- Two recent Ninth Circuit cases place strict limits on how court records can be used under the modified categorical approach, making clear that records can be used only to identify necessary elements, not extraneous facts that aren’t elements.
- One of the cases establishes that it isn’t enough for there to be a statement in the factual basis that narrows the offense; at least in most cases, the charging document has to narrow the offense as well.
- The other case establishes that a court can consider statements about the factual basis made by a person other than the defendant, like his attorney or a prosecutor, only if the defendant assented to the statements.
NOW THE BLOG:
In my very first post on Descamps (see “The Rest of My Own Little Supreme Court Update” in the July 2013 link at the right), I suggested Descamps not only limited when court records could be used under the modified categorical approach but also how they could be used. I suggested Descamps allowed the use of court records only to directly identify the elements of the offense to which the defendant had pled guilty. I suggested court records couldn’t be used to draw inferences about the offense to which the defendant had pled guilty.
Two recent Ninth Circuit opinions – United States v. Marcia-Acosta, 780 F.3d 1244 (9th Cir. 2015) and United States v. Sahagun-Gallegos, ___ F.3d ___, 2015 WL 1591446 (9th Cir. April 10, 2015) (the latter case won by our own Davina Chen in the Central District) – take giant steps toward this position. In Marcia-Acosta, the court held a defense attorney’s statement that the defendant had “intentionally” assaulted a victim wasn’t enough to narrow the offense when the charging document to which the defendant was pleading didn’t narrow the offense in this way. See id. at 1250-56. In Sahagun-Gallegos, the court held that (1) a defense attorney’s statement the defendant had pointed a gun at a cashier and (2) a detective’s testimony contained in a grand jury transcript the defense attorney agreed could also be considered as part of the factual basis were insufficient to narrow an overbroad assault statute to the qualifying alternative of intentionally placing another person in fear of physical injury. See id., 2015 WL 1591446, at *4-6.
These opinions establish several general principles beyond their case-specific facts. First, Marcia-Acosta establishes that a mere statement in the plea colloquy doesn’t narrow the offense of conviction if the charging document or plea agreement doesn’t narrow the offense. The opinion noted the defense attorney’s statement that the defendant had acted intentionally was “the only support for the district court’s determination that [the defendant’s] prior conviction qualified as a crime of violence,” id. at 1252 (emphasis in original), and distinguished the prior case of United States v. Cabrera-Perez, 751 F.3d 1000 (9th Cir. 2014) because the plea colloquy in Cabrera-Perez “referred directly back to the charging language of the complaint, which had ‘narrow[ed] the charge to generic limits,’” Marcia-Acosta, 780 F.3d at 1252 (quoting Cabrera-Perez, 751 F.3d at 1006). The court then explained, harkening back to Descamps, why the defense attorney’s statement alone was insufficient.
As a matter of state law, [the defendant]’s conviction under [Arizona Revised Statutes] § 13-1203(A)(1) could have been supported by a finding of recklessness. [The defendant] was not required to admit he acted knowingly or intentionally. And the trial judge had no reason to so find; under the circumstances of this case, whether the conviction was for “intentional” or “reckless” aggravated assault would not have altered the conviction nor the sentencing consequences. Thus, it made no difference during the plea hearing whether he acted with one or the other mental state. Like the defendant in Descamps, “[the defendant] may have let [his attorney’s] statement go by, because it was irrelevant to the proceedings [whether he was reckless, knowing, or intentional]. He likely was not thinking about the possibility that his silence could come back to haunt him in [a later] sentencing proceeding.” Descamps, 133 S. Ct. at 2289.
Marcia-Acosta, 780 F.3d at 1252-53 (footnotes omitted). Finally, the opinion concluded with the following summary:
To be clear, Shepard [v. United States, 544 U.S. 13 (2005)] permits district courts to review transcripts of plea colloquies when applying the modified categorical approach, to ascertain the offense to which the defendant pled guilty. See 544 U.S. at 26. If the operative charging document limits the charge to a statutory alternative that meets the generic offense definition, a factual-basis statement at the plea colloquy and the charge, together, can establish the crime of conviction, because that fact then does become essential. Likewise, there may be circumstances in which a factual-basis statement detail, not extraneous to the conviction, unequivocally establishes that the conviction “‘necessarily’ rested on the fact identifying the [offense] as generic.” Shepard, 544 U.S. at 21 (quoting Taylor [v. United States], 495 U.S. [575,] 602 [(1990)]). (Footnote omitted.)
Marcia-Acosta, 780 F.3d at 1255 (emphasis in original). This last caveat may mean the plea colloquy or something else said or found during the plea can be enough in some circumstances, see Marcia-Acosta, 780 F.3d at 1255 n.10 (suggesting statement in factual basis may be enough when alternatives are “mutually exclusive” and one “negate[s] the possibility of the other”), but an overbroad charging document will be at least highly problematic in most cases.
The other opinion – Sahagun-Gallegos – establishes two additional helpful principles. That opinion rejected reliance on the defense attorney’s statement and detective’s grand jury testimony in the prior case for two reasons. First, the court noted that “both this court and the Supreme Court have held that the factual basis for a plea must be assented to by the defendant . . . and there is no indication in the plea hearing transcript that [the defendant] assented to the factual basis provided by his attorney, much less to the police detective’s grand jury testimony.” Id., 2015 WL 1591446, at *5. So a defense attorney statement that might be sufficient under Marcia-Acosta isn’t sufficient if the defendant doesn’t assent to it.
Second, Sahagun-Gallegos reinforces Marcia-Acosta’s recognition that the modified categorical approach permits the use of court records only to identify the elements of the crime the defendant was convicted of.
[E]ven if [the defendant] had assented to the factual basis provided by his attorney, the Supreme Court emphasized in Descamps that the modified categorical approach “retains the categorical approach’s central feature: a focus on elements, rather than the facts, of a crime.” 133 S. Ct. at 2285; see also Marcia-Acosta, 2015 WL 1283771, at *4 (“Consideration of only the elements of the crime of conviction is the pivotal concept in applying the modified categorical analysis.” (internal quotation marks omitted)). When conducting the modified categorical approach, we may not examine a transcript “to try to discern what . . . a plea proceeding revealed[ ] about the defendant’s underlying conduct.” Descamps, 133 S. Ct. at 2288.
Sahagun-Gallegos, 2015 WL 1591446, at *5. The court then went on to provide an explanation very like that in Marcia-Acosta.
The fact-based inquiry advocated by the Government is particularly inappropriate in the plea bargaining context. Descamps cautioned that statements of fact made during a change of plea hearing may be “downright wrong” because a defendant “often has little incentive to contest facts that are not elements of the charged offense.” Id. at 2289. “[W]hen 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.” Id. at 2288. We recently reiterated these principles in Marcia-Acosta, and held that a defense attorney’s factual-basis statement that the defendant acted “intentionally” in violating A.R.S. § 13-1203(A)(1) was insufficient to show that the defendant pleaded guilty to the mens rea element of generic aggravated assault. [780 F.3d at 1251-52, 1255-56]. (Footnote omitted.)
Sahagun-Gallegos, 2015 WL 1591446, at *6. See also Marcia-Acosta, 780 F.3d at 1251 (also noting caution in Descamps that “factual admissions made during a plea hearing may be ‘downright wrong,’ because the defendant ‘often has little incentive to contest facts that are not elements of the charged offense,’ and ‘the defendant may not wish to irk the prosecutor or court by squabbling about superfluous factual allegations’” (quoting Descamps, 133 S. Ct. at 2289)).
To sum up, these cases establish three principles. First, a statement in the factual basis that narrows the offense isn’t enough; at least in most cases, the charging document has to narrow the offense as well. Second, statements about the factual basis by another person like a defense attorney (or, presumably, a prosecutor) can be considered only if the defendant assents to them. Third, and more generally, the Shepard documents can be used only to identify necessary elements, not extraneous facts that aren’t elements.
For some thoughts on how these cases may affect pre-Descamps case law, see next week’s post.