agree on which building was burglarized. Instead, the jury only needed to agree that Vigil burglarized a building on the charged date at the charged place.”)  Because Colorado burglary therefore is broader than generic burglary (it includes, for example “vehicle[s]” that would not be included in generic burglary) it cannot be used as an ACCA predicate.