Criminal Law MCLE Meeting Attorney Resource Center May 7, 2019

11:45 AM – Noon Welcome/Introductions Jennifer L. Maples, Criminal Law Section Chair

Noon – 1:00 PM Program

Practical Application of the Categorical Approach in Immigration Law, Ana Mencini and Alyssa Aliperta - Ana M. Mencini & Associates, P.C.

Ana Mendez Mencini was licensed in 2001 after graduating from Chicago-Kent College of Law. She is in private practice in the Chicago-area focusing on immigration law and was previously a clinical law professor at Chicago-Kent College of Law.

Alyssa Arriola Aliperta is an associate attorney with Ana M. Mencini & Associates, P.C. Alyssa handles all criminal defense matters and immigration matters where criminal convictions are an issue. Before joining Ana M. Mencini & Assocaites, P.C., Alyssa was an associate with a Chicago-based law firm and exclusively represented clients in criminal defense matters. She attended The University of Texas at Austin where she earned a B.A. in Rhetoric and Writing and a B.S. in Public Relations. She then earned her J.D. from St. Mary’s University School of Law in San Antonio, Texas.

The speakers will briefly review the purpose and use of the categorical approach and then apply it to fact patterns to understand its application.

Next Meeting: 05/17/2019 ‐ Paul DeLuca will speak on Wrongful Convictions, False Confessions & Exonerations

DCBA Events: 5/16/19 - Diversity PRMCLE Seminar - Doubletree, Lisle

6/7/19 - Presidents Ball and Installation - Prairie Landing, West Chicago

6/20/19 - Eleventh Hour PRMCLE Seminar - Granite City, Naperville

8/22/19 - DCBA Golf Outing - Cantigny

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What Are We Missing? A Town Hall Conversation on Diversity & its Impact on the Legal Profession

Thursday, May 16th 2019 DoubleTree by Hilton Lisle Naperville 3003 Corporate W Dr Lisle, IL 60532 1:00pm-5:00pm

Moderator: Hon. Vincent F. Cornelius, 12th Judicial Circuit (Will County) Speakers Joseph Flynn, Associate Director for Academic Affairs - Northern IL University Center for Black Studies Jennifer Adams Murphy, Shareholder and Senior Attorney - Wessels Sherman Alex Karasik, Associate - Seyfarth Shaw LLP Topics for Discussion The Past: Where are we and how did we get there? The Present: How is diversity shaping the current landscape in the workplace? The Future: Where should we go and how do we get there? 2 PRMCLE Hours/1 PRMCLE Diversity & Inclusion (Pending MCLE Board Approval) With Generous Support From

For full agenda and online registration, visit www.dcba.org/diversity

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Note: Please send completed form with payment to DCBA, 126 S. County Farm Rd, Wheaton, IL 60187 or [email protected] Eleventh Hour PRMCLE Seminar Thursday June 20th 2019 Granite City Food & Brewery 1828 Abriter Ct, Naperville

Need additional PRMCLE credits before the June 30th reporting deadline? No Problem! Join us on Thursday June 20th from 1:30pm-5:00pm and earn 2 credits PRMCLE/1 credit PRMCLE Mental Health & Substance Abuse (pending MCLE Board Approval). Our Monthly Happy Hour will follow the seminar at the same location—Granite City Food & Brewery in Naperville Pricing

$20 DCBA Member $10 New Admittee/Government Attorney $45 Non-Member

1:30pm-2:30pm "When Helping Hurts: Compassion Fatigue in the Legal Profession" Speaker: Karen Mills, Strohschein Law Group (1 Credit PRMCLE - Mental Health/Substance Abuse)

2:45pm-3:45pm"Succession Planning" Speaker: Melissa Smart, Litigation Manager & Sen- ior Disciplinary Commission of the Supreme Court of IL- Attorney Registration & Disciplinary Commission (1 Credit PRMCLE)

4:00pm-5:00pm"A Survey on Professionalism: Is Civility a Real Problem?" Speaker: Mary Robinson - Robinson Law Group LLC (1 Credit PRMCLE)

For full agenda and online registration, visit www.dcba.org

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Note: Please send completed form with payment to DCBA, 126 S. County Farm Rd, Wheaton, IL 60187 or [email protected] 5/6/2019

Practical Application of the Categorical Approach

Presenters: Ana M. Mencini & Alyssa A. Aliperta

Why It Matters:

 Defense attorneys have a duty under the Sixth Amendment to advise their noncitizen clients of the potential immigration consequences that may result from a conviction.  Potential immigration consequences include:  Deported from the United States  Denied entry (or re-entry) into the United States  Deprived from seeking certain immigration benefits  Consequences are not always immediate and will likely become an issue long after the noncitizen has served his/her sentence.  Defense attorneys are in a better position to minimize the above consequences.

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Immigration Consequences Will Depend On  The elements of the crime  The nature of the offense  The potential sentence  The actual sentence imposed  Whether the person has other convictions

Conviction Defined

 Under § 101(a)(48) of the Immigration and Nationality Act, a “conviction” is defined as: A formal judgment of guilty of the [noncitizen] entered by a court or, if adjudication of guilt has been withheld, where – 1. A judge or jury has not found the alien guilty or the alien has entered a plea of guilty or nolo contendere or has admitted sufficient facts to warrant a finding of guilt, and 2. The judge has ordered some form of punishment, penalty, or restraint on the alien’s liberty to be imposed.

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True or False – Pre-Trial Diversion

“Successful completion of the program [will result in the State vacating] the guilty plea and dismissing the pending charges.”

 True or False - Dismissal under the pre-trial diversion program means no conviction under state and immigration law?

True or False – Expungement or Sealing “Expunging a criminal record erases the conviction as if it never existed.”

 True or False – Immigration officials cannot see, or request expunged or sealed records, therefore, no conviction under immigration law?

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True or False – Misdemeanor Offenses “Maximum sentence for a Class A misdemeanor is 364 days in county jail.”

 True or False – Non-violent, relatively minor misdemeanor offenses under state law have no immigration consequences?

Comparing Oranges to Apples

 State and federal laws vary, so a misdemeanor or felony in Illinois may not be recognized as such under federal law.  The Immigration and Nationality Act (“INA”) does not distinguish between felony and misdemeanor crimes; instead, crimes are categorized by the type of conduct involved  How do courts compare state laws with federal laws?

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Categorical Approach – Big Picture

The categorical approach is used to determine whether a conviction falls within an enumerated category of crime under federal law that triggers removability or inadmissibility under the INA.

INA § 237(a) - Deportability Grounds:

A conviction for any of the following may result in deportation of a noncitizen who already has lawful admission status, such as a lawful permanent resident or refugee:  Crime Involving Moral Turpitude (“CIMT”)  Multiple CIMT  Aggravated Felony  Controlled Substance Offense

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INA § 237 (a) - Inadmissibility Grounds:

A conviction or admission of any of the following may prevent a noncitizen from being able to obtain lawful admission status in the U.S. or from being able to return to the U.S. from a trip abroad:  CIMT  Controlled Substance Offense  Prostitution  Conviction of two or more offenses of any type with an aggregate prison sentence of 5 years

Classification of Crimes Use the categorical approach to determine whether the statute of conviction falls under one of the following:  Crime Involving Moral Turpitude  Aggravated Felony  Other Deportability Ground

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Categorical Approach - 3 Steps

Under the categorical approach, courts analyze state and federal offenses by addressing the following:  Is there a categorical match?  Is the statute of conviction divisible?  If the statute is divisible, do the documents in the record of conviction establish which crime the noncitizen was convicted of (i.e., the modified categorical approach)?

Categorical Match - No Facts Allowed

 Is the state offense comparable to an offense listed in the INA?  Do not look at the facts of the case

“Under this approach we look not to the facts of the particular prior case, but instead to whether the state statute defining the crime of conviction categorically fits within the generic federal definition . . . .” Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013)

 The offenses must be viewed in the abstract to see whether the state statute shares the nature of the federal offense that serves as a point of comparison

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Categorical Match – Compare Elements

 To define a crime, you must identify its elements  Elements are the constituent parts of a crime’s legal definition—the things the prosecution must prove to sustain a conviction  What you’ll need:  Statue of conviction  Jury Instructions  State and Federal Case Law Interpreting Statute or Common Law Offense

Categorical Match – Narrow or Overbroad?

“Because we examine what the state conviction necessarily involved, not the facts underlying the case, we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized, and then must determine whether even those acts are encompassed by the generic federal offense.” Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013).

 Once you define the elements for both the federal generic definition and the state statute, ask yourself:

“Does the statute of conviction penalize conduct the federal offense does not?”

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Example: Burglary

FEDERAL STATE (1) Unlawful entry or remaining in (1) Unlawful entry (2) A building or other structure (2) Into a building (3) With intent to commit a crime (3) With intent to commit a crime

 Does the statute of conviction penalize conduct the federal offense does not?  If the elements of the state offense match or are narrower than the applicable federal definition, then the inquiry is over.

Example: Burglary

FEDERAL STATE (1) Unlawful entry or remaining in (1) Knowingly enters unlawfully or remains unlawfully (2) A building or other structure (2) In a building or inhabitable structure, including a vehicle (3) With intent to commit a crime (3) For the purpose of committing a crime therein

 Does the statute of conviction penalize conduct the federal offense does not?  If it does, then the question becomes: is this conduct actually prosecuted under the statute of conviction (i.e., the realistic probability test)?

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Categorical Match – Realistic Probability Test  Even if the state statute criminalizes conduct beyond what is penalized under the federal statute, the Supreme Court has held that a noncitizen cannot apply “legal imagination” to the state offense. “[T]here must be a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the generic definition of a crime.” Moncrieffe v. Holder, 133 S.Ct. 1678, 1684-85 (2013).

 What to use to demonstrate a realistic probability of prosecution:  Published decisions  Unpublished decisions  Noncitizen may show that the statute was so applied in his own case

Categorical Match – In a Nutshell

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Divisibility – Multiple Crimes or Multiple Ways of Committing One Crime?

 The categorical approach is an elements-based inquiry, and “[t]he comparison of elements that the categorical approach requires is straightforward when a statute sets out a single set of elements to define a single crime.” Mathis v. United States, 136 S.Ct. 2243, 2248 (2016).  Great, but what if the statute lists elements in the alternative that define different crimes? What if a statute sets out a single set of elements, but defines different ways of committing a single crime?  Obviously, there are statutes that “have a more complicated structure making the comparison of elements harder.” Mathis v. United States, 136 S.Ct. 2243, 2248-49 (2016).  In order to properly execute the categorical approach, it is imperative, especially when dealing with a “complicated” statute, to identify whether the listed items within the statute are:  Elements listed in the alternative; or  Different ways of committing a single crime (i.e., means)

Divisibility – Elements or Means?

 A statute is characterized as either divisible or indivisible under the categorical approach:  If the items listed are elements, then the statute is said to be divisible.  If the items listed are means, then the statute is said to be indivisible.  The distinction between divisible or indivisible, will dictate whether a court should continue forward and examine the record of conviction under the modified categorical approach.  A court can only move forward and examine the record of conviction, if and only if, the statute is divisible.

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Divisibility – Strict Divisibility Test

 A statute is divisible if:  The statutory language sets out multiple discrete elements in the alternative (i.e., the statute must use the word “or”);  At least one, but not all, of the offenses created by these alternatives is a categorical match (i.e., comes within) to the federal generic definition; and  In every case, a jury would have to agree unanimously between these alternatives in order to find the defendant guilty (i.e., the jury unanimity requirement)

If any of these criteria are not met, the statutory alternatives are not elements and do not create different offenses, which means the statute is not divisible (i.e., indivisible)

Divisibility – One Element. Different Means.

 Not all “alternatively phrased” statutes list “multiple elements disjunctively … instead [they enumerate] various factual means of committing a single element.” Mathis v. United States136 S.Ct. 2243, 2249 (2016).  A list may “merely [specify] diverse means of satisfying a single element of a single crime–or otherwise said, spells out various factual ways of committing some component of the offense . . . . ” Mathis v. United States136 S.Ct. 2243, 2249 (2016).  The distinction between elements and means, will often turn on whether the statute carries a jury unanimity requirement (also applies to cases where the conviction was obtained through a guilty plea (See Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005))).

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Divisibility – Jury Unanimity Requirement

 How do I know if the statute of conviction has a jury unanimity requirement?  Look at case law  Look at jury instructions  Look to the language of the statute

“A prosecutor charging a violation of a divisible statute must generally select the relevant element from its list of alternatives … And the jury, as instructions in the case will make clear, must find that element, unanimously and beyond a reasonable doubt.” Descamps v. United States, 133 S.Ct. 2276, 2290, 186 L.Ed.2d 438, 81 USLW 4490 (2013).

 “Means” (indivisible statute) includes  A list of “illustrative examples”  “Elements” (divisible statute) includes  Different sentences for different conduct

Divisibility – No Facts Allowed

“How a given defendant actually perpetrated the crime–what we have referred to as the underlying brute facts or means of commission–make no difference; even if his conduct fits within the generic offense, the mismatch of elements saves the defendant … Those longstanding principles, and the reasoning that underlies them, apply regardless of whether a statute omits or instead specifies alternative possible means of commission. The itemized construction gives a sentencing court no special warrant to explore the facts of an offense, rather than to determine the crime’s elements and compare them with the generic definition.” Mathis v. United States, 136 S.Ct. 2243, 2251 (2016).

 The noncitizen’s actions are irrelevant when determining whether a statute is divisible or indivisible.  The key is elements, not the facts.

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Divisibility – In a Nutshell

Record of Conviction – Modified Categorical Approach

The modified categorical approach only applies if the statute is divisible.

 When a statute lists elements in the alternative, courts apply the modified categorical approach to determine which “alternative element” served as the basis of conviction.  Courts may consult a “limited class of documents [known as the record of conviction] to determine what crime, with what elements, a [noncitizen] was convicted of.” Mathis v. United States, 136 S.Ct. 2243, 2249. (2016).

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Beyond the Record of Conviction - The Old (and Excessively) Modified Categorical Approach

“[T]he modified categorical approach serves–and serves solely–as a tool to identify the elements of the crime of conviction when a statute’s disjunctive phrasing renders one (or more) of them opaque.” Mathis v. United States, 136 S.Ct. 2243, 2251 (2016).

 Prior to Mathis, Moncrieffe, and Descamps, courts would ignore the divisibility inquiry and conduct a fact-based inquiry under the guise of the modified categorical approach.  For example, courts would examine the record of conviction to determine whether there was “evidence [of] a crime that in fact involved [the generic federal definition]” and if the record of conviction was also inconclusive, courts would “consider evidence beyond the formal record of conviction.” Garcia-Martinez v. Barr, No. 18-1797, pg. 6 (7th Cir. 2019).

Record of Conviction – It’s a Tool, Not a Weapon

 Under this approach, courts were considering police reports and complaint applications (i.e., evidence beyond the formal record of conviction) to assess the underlying facts of the case and finding a “categorical match” when the defendant’s actual conduct met the federal generic definition  This was extremely problematic, because it completely contradicted the purpose of the categorical approach, which has always focused on the elements of an offense, not the underlying facts  In Descamps, Moncrieffe, and Mathis, the Court emphasized that the modified categorical approach “acts not as an exception, but instead as a tool [to applying the categorical approach].” Descamps v. United States, 133 S.Ct. 2276, 2285 (2013).

“All the modified categorical approach adds is a mechanism for making that comparison when a statute lists multiple, alternative elements, and so effectively creates several different crimes.” Descamps v. United States, 133 S.Ct. 2276, 2285 (2013).

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Record of Conviction – What’s Included?

 In order to identify what alternative element served as the basis of conviction, courts can examine certain, limited documents referred to as the record of conviction.  Generally, the Supreme Court stated that the record of conviction by plea consists of the following:  Statutory definition  Charging document  Written plea agreement  Transcript of plea colloquy  Any explicit factual finding by the trial judge to which the defendant assented  Courts have agreed that pre-sentence reports, preliminary hearing transcripts, and police reports are not part of the record of conviction unless the defense explicitly stipulated that they contain the factual basis for the plea.  The record of conviction by jury includes:  Charging document  Jury instructions

Record of Conviction – Possible Outcomes

 If after reviewing the record of conviction, the court identifies what alternative element the defendant was convicted of, then the court applies the categorical approach to that alternative.  If the record of conviction is inconclusive, then the outcome will depend on whether ICE is alleging the noncitizen is deportable or if the noncitizen is proving eligibility for relief.  Deportability  ICE always has the burden of producing a reviewable record that shows that a conviction under a divisible statute was for a deportable offense.  Eligibility for Relief  The noncitizen bears the burden of establishing his eligibility for relief, therefore an inconclusive record does not meet the noncitizen’s burden.

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Defense Goals

 We want to argue:  The generic definition is narrow and specific; and  The minimum conduct prosecuted under the state statute does not come within the generic definition  We then want to establish that the criminal statute is indivisible, because if the statute is both overbroad and indivisible, then the analysis stops and the noncitizen wins

Example: UUW/Felon – Categorical Match

Client is in removal proceedings. He has two prior felony convictions, including a conviction for UUW/Felon in violation of 720 ILCS 5/24-1.1(a). ICE is alleging that Client’s UUW/Felon conviction makes him removable as having been convicted of an “aggravated felony” in violation of 18 U.S.C. § 922(g)(1). Section 922(g)(1) bars anyone with a felony conviction from possessing a firearm. See Rodriguez-Contreras v. Session, 873 F.3d 579 (7th Cir. 2017).

Start By Asking:

 What must the government prove to sustain a conviction under § 922(g)(1)?  Without looking at the facts, what must the state prove to sustain a conviction under 720 ILCS 5/24-1.1(a)?

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Example: UUW/Felon – Categorical Match

FEDERAL STATE (1) Possession of (1) Possession of (2) A firearm which includes any weapon (2) A firearm which includes any device designed to expel a projectile by the action designed to expel a projectile or projectiles of an explosive by the action of an explosion, expansion of gas or escape of gas (3) By someone who has been convicted of (3) By someone who has been convicted of a felony a felony

 Does the statute of conviction penalize conduct the federal offense does not?  Yes. After reviewing the relevant statutory provisions, the state statute technically penalizes possession of a weapon that expels a projectile using compressed air such as a pneumatic gun (e.g., air rifle), whereas the federal generic definition does not. The federal generic definition, only criminalizes possession of a weapon that expels a projectile as a result of an explosion.

Example: UUW/Felon – Categorical Match

 Can we point to a case where a felon was actually prosecuted for and convicted of possessing an air rifle (or some other type of pneumatic weapon)?  Yes. People v. Thompson, 2017 IL App (3d) 160503.

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Example: UUW/Felon – Where We Are in Our Analysis

Example: UUW/Felon – Divisibility

 Does 720 ILCS 5/24-1.1(a) list multiple crimes (i.e., elements) or list multiple ways (i.e., means) of committing a single crime of possession of a weapon by a felon?  Does the statutory language set out multiple discrete elements in the alternative by using the word “or”?  Yes. Firearm includes:  Any device designed to expel a projectile by the action of an explosion;  Any device designed to expel a projectile through the expansion of gas; or  Any device designed to expel a projectile through the escape of gas.

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Example: UUW/Felon – Divisibility

 Does at least one of the offenses created by these alternatives match an offense under the federal generic definition?  Yes. A person is guilty under both the state statute and federal generic definition if that person was a felon in possession of a device designed to expel a projectile by the action of an explosion.  In every case, would a jury have to agree unanimously between these alternatives in order to find the defendant guilty?  No. Looking at the jury instructions, all the prosecution would have to prove is that the defendant knowingly possessed a firearm after having previously been convicted of a felony offense. The statute does not create a separate offense for a felon in possession of a pneumatic gun. Half of the jury could believe he had possession of a pistol, while the other half could believe it was an air rifle and still find the defendant guilty of possessing a firearm.

Example: UUW/Felon – Where We Are in Our Analysis

X X

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Final Thoughts

 Understanding how to apply the categorical approach can help you assess a noncitizen Client’s potential immigration consequences.  Always be mindful of what is being made part of the record, as that could come back to haunt your noncitizen Client later down the road.  When in doubt, call an immigration attorney.

Still Have Questions?

If you have any questions about how to apply the categorical approach or questions about classifying potential convictions for your noncitizen clients, feel free to email us directly at [email protected] or [email protected]. Thank you!

Ana M. Mencini & Associates, P.C. 550 E. Devon Avenue, Suite 160 Itasca, Illinois 60143 T (630) 875-1700 F (630) 875-1744 www.mencinilaw.com

21 Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

495 U.S. 575 jury instructions actually required the jury to 110 S.Ct. 2143 find all the elements of generic burglary in 109 L.Ed.2d 607 order to convict the defendant. Pp. 581-602. Arthur Lajuane TAYLOR, Petitioner (a) The convicting State's definition of v. "burglary" cannot control the word's meaning under § 924(e), since that would allow UNITED STATES. sentence enhancement for identical conduct in different States to turn upon whether the No. 88-7194. particular States happened to call the conduct Argued Feb. 28, 1990. "burglary." That result is not required by § Decided May 29, 1990. 924(e)'s omission of a "burglary" definition Syllabus contained in a prior version of the statute absent a clear indication that Congress When respondent Taylor pleaded guilty intended by the deletion to abandon its to possession of a firearm by a convicted felon general approach of using uniform categorical in violation of 18 U.S.C. § 922(g)(1), he had definitions for predicate offenses. "Burglary" four prior convictions, including two for in § 924(e) must have some uniform second-degree burglary under Missouri law. definition independent of the labels used by The Government sought to apply § 924(e), the various States' criminal codes. Cf. United which, inter alia, (1) provides a sentence States v. Nardello, 393 U.S. 286, 293-294, 89 enhancement for a "person" convicted under S.Ct. 534, 538-539, 21 L.Ed.2d 487. Pp. 590- § 922(g) who "has three previous convictions . 592. . . for a violent felony," and (2) defines "violent felony" as "(B) . . . any crime Page 576 punishable by imprisonment for a term exceeding one year" that "(i) has as an (b) Nor is § 924(e) limited to the element the use, attempted use, or threatened common-law definition of "burglary"—i.e., a use of physical force against [another's] breaking and entering of a dwelling at night person," or "(ii) is burglary [or other specified with intent to commit a felony. Since that offenses] or otherwise involves conduct that definition has been expanded in most States presents a serious potential risk of physical to include entry without a "breaking," injury to another." In imposing an enhanced structures other than dwellings, daytime sentence upon Taylor, the District Court offenses, intent to commit crimes other than rejected his contention that, because his felonies, etc., the modern crime has little in burglary convictions did not present a risk of common with its common-law ancestor. physical injury under § 924(e)(2)(B)(ii), they Moreover, absent a specific indication of should not count. The Court of Appeals congressional intent, a definition so obviously affirmed, ruling that the word "burglary" in § ill suited to the statutory purpose of 924(e)(2)(B)(ii) "means 'burglary' however a controlling violent crimes by career offenders state chooses to define it." cannot be read into § 924(e). The definition's arcane distinctions have little relevance to Held: An offense constitutes "burglary" modern law enforcement concerns, and, under § 924(e) if, regardless of its exact because few of the crimes now recognized as definition or label, it has the basic elements of burglaries would fall within the definition, its a "generic" burglary—i.e., an unlawful or adoption would come close to nullifying the unprivileged entry into, or remaining in, a effect of the statutory term "burglary." Under building or other structure, with intent to these circumstances, the general rule of lenity commit a crime—or if the charging paper and Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

does not require adoption of the common-law phrase most likely refers to the statutory definition. Pp. 592-596. elements of the offense rather than to the

(c) Section 924(e) is not limited to those Page 577 burglaries that involve especially dangerous conduct, such as first-degree or aggravated facts of the defendant's conduct; since the burglaries. If that were Congress' intent, there legislative history reveals a general would have been no reason to add the word categorical approach to predicate offenses; "burglary" to § 924(e)(2)(B)(ii), since that and since an elaborate factfinding process provision already includes any crime that regarding the defendant's prior offenses "involves conduct that presents a serious would be impracticable and unfair. The potential risk" of harm to persons. It is more categorical approach, however, would still likely that Congress thought that burglary and permit the sentencing court to go beyond the the other specified offenses so often mere fact of conviction in the narrow range of presented a risk of personal injury or were cases in which the indictment or information committed by career criminals that they and the jury instructions actually required the should be included even though, considered jury to find all of the elements of generic solely in terms of their statutory elements, burglary even though the defendant was they do not necessarily involve the use or convicted under a statute defining burglary in threat of force against a person. Moreover, broader terms. Pp. 599-602. the choice of the unqualified language "is burglary . . . or otherwise involves" dangerous (f) The judgment must be vacated and conduct indicates that Congress thought that the case remanded for further proceedings, ordinary burglaries, as well as those involving since, at the time of Taylor's convictions, most especially dangerous elements, should be but not all of the Missouri second-degree included. Pp. 596-597. burglary statutes included all the elements of generic burglary, and it is not apparent from (d) There thus being no plausible the sparse record which of those statutes were alternative, Congress meant by "burglary" the the bases for the convictions. P. 602. generic sense in which the term is now used in most States' criminal codes. The fact that 864 F.2d 625, (CA 8 1989) vacated and this meaning is practically identical to the remanded. omitted statutory definition is irrelevant. That definition was not explicitly replaced with a BLACKMUN, J., delivered the opinion different or narrower one, and the legislative of the Court, in which REHNQUIST, C.J., and history discloses that no alternative was ever BRENNAN, WHITE, MARSHALL, STEVENS, discussed. The omission therefore implies, at O'CONNOR, and KENNEDY, JJ., joined, and most, that Congress simply did not wish to in all but Part II of which SCALIA, J., joined. specify an exact formulation. Pp. 598-599. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. (e) The sentencing court must generally 603. adopt a formal categorical approach in applying the enhancement provision, looking Bruce Dayton Livingston, J. Bennett only to the fact of conviction and the statutory Clark, St. Louis, Mo., for petitioner. definition of the predicate offense, rather Michael R. Lazerwitz, Washington, D.C., than to the particular underlying facts. That for respondent. approach is required, since, when read in context, § 924(e)(2)(B)(ii)'s "is burglary" Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

Justice BLACKMUN delivered the otherwise involves conduct that presents a opinion of the Court. serious potential risk of physical injury to another." In this case we are called upon to determine the meaning of the word In January 1988, in the United States "burglary" as it is used in § 1402 of Subtitle I District Court for the Eastern District of (the Career Criminals Amendment Act of Missouri, petitioner Arthur Lajuane Taylor 1986) of the Anti-Drug Abuse Act of 1986, 18 pleaded guilty to one count of possession of a U.S.C. § 924(e). This statute provides a firearm by a convicted felon, in violation of § sentence enhancement for a defendant who is 922(g)(1). At the time of his plea, Taylor had convicted under 18 U.S.C. § 922(g) (unlawful four prior convictions. One was for robbery, possession of a one was for assault, and the other two were for second-degree burglary under Missouri Page 578 law.1 firearm) and who has three prior convictions Page 579 for specified types of offenses, including "burglary." The Government sought sentence enhancement under § 924(e). Taylor I conceded that his robbery and assault convictions properly could be counted as two Under 18 U.S.C. § 922(g)(1), it is of the three prior convictions required for unlawful for a person who has been convicted enhancement, because they involved the use previously for a felony to possess a firearm. A of physical force against persons, under § defendant convicted for a violation of § 924(e)(2)(B)(i). Taylor contended, however, 922(g)(1) is subject to the sentence- that his burglary convictions should not count enhancement provision at issue, § 924(e): for enhancement, because they did not involve "conduct that presents a serious "(1) In the case of a person who violates potential risk of physical injury to another," section 922(g) of this title and has three under § 924(e)(2)(B)(ii). His guilty plea was previous convictions by any court . . . for a conditioned on the right to appeal this issue. violent felony or a serious drug offense, or The District Court, pursuant to § 924(e)(1), both . . . such person shall be fined not more sentenced Taylor to 15 years' imprisonment than $25,000 and imprisoned not less than without possibility of parole. fifteen years. . . . The United States Court of Appeals for "(2) As used in this subsection— the Eighth Circuit, by a divided vote, affirmed Taylor's sentence. It ruled that, because the ..... word "burglary" in § 924(e)(2)(B)(ii) "means 'burglary' however a state chooses to define "(B) the term 'violent felony' means any it," the District Court did not err in using crime punishable by imprisonment for a term Taylor's Missouri convictions for second- exceeding one year . . . that— degree burglary to enhance his sentence. 864 F.2d 625, 627 (1989). The majority relied on "(i) has as an element the use, their court's earlier decision in United States attempted use, or threatened use of physical v. Portwood, 857 F.2d 1221 (1988), cert. force against the person of another; or denied, 490 U.S. 1069, 109 S.Ct. 2073, 104 "(ii) is burglary, arson, or L.Ed.2d 638 (1989). We granted certiorari, extortion, involves use of explosives, or 493 U.S. 889, 110 S.Ct. 231, 107 L.Ed.2d 183 Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

(1989), to resolve a conflict among the Courts imprisonment for 15 years. Burglary was of defined in the statute itself as "any felony consisting of entering or remaining Page 580 surreptitiously within a building that is property of another with intent to engage in Appeals concerning the definition of burglary conduct constituting a Federal or State for purposes of § 924(e).2 offense." § 1202(c)(9).

The word "burglary" has not been given The Act was intended to supplement the a single accepted meaning by the state courts; States' law enforcement efforts against the criminal codes of the States define "career" criminals. The House Report burglary in many different ways. See United accompanying the Act explained that a "large States v. Hill, 863 F.2d 1575, 1582, and n. 5 percentage" of crimes of theft and violence (CA11 1989) (surveying a number of burglary "are committed by a very small percentage of statutes). On the face of the federal repeat offenders," and that robbery and enhancement provision, it is not readily burglary are the crimes most frequently apparent whether Congress intended committed by these career criminals. "burglary" to mean whatever the State of the H.R.Rep. No. 98-1073, pp. 1, 3 (1984) defendant's prior conviction defines as (H.Rep.); see also S.Rep. No. 98-190, p. 5 burglary, or whether it intended that some (1983) (S.Rep.), U.S.Code Cong. & uniform definition of burglary be applied to Admin.News 1984, p. 3182. The House all cases in which the Government seeks a § Report quoted the sponsor of the legislation, 924(e) enhancement. And if Congress Senator Specter, who found burglary one of intended that a uniform definition of burglary the "most damaging crimes to society" be applied, was that definition to be the because it involves "invasion of [victims'] traditional common-law definition,3 or one of homes or workplaces, violation of their the broader "generic" definitions articulated privacy, and loss of their most personal and in the Model Penal Code and in a predecessor valued possessions." H.Rep., at 3, U.S.Code statute to § 924(e), or some other definition Cong. & Admin.News 1984, p. 3663. specifically tailored to the purposes of the Similarly, the Senate Report stated that enhancement statute? burglary was included because it is one of "the most common violent street crimes," and Page 581 "[w]hile burglary is sometimes viewed as a non-violent crime, its character can change II rapidly, depending on the fortuitous presence of the occupants of the home when the Before examining these possibilities, we burglar enters, or their arrival while he is still think it helpful to review the background of § on the premises." S.Rep., at 4-5. 924(e). Six years ago, Congress enacted the first version of the sentence-enhancement Page 582 provision. Under the Armed Career Criminal Act of 1984, Pub.L. 98-473, ch. 18, 98 Stat. The only explanation of why Congress 2185, 18 U.S.C.App. § 1202(a) (1982 ed., chose the specific definition of burglary Supp. III) (repealed in 1986 by Pub.L. 99- included in § 1202 appears in the Senate 308, § 104(b), 100 Stat. 459), any convicted Report: felon found guilty of possession of a firearm, who had three previous convictions "for "Because of the wide variation among robbery or burglary," was to receive a states and localities in the ways that offenses mandatory minimum sentence of are labeled, the absence of definitions raised Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

the possibility that culpable offenders might the Senate by Senator Specter and in the escape punishment on a technicality. For House by Representative Wyden, provided instance, the common law definition of that any "crime of violence" would count burglary includes a requirement that the toward the three prior convictions required offense be committed during the nighttime for a sentence enhancement, and defined and with respect to a dwelling. However, for "crime of violence" as "an offense that has as purposes of this Act, such limitations are not an element the use, attempted use, or appropriate. Furthermore, in terms of threatened use of physical force against the fundamental fairness, the Act should ensure, person or property of another," or any felony to the extent that it is consistent with the "that, by its nature, involves a substantial risk prerogatives of the States in defining their that physical force against the person or own offenses, that the same type of conduct is property of another may be used in the course punishable on the Federal level in all cases." of committing the offense." S. 2312, 99th S.Rep., at 20. Cong., 2d Sess. (1986); H.R. 4639, 99th Cong., 2d Sess. (1986). The second bill, In 1986, § 1202 was recodified as 18 introduced in the House by Representatives U.S.C. § 924(e) by the Firearms Owners' Hughes and McCollum, took a narrower Protection Act, Pub.L. 99-308, § 104, 100 approach, restricting the crimes that would Stat. 458. The definition of burglary was count toward enhancement to "any State or amended slightly, by replacing the words "any Federal felony that has as an element the use, felony" with "any crime punishable by a term attempted use, or threatened use of physical of imprisonment exceeding one year and. . . ." force against the person of another." H.R. 4768, 99th Cong., 2d Sess. (1986). Only five months later, § 924(e) again was amended, into its present form, by § 1402 When Senator Specter introduced S. of Subtitle I (the Career Criminals 2312 in the Senate, he stated that since the Amendment Act of 1986) of the Anti-Drug enhancement provision had been in effect for Abuse Act of 1986, 100 Stat. 3207-39. This a year and a half, and "has been successful amendment effected three changes that, with the basic classification of robberies and taken together, give rise to the problem burglaries as the definition for 'career presented in this case. It expanded the criminal,' the time has come to broaden that predicate offenses triggering the sentence definition so that we may have a greater enhancement from "robbery or burglary" to sweep and more effective use of this "a violent felony or a serious drug offense"; it important statute." 132 Cong.Rec. 7697 defined the term "violent felony" to include (1986). Similarly, during the House and "burglary"; and it deleted the pre-existing Senate hearings on the bills, the witnesses definition of burglary. reiterated the concerns that prompted the original enactment of the enhancement The legislative history is silent as to provision in 1984: the large proportion of Congress' reason for deleting the definition of crimes committed by a small number of burglary. It does reveal, however, the general career offenders, and the inadequacy of state purpose and approach of the Career prosecutorial resources to address this Criminals Amendment Act of 1986. Two bills problem. See Armed Career Criminal were proposed; from Legislation: Hearing on H.R. 4639 and H.R. 4768 before the Subcommittee on Crime of Page 583 the House Committee on the Judiciary, 99th Cong., 2d Sess. (1986) (House Hearing); these the current statutory language emerged Armed Career Criminal Act Amendments: as a compromise. The first bill, introduced in Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

Page 584 property as most burglary offenses" and thus "inadvertently narrow[ing] the scope of the Hearing on S. 2312 before the Subcommittee present Armed Career Criminal Act," and on Criminal Law of the Senate Committee on went on to say: the Judiciary, 99th Cong., 2d Sess. (1986) (Senate Hearing). The issue under Page 585 consideration was uniformly referred to as "expanding" the range of predicate offenses. "Now the question has been raised, House Hearing, at 8 ("[A]ll of us want to see well, what crimes against property should be the legislation expanded to other violent included? We think, burglary, of course; offenders and career drug dealers") arson; extortion; and various explosives (statement of Representative Wyden); id., at offenses. . . . 11 ("I think we can all agree that we should expand the predicate offenses") (statement of "The one problem I see in using a Representative Hughes); id., at 14 (statement specific generic term like burglary or arson— of Deputy Assistant Attorney General James that's fine for those statutes—but a lot of Knapp); id., at 32-33 (statement of Bruce these newer explosive offenses don't have a Lyons, President-elect of National Association single generic term that covers them, and that of Criminal Defense Lawyers); id., at 44 is something that the committee may want to (statement of Senator Specter); Senate be very careful about in coming up with the Hearing, at 1 ("The time seems ripe in many final statutory language. quarters, including the Department of Justice, to expand the armed career criminal "It is these crimes against bill to include other offenses") (statement of property—which are inherently dangerous— Senator Specter); id., at 15 (statement of that we think should be considered as United States Attorney Edward S. G. Dennis, predicate offenses." House Hearing, at 15. Jr.); id., at 20 (statement of David Dart In response to a question by Queen of the Department of the Treasury); Representative Hughes as to the justification id., at 49 and 55 (statement of Ronald D. for retaining burglary as a predicate offense, Castille, District Attorney, Philadelphia). Mr. Knapp explained that "your typical career Witnesses criticized the narrower bill, criminal is most likely to be a burglar," and H.R. 4768, for excluding property crimes, that "even though injury is not an element of pointing out that some such crimes present a the offense, it is a potentially very dangerous serious risk of harm to persons, and that the offense, because when you take your very career offenders at whom the enhancement typical residential burglary or even your provision is aimed often specialize in property professional commercial burglary, there is a crimes, especially burglary. See House very serious danger to people who might be Hearing, at 9 and 12 ("I would hope . . . that at inadvertently found on the premises." Id., at least some violent felonies against property 26. He qualified his remarks, however, by could be included"; "people . . . make a full- saying: "Obviously, we would not consider, as time career and commit hundreds of prior convictions, what I would call burglaries") (statements of Representative misdemeanor burglaries, or your technical Wyden); id., at 49-53 (statement of Mr. burglaries, or anything like that." Ibid. Castille). The testimony of Mr. Knapp focused Representative Hughes put the same specifically on whether the enhancement question to the next witness, Mr. Lyons. The provision should include burglary as a witness replied: predicate offense. He criticized H.R. 4768 for excluding "such serious felonies against Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

"When you use burglary, burglary is been transferred a firearm." House Hearing, going back to really what the original at 41. legislative history and intent was, to get a hold of the profit motive and to the recidivist After the House hearing, the armed career criminal. The NACDL really has Subcommittee drafted a compromise bill, no problem with burglary as a predicate H.R. 4885. This bill included "violent felony" offense." Id., at 38. as a predicate offense, and provided that

In his prepared statement for the "the term 'violent felony' means any Subcommittee, the witness had noted that crime punishable by imprisonment for a term H.R. 4768 "would not appear to encompass exceeding one year that—

Page 586 "(i) has as an element the use, attempted use, or threatened use of force . . . burglary," and that "[i]f the Subcommittee against the person of another; or concludes that it can accept no retreat from current law, we would suggest that the "(ii) involves conduct that presents preservation of burglary as a prior offense be a serious potential risk of physical injury to accomplished simply by retaining 'burglary' . . another." . rather than by substituting for it the all- inclusive 'crime of violence' definition Page 587 proposed in H.R. 4639." House Hearing, at 34. H.R. 4885 was favorably reported by the House Committee on the Judiciary. H.R.Rep. H.R. 4639, on the other hand, was seen No. 99-849 (1986). The Report explained: as too broad. See id., at 11 ("[I]t is important to prioritize offenses") (statement of "The Subcommittee on Crime held Representative Hughes); id., at 16 ("[T]he a hearing . . . to consider whether it should answer probably lies somewhere between the expand the predicate offenses (robbery and two bills") (statement of Mr. Knapp). The burglary) in existing law in order to add to its hearing concluded with a statement by effectiveness. At this hearing a consensus Representative Hughes, a sponsor of the developed in support of an expansion of the narrower bill, H.R. 4768: predicate offenses to include serious drug trafficking offenses . . . and violent felonies, "Frankly, I think on the question of generally. This concept was encompassed in burglaries, I can see the arguments both H.R. 4885 by deleting the specific predicate ways. We have already included burglaries. offenses for robbery and burglary and adding as predicate offenses [certain drug offenses] "My leanings would be to leave it and violent felonies. . . . alone; it is in the existing law; it was the existing statute. We can still be specific "The other major question enough. We are talking about burglaries that involved in these hearings was as to what probably are being carried out by an armed violent felonies involving physical force criminal, because the triggering mechanism is against property should be included in the that they possess a weapon. . . . So we are not definition of 'violent' felony. The talking about the average run-of-the-mill Subcommittee agreed to add the crimes burglar necessarily, we are talking about punishable for a term exceeding one year that somebody who also illegally possesses or has involve conduct that presents a serious potential risk of physical injury to others. This Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

will add State and Federal crimes against that he is prepared to use violence if property such as burglary, arson, extortion, necessary to carry out his plans or to escape. use of explosives and similar crimes as Congress apparently thought that all predicate offenses where the conduct involved burglaries serious enough to be punishable by presents a serious risk of injury to a person" imprisonment for more than a year (emphasis in original). Id., at 3. constituted a category of crimes that shared this potential for violence and that were likely The provision as finally enacted, to be committed by career criminals. There however, added to the above-quoted never was any proposal to limit the predicate subsection (ii) the phrase that is critical in offense to some special subclass of burglaries this case: ". . . is burglary, arson, or that might be especially dangerous, such as extortion, involves use of explosives, or those where the offender is armed, or the otherwise involves conduct that presents a building is occupied, or the crime occurs at serious potential risk of physical injury to night.4 another." 18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added). Second, the enhancement provision always has embodied a categorical approach Some useful observations may be to the designation of predicate offenses. In drawn. First, throughout the history of the the 1984 statute, "robbery" and "burglary" enhancement provision, Congress focused its were defined in the statute itself, not left to efforts on career offenders—those who the vagaries of state law. See 18 U.S.C.App. §§ commit a large number of fairly serious 1202(c)(8) and (9) (1982, ed. Supp. III). Thus, crimes as their means of livelihood, and who, Congress intended that the enhancement because they possess weapons, present at provision be triggered by crimes having certain specified elements, not by crimes that Page 588 happened to be labeled "robbery" or "burglary" least a potential threat of harm to persons. This concern was not limited to offenders who Page 589 had actually been convicted of crimes of violence against persons. (Only H.R. 4768, by the laws of the State of conviction. Each of rejected by the House Subcommittee, would the proposed versions of the 1986 have restricted the predicate offenses to amendment carried forward this categorical crimes actually involving violence against approach, extending the range of predicate persons.) offenses to all crimes having certain common characteristics—the use or threatened use of The legislative history also indicates that force, or the risk that force would be used— Congress singled out burglary (as opposed to regardless of how they were labeled by state other frequently committed property crimes law. such as larceny and auto theft) for inclusion as a predicate offense, both in 1984 and in Third, the 1984 definition of burglary 1986, because of its inherent potential for shows that Congress, at least at that time, had harm to persons. The fact that an offender in mind a modern "generic" view of burglary, enters a building to commit a crime often roughly corresponding to the definitions of creates the possibility of a violent burglary in a majority of the States' criminal confrontation between the offender and an codes. See United States v. Hill, 863 F.2d, at occupant, caretaker, or some other person 1582, n. 5. In adopting this definition, who comes to investigate. And the offender's Congress both prevented offenders from own awareness of this possibility may mean invoking the arcane technicalities of the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

common-law definition of burglary to evade Nor is there any indication that the sentence-enhancement provision, and Congress ever abandoned its general protected offenders from the unfairness of approach, in designating predicate offenses, having enhancement depend upon the label of using uniform, categorical definitions to employed by the State of conviction. See capture all offenses of a certain level of S.Rep., at 20. seriousness that involve violence or an inherent risk thereof, and that are likely to be Nothing in the legislative history of the committed by career offenders, regardless of 1986 amendment shows that Congress was technical definitions and labels under state dissatisfied with the 1984 definition. All the law. testimony and reports read as if the meaning of burglary was undisputed. The debate at the III 1986 hearings centered upon whether any property crimes should be included as These observations about the purpose predicate offenses, and if so, which ones. At and general approach of the enhancement the House hearing, the Subcommittee provision enable us to narrow the range of reached a consensus that at least some possible meanings of the term "burglary." property crimes, including burglary, should be included, but again there was no debate A. over the proper definition of burglary. The compromise bill, H.R. 4885, apparently was First, we are led to reject the view of intended to include burglary, among other the Court of Appeals in this case. It seems to serious property offenses, by implication, as a us to be implausible that Congress intended crime that "involves conduct that presents a the meaning of "burglary" for purposes of § serious potential risk of physical injury to 924(e) to depend on the definition adopted by another." The language added to H.R. 4885 the State of conviction. That would mean that before its enactment seemingly was meant a person convicted of unlawful possession of a simply to make explicit the provision's firearm would, or would not, receive a implied coverage of crimes such as burglary. sentence-

The legislative history as a whole Page 591 suggests that the deletion of the 1984 en hancement based on exactly the same definition of burglary may have been an inad- conduct, depending on whether the State of Page 590 his prior conviction happened to call that conduct "burglary." vertent casualty of a complex drafting process.5 In any event, there is nothing in the For example, Michigan has no offense history to show that Congress intended in formally labeled "burglary." It classifies 1986 to replace the 1984 "generic" definition burglaries into several grades of "breaking of burglary with something entirely different. and entering." See Mich.Comp.Laws § Although the omission of a pre-existing 750.110 (1979). In contrast, California defines definition of a term often indicates Congress' "burglary" so broadly as to include shoplifting intent to reject that definition, see INS v. and theft of goods from a "locked" but Cardoza-Fonseca, 480 U.S. 421, 432, 107 unoccupied automobile. See Cal.Penal Code S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987); Ann. § 459 (West Supp.1990); United States Russello v. United States, 464 U.S. 16, 23, 104 v. Chatman, 869 F.2d 525, 528-529, and n. 2 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983), we draw (CA9 1989) (entry through unsecured window no such inference here. of an unoccupied auto, and entry of a store Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

open to the public with intent to commit with its decision to prohibit only extortion in theft, are "burglary" under California law); violation of state law compels the conclusion see also Tex.Penal Code Ann. §§ 30.01-30.05 that peculiar versions of state terminology are (1989 and Supp.1990) (defining burglary to controlling. . . . The fallacy of this contention include theft from coin-operated vending lies in its assumption that, by defining machine or automobile); United States v. extortion with reference to state law, Leonard, 868 F.2d 1393, 1395, n. 2 (CA5 Congress also incorporated state labels for 1989), cert. pending, No. 88-1885. particular offenses. Congress' intent was to aid local law enforcement officials, not to Thus, a person imprudent enough to eradicate only those extortionate activities shoplift or steal from an automobile in which any given State denominated extortion. California would be found, under the Ninth . . . Giving controlling effect to state Circuit's view, to have committed a burglary classifications would result in coverage under constituting a "violent felony" for § 1952 if appellees' activities were centered in enhancement purposes—yet a person who did Massachusetts, Michigan, or Oregon, but so in Michigan might not. Without a clear would deny coverage in Indiana, Kansas, indication that with the 1986 amendment Minnesota, or Wisconsin although each of Congress intended to abandon its general these States prohibits identical criminal approach of using uniform categorical activities." United States v. Nardello, 393 definitions to identify predicate offenses, we U.S. 286, 293-294, 89 S.Ct. 534, 538-539, 21 do not interpret Congress' omission of a L.Ed.2d 487 (1969). definition of "burglary" in a way that leads to odd results of this kind. See Dickerson v. New We think that "burglary" in § 924(e) Banner Institute, Inc., 460 U.S. 103, 119-120, must have some uniform definition 103 S.Ct. 986, 995-996, 74 L.Ed.2d 845 independent of the labels employed by the (1983) (absent plain indication to the various States' criminal codes. contrary, federal laws are not to be construed so that their application is dependent on state B law, "because the application of federal legislation is nationwide and at times the Some Courts of Appeals, see n. 2, supra, federal program would be impaired if state have ruled that § 924(e) incorporates the law were to control"); United States v. Turley, common-law definition of burglary, relying 352 U.S. 407, 411, 77 S.Ct. 397, 399, 1 L.Ed.2d on the maxim that a statutory term is 430 (1957) ("[I]n the absence of a plain generally presumed to have its common-law indication of an intent to incorporate diverse meaning. See Morissette v. United States, 342 state laws into a federal criminal statute, U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952). This view has some appeal, in that Page 592 common-law burglary is the core, or common denominator, of the contemporary usage of the meaning of the federal statute should not the term. Almost all States include a breaking be dependent on state law"). and entering of a dwelling at night, with intent to commit a felony, among their This Court's response to the similar problem of interpreting the term "extortion" Page 593 in the Travel Act, 18 U.S.C. § 1952, is instructive: definitions of burglary. Whatever else the Members of Congress might have been "Appellees argue that Congress' thinking of, they presumably had in mind at decision not to define extortion combined least the "classic" common-law definition Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

when they considered the inclusion of assuming that Congress intended to restrict burglary as a predicate offense. the predicate offense to some especially dangerous subclass of burglaries, restricting it The problem with this view is that the to common-law burglary would not be a contemporary understanding of "burglary" rational way of doing so. The common-law has diverged a long way from its commonlaw definition does not require that the offender roots. Only a few States retain the common- be armed or that the dwelling be occupied at law definition, or something closely the time of the crime. An armed burglary of resembling it.6 Most other States have an occupied commercial building, in the expanded this definition to include entry daytime, would seem to pose a far greater risk without a "breaking," structures other than of harm to persons than an unarmed dwellings, offenses committed in the daytime, nocturnal breaking and entering of an entry with intent to commit a crime other unoccupied house. It seems unlikely that than a felony, etc. See LaFave & Scott, supra, Congress would have considered the latter, n. 3, §§ 8.13(a) through (f), pp. 464-475. This but not the former, to be a "violent felony" statutory development, "when viewed in counting towards a sentence enhancement. In totality, has resulted in a modern crime which the absence of any specific indication that has little in common with its common-law Congress meant to incorporate the common- ancestor except for the title of burglary." Id., law meaning of burglary, we shall not read at § 8.13(g), p. 476. into the statute a definition of "burglary" so obviously ill suited to its purposes. Also, interpreting "burglary" in § 924(e) to mean common-law burglary would not This Court has declined to follow any comport with the purposes of the rule that a statutory term is to be given its enhancement statute. The arcane distinctions common-law meaning, when that meaning is embedded in the common-law definition have obsolete or inconsistent with the statute's little relevance to modern law enforcement pur- concerns.7 It seems unlikely that the Page 595 Page 594 pose. In Perrin v. United States, 444 U.S. 37, Members of Congress, immersed in the 100 S.Ct. 311, 62 L.Ed.2d 199 (1979), this intensely practical concerns of controlling Court rejected the argument that the Travel violent crime, would have decided to abandon Act incorporated the common-law definition their modern, generic 1984 definition of of "bribery" because, by 1961 when the Act burglary and revert to a definition developed was passed, in the ancient English law—a definition mentioned nowhere in the legislative history. "the common understanding and Moreover, construing "burglary" to mean meaning of 'bribery' had extended beyond its common-law burglary would come close to early common-law definitions. In 42 States nullifying that term's effect in the statute, and in federal legislation, 'bribery' included because few of the crimes now generally the bribery of individuals acting in a private recognized as burglaries would fall within the capacity. It was against this background that common-law definition. the Travel Act was passed.

It could be argued, of course, that . . . . . common-law burglary, by and large, involves a greater "potential risk of physical injury to ". . . The record of the hearings and another." § 924(e)(2)(B)(ii). But, even floor debates discloses that Congress made no Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

attempt to define the statutory term 'bribery,' to be construed in favor of the accused. See but relied on the accepted contemporary Bifulco v. United States, 447 U.S. 381, 387, meaning" (footnote omitted). Id., at 45, 100 100 S.Ct. 2247, 2252, 65 L.Ed.2d 205 (1980); S.Ct., at 315-316. Simpson v. United States, 435 U.S. 6, 14-15, 98 S.Ct. 909, 913-914, 55 L.Ed.2d 70 (1978). For this reason, the Court concluded This maxim of statutory construction, that "the generic definition of bribery, rather however, cannot dictate an implausible than a narrow common-law definition, was interpretation of a statute, nor one at odds intended by Congress." Id., at 49, 100 S.Ct., at with the generally accepted contemporary 317. Similarly, in United States v. Nardello, meaning of a term. See Perrin v. United 393 U.S. 286, 89 S.Ct. 534, 21 L.Ed.2d 487 States, 444 U.S., at 49, n. 13, 100 S.Ct., at 317, (1969), this Court held that the Travel Act did n. 13. not incorporate the common-law definition of "extortion," because that definition had been C expanded in many States by the time the Act was passed, id., at 289, 89 S.Ct., at 536, and Petitioner suggests another narrowing because such an interpretation would conflict construction of the term "burglary," more with the Act's purpose to curb the activities of suited to the purpose of the enhancement organized crime. Id., at 293, 89 S.Ct., at 538. statute: The Court therefore declined the give the term an "unnaturally narrow reading," and "Burglary is any crime punishable by a concluded that the defendants' acts fell within term of imprisonment exceeding one year and "the generic term extortion as used in the consisting of entering or remaining within a Travel Act." Id., at 296, 89 S.Ct., at 539. See building that is the property of another with also Bell v. United States, 462 U.S. 356, 362, intent to engage in conduct constituting a 103 S.Ct. 2398, 2402, 76 L.Ed.2d 638 (1983) Federal or State offense that has as an (common-law limitation on meaning of element necessary for conviction conduct that "larceny" not incorporated in Bank Robbery presents a serious risk of physical injury to Act because "[t]he congressional goal of another." Brief for Petitioner 29. protecting bank assets is entirely independent of the traditional distinction on which [the As examples of burglary statutes that defendant] relies"); United States v. Turley, would fit this definition, petitioner points to 352 U.S., at 416-417, 77 S.Ct., at 402-403 first-degree or aggravated-burglary statutes (application of National Motor Vehicle Theft having elements such as entering an occupied Act not limited to "situations which at building; being armed with a deadly weapon; common law would be considered larceny" or causing or threatening physical injury to a because "[p]rofessional thieves resort to in- person. See n. 4, supra. This definition has some appeal, because it avoids the Page 596 arbitrariness of the state-law approach, by restricting the predicate offense in a manner numerable forms of theft and Congress congruent with the general purpose of the presumably sought to meet the need for enhancement statute. federal action effectively rather than to leave loopholes for wholesale evasion"). We do not accept petitioner's proposal, however, for two reasons. First, it is not Petitioner argues that the narrow supported by the language of the common-law definition of burglary would comport with the rule of lenity—that criminal Page 597 statutes, including sentencing provisions, are Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

statute or the legislative history. Petitioner D essentially asserts that Congress meant to include as predicate offenses only a subclass We therefore reject petitioner's view of burglaries whose elements include that Congress meant to include only a special "conduct that presents a serious risk of subclass of burglaries, either those that would physical injury to another," over and above have been burglaries at common law, or those the risk inherent in ordinary burglaries. But if that involve especially dangerous conduct. this were Congress' intent, there would have These limiting constructions are not dictated been no reason to add the word "burglary" to by the rule of lenity. See supra, at 596. We § 924(e)(2)(B)(ii), since that provision believe that Congress meant by "burglary" the already includes any crime that "involves generic sense in which the term is now used conduct that presents a serious potential risk in the criminal codes of most States. See of physical injury to another." We must Perrin, 444 U.S., at 45, 100 S.Ct., at 315; assume that Congress had a purpose in Nardello, 393 U.S., at 289, 89 S.Ct., at 536. adding the word "burglary" to H.R. 4885 before enacting it into law. The most likely Although the exact formulations vary, explanation, in view of the legislative history, the generic, contemporary meaning of is that Congress thought that certain general burglary contains at least the following categories of property crimes—namely elements: an unlawful or unprivileged entry burglary, arson, extortion, and the use of into, or remaining in, a building or other explosives—so often presented a risk of injury structure, with intent to commit a crime.8 See to persons, or were so often committed by LaFave & Scott supra, n. 3, § 8.13(a), p. 466 career criminals, that they should be included (modern statutes "generally require that the in the enhancement statute even though, entry be unprivileged"); id., § 8.13(c), p. 471 considered solely in terms of their statutory (modern statutes "typically describe the place elements, they do not necessarily involve the as a 'building' or 'structure' "); id., § 8.13(e), p. use or threat of force against a person. 474 ("[T]he prevailing view in the modern codes is that an intent to commit any offense Second, if Congress had meant to will do"). include only an especially dangerous subclass of burglaries as predicate offenses, it is This generic meaning, of course, is unlikely that it would have used the practically identical to the 1984 definition unqualified language "is burglary . . . or that, in 1986, was omitted from the otherwise involves conduct that presents a enhancement provision. The 1984 definition, serious potential risk" in § 924(e)(2)(B)(ii) however, was not explicitly replaced with a (emphasis added). Congress presumably different or narrower one; the legislative realized that the word "burglary" is commonly history discloses that no alternative definition understood to include not only aggravated of burglary was ever discussed. As we have burglaries, but also run-of-the-mill burglaries seen, there simply is no plausible alternative involving an unarmed offender, an that Congress could have had in mind. The unoccupied building, and no use or threat of omission of a definition of burglary in the force. This choice of language indicates that 1986 Congress thought ordinary burglaries, as well as burglaries involving some element making Page 599 them especially dangerous, presented a Act therefore implies, at most, that Congress sufficiently "serious potential risk" to count did not wish to specify an exact formulation toward enhancement. that an offense must meet in order to count as Page 598 "burglary" for enhancement purposes. Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

We conclude that a person has been Page 600 convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any burglary statute, the Government may seek crime, regardless of its exact definition or enhancement on the ground that he actually label, having the basic elements of unlawful committed a generic burglary.9 or unprivileged entry into, or remaining in, a building or structure, with intent to commit a This question requires us to address a crime. more general issue whether the sentencing court in applying § 924(e) must look only to IV the statutory definitions of the prior offenses, or whether the court may consider other There remains the problem of applying evidence concerning the defendant's prior this conclusion to cases in which the state crimes. The Courts of Appeals uniformly have statute under which a defendant is convicted held that § 924(e) mandates a formal varies from the generic definition of categorical approach, looking only to the "burglary." If the state statute is narrower statutory definitions of the prior offenses, and than the generic view, e.g., in cases of not to the particular facts underlying those burglary convictions in common-law States or convictions. See United States v. Chatman, convictions of first-degree or aggravated 869 F.2d, at 529; United States v. Headspeth, burglary, there is no problem, because the 852 F.2d 753, 758-759 (CA4 1988); United conviction necessarily implies that the States v. Vidaure, 861 F.2d 1337, 1340 (CA5 defendant has been found guilty of all the 1988), cert. denied, 489 U.S. 1088, 109 S.Ct. elements of generic burglary. And if the 1551, 103 L.Ed.2d 854 (1989); United States defendant was convicted of burglary in a State v. Sherbondy, 865 F.2d 996, 1006-1010 (CA9 where the generic definition has been 1988). We find the reasoning of these cases adopted, with minor variations in persuasive. terminology, then the trial court need find only that the state statute corresponds in First, the language of § 924(e) generally substance to the generic meaning of burglary. supports the inference that Congress intended the sentencing court to look only to A few States' burglary statutes, however, the fact that the defendant had been as has been noted above, define burglary convicted of crimes falling within certain more broadly, e.g., by eliminating the categories, and not to the facts underlying the requirement that the entry be unlawful, or by prior convictions. Section 924(e)(1) refers to including places, such as automobiles and "a person who . . . has three previous vending machines, other than buildings. One convictions" for—not a person who has of Missouri's second-degree burglary statutes committed—three previous violent felonies or in effect at the times of petitioner Taylor's drug offenses. Section 924(e)(2)(B)(i) defines convictions included breaking and entering "violent felony" as any crime punishable by "any booth or tent, or any boat or vessel, or imprisonment for more than a year that "has railroad car." Mo.Rev.Stat. § 560.070 (1969) as an element"—not any crime that, in a (repealed). Also, there may be offenses under particular case, involves—the use or threat of some States' laws that, while not called force. Read in this context, the phrase "is "burglary," correspond in substantial part to burglary" in § 924(e)(2)(B)(ii) generic burglary. We therefore must address the question whether, in the case of a Page 601 defendant who has been convicted under a nongeneric- most likely refers to the elements of the Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

statute of conviction, not to the facts of each Government were able to prove those facts, if defendant's conduct. a guilty plea to a lesser, nonburglary offense was the result of a plea bargain, Second, as we have said, the legislative history of the enhancement statute shows that Page 602 Congress generally took a categorical approach to predicate offenses. There was it would seem unfair to impose a sentence considerable debate over what kinds of enhancement as if the defendant had pleaded offenses to include and how to define them, guilty to burglary. but no one suggested that a particular crime might sometimes count towards We think the only plausible enhancement and sometimes not, depending interpretation of § 924(e)(2)(B)(ii) is that, on the facts of the case. If Congress had like the rest of the enhancement statute, it meant to adopt an approach that would generally requires the trial court to look only require the sentencing court to engage in an to the fact of conviction and the statutory elaborate factfinding process regarding the definition of the prior offense.10 This defendant's prior offenses, surely this would categorical approach, however, may permit have been mentioned somewhere in the the sentencing court to go beyond the mere legislative history. fact of conviction in a narrow range of cases where a jury was actually required to find all Third, the practical difficulties and the elements of generic burglary. For potential unfairness of a factual approach are example, in a State whose burglary statutes daunting. In all cases where the Government include entry of an automobile as well as a alleges that the defendant's actual conduct building, if the indictment or information and would fit the generic definition of burglary, jury instructions show that the defendant was the trial court would have to determine what charged only with a burglary of a building, that conduct was. In some cases, the and that the jury necessarily had to find an indictment or other charging paper might entry of a building to convict, then the reveal the theory or theories of the case Government should be allowed to use the presented to the jury. In other cases, however, conviction for enhancement. only the Government's actual proof at trial would indicate whether the defendant's We therefore hold that an offense conduct constituted generic burglary. Would constitutes "burglary" for purposes of a § the Government be permitted to introduce 924(e) sentence enhancement if either its the trial transcript before the sentencing statutory definition substantially corresponds court, or if no transcript is available, present to "generic" burglary, or the charging paper the testimony of witnesses? Could the defense and jury instructions actually required the present witnesses of its own and argue that jury to find all the elements of generic the jury might have returned a guilty verdict burglary in order to convict the defendant. on some theory that did not require a finding that the defendant committed generic In Taylor's case, most but not all the burglary? If the sentencing court were to former Missouri statutes defining second- conclude, from its own review of the record, degree burglary include all the elements of that the defendant actually committed a generic burglary. See n. 1, supra. Despite the generic burglary, could the defendant Government's argument to the contrary, it is challenge this conclusion as abridging his not apparent to us from the sparse record right to a jury trial? Also, in cases where the before us which of those statutes were the defendant pleaded guilty, there often is no bases for Taylor's prior convictions. We record of the underlying facts. Even if the therefore vacate the judgment of the Court of Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

Appeals and remand the case for further 1. Taylor's burglary convictions were in proceedings consistent with this opinion. Missouri state courts in 1963 and 1971. In those years, Missouri had seven different It is so ordered. statutes under which one could be charged with second-degree burglary. All seven Page 603 offenses required entry into a structure, but they varied as to the type of structure and the Justice SCALIA, concurring in part and means of entry involved. See Mo.Rev.Stat. § concurring in the judgment. 560.045 (1969) (breaking and entering a dwelling house); § 560.050 (having entered a I join in the Court's opinion except for dwelling house, breaking out of it); § 560.055 Part II, which examines in great detail the and 560.060 (breaking an inner door); § statute's legislative history. The examination 560.070 (breaking and entering a building, does not uncover anything useful (i.e., booth, tent, boat, or railroad car); § 560.075 anything that tempts us to alter the meaning (breaking and entering a bank); and § we deduce from the text anyway), but that is 560.080 (breaking and entering a vacant the usual consequence of these inquiries (and building). a good thing, too). What is noteworthy, however, is that in this case it is hard to In 1979, all these statutes were replaced with understand what we would have done if we Mo.Rev.Stat. § 569.170 (1986), which had found anything useful. The Court says, provides that a person commits second- correctly, that the statutory term "burglary" degree burglary "when he knowingly enters has a "generally accepted contemporary unlawfully or knowingly remains unlawfully meaning" which must be given effect and in a building or inhabitable structure for the which may not be modified by the rule of purpose of committing a crime therein." lenity. Ante, at 596, 598. But if the meaning is so clear that it cannot be constricted by that venerable canon of construction, surely it is The formal Notice of Punishment not so ambiguous that it can be constricted by Enhancement submitted to the District Court the sundry floor statements, witness in this case did not reveal which of the seven testimony, and other legislative incunabula earlier Missouri statutes were the bases for that the Court discusses. Is it conceivable that Taylor's convictions; it stated only that he was we look to the legislative history only to convicted of burglary in the second degree. determine whether it displays, not a less App. 6-7. extensive punitive intent than the plain 2. meaning (the domain of the rule of lenity), See, e.g., United States v. Leonard, 868 but a more extensive one? If we found a more F.2d 1393 (CA5 1989) (burglary defined extensive one, I assume we would then have according to state law); 864 F.2d 625 (CA8 to apply the rule of lenity, bringing us back 1989) (this case—same); United States v. once again to the ordinary meaning of the Chatman, 869 F.2d 525 (CA9 1989) statute. It seems like a lot of trouble. (common-law definition of burglary); United States v. Headspeth, 852 F.2d 753 (CA4 I can discern no reason for devoting 10 1988) (same); United States v. Palmer, 871 pages of today's opinion to legislative history, F.2d 1202 (CA3), cert. denied, 493 U.S. 890, except to show that we have given this case 110 S.Ct. 233, 107 L.Ed.2d 185 (1989) close and careful consideration. We must find (burglary means any offense that would have some better way of demonstrating our met the definition of burglary under a conscientiousness. predecessor statute to § 924(e)); United States v. Taylor, 882 F.2d 1018 (CA6 1989) Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

(same); United States v. Dombrowski, 877 "The time must be by night, and not by day: F.2d 520 (CA7 1989) (same); United States v. for in the day time there is no burglary. We Hill, 863 F.2d 1575 (CA11 1989) (same); and have seen, in the case of justifiable homicide, United States v. Patterson, 882 F.2d 595 how much more heinous all laws made an (CA1 1989) (case-by-case inquiry whether the attack by night, rather than by day; allowing crime defined by state statute involves the party attacked by night to kill the conduct that presents a serious potential risk assailant with impunity. As to what is of injury to another). reckoned night, and what day, for this purpose: anciently the day was accounted to 3. "Burglary was defined by the common law begin only at sun-rising, and to end to be the breaking and entering of the immediately upon sun-set; but the better dwelling house of another in the nighttime opinion seems to be, that if there be daylight with the intent to commit a felony." W. or crepusculum enough, begun or left, to LaFave & A. Scott, Substantive Criminal Law discern a man's face withal, it is no burglary. § 8.13, p. 464 (1986) (LaFave & Scott). See 4 But this does not extend to moonlight; for W. Blackstone, Commentaries * 224. then many midnight burglaries would go unpunished: and besides, the malignity of the 4. Some States have first-degree or offence does not so properly arise from its aggravated-burglary statutes that single out being done in the dark, as at the dead of such especially dangerous forms of burglary. night; when all the creation, except beasts of See LaFave & Scott, §§ 8.13(f), (g), pp. 475- prey, are at rest; when sleep has disarmed the 478. owner, and rendered his castle defenceless." 4 W. Blackstone, Commentaries *224. 5. The Senate, on October 5, 1989, passed a bill, S. 1711, 101st Cong., 1st Sess., that would See also id., at *224—*228 (burglary must be add to § 924(e)(2) a definition of burglary of a "mansion -house," must involve a identical to the one deleted in 1986. See 135 breaking and entering, and must be with Cong.Rec. 23613 (1989). In introducing the intent to commit a felony). bill, Senator Biden explained that the amendment 8. This usage approximates that adopted by the drafters of the Model Penal Code: "corrects an error that occurred inadvertently when the definition of burglary was deleted "A person is guilty of burglary if he enters a from the Armed Career Criminal statute in building or occupied structure, or separately 1986. The amendment reenacts the original secured or occupied portion thereof, with definition which was intended to be broader purpose to commit a crime therein, unless the than common law burglary." Id., at 23519. premises are at the time open to the public or the actor is licensed or privileged to enter." This bill is pending in the House. American Law Institute, Model Penal Code § 221.1 (1980). 6. See, e.g., Md.Ann.Code, Art. 27, § 30 9. (1987); Mass.Gen.Laws, ch. 266, § 15 (1988); Our present concern is only to determine Miss.Code Ann. § 97-17-19 (1972); W.Va.Code what offenses should count as "burglaries" for § 61-3-11 (1990). enhancement purposes. The Government remains free to argue that any offense— including offenses similar to generic 7. Consider Blackstone's exposition of one of burglary—should count towards enhancement the elements of burglary: as one that "otherwise involves conduct that Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)

presents a serious potential risk of physical injury to another" under § 924(e)(2)(B)(ii).

10. Even if an enhancement is not available under § 924(e), the Government may still present evidence of the defendant's actual prior criminal conduct, to increase his sentence for the § 922(g)(1) violation under the Federal Sentencing Guidelines. Leocal v. Ashcroft, 543 U.S. 1 (2004)

543 U.S. 1 operation of a vehicle, are not crimes of LEOCAL violence under 18 U. S. C. § 16. Pp. 6-13. v. ASHCROFT, ATTORNEY GENERAL, ET (a) Section 16 requires this Court to look AL. to the elements and nature of the offense of No. 03-583. conviction in determining whether Supreme Court of United States. petitioner's conviction falls within its ambit. Argued October 12, 2004. Florida's DUI statute, like similar statutes in Decided November 9, 2004. many States, requires proof of causation but not of any mental state; and some other Petitioner, a lawful permanent resident States appear to require only proof that a of the United States, pleaded guilty to two person acted negligently in operating the counts of driving under the influence of vehicle. This Court's analysis begins with § alcohol (DUI) and causing serious bodily 16's language. See Bailey v. United States, 516 injury in an accident, in violation of Florida U. S. 137, 144. Particularly when interpreting law. While he was serving his prison sentence, a statute featuring as elastic a word as "use," the Immigration and Naturalization Service the Court construes language in its context initiated removal proceedings pursuant to § and in light of the terms surrounding it. See 237(a) of the Immigration and Nationality Act Smith v. United States, 508 U. S. 223, 229. (INA), which permits deportation of an alien Section 16(a)'s critical aspect is that a crime of convicted of "an aggravated felony." INA § violence involves the "use . . . of physical force 101(a)(43)(F) defines "aggravated felony" to against" another's person or property. That include, inter alia, "a crime of violence [as requires active employment. See Bailey, defined in 18 U. S. C. § 16] for which the term supra, at 145. While one may, in theory, of imprisonment [is] at least one year." Title actively employ something in an accidental 18 U. S. C. § 16(a), in turn, defines "crime of manner, it is much less natural to say that a violence" as "an offense that has as an person actively employs physical force against element the use . . . of physical force against another by accident. When interpreting a the person or property of another," and § statute, words must be given their "ordinary 16(b) defines it as "any other offense that is a or natural" meaning, Smith, supra, at 228, felony and that, by its nature, involves a and § 16(a)'s key phrase most naturally substantial risk that physical force against the suggests a higher degree of intent than person or property of another may be used in negligent or merely accidental conduct. the course of committing the offense." An Petitioner's DUI offense therefore is not a Immigration Judge and the Board of crime of violence under § 16(a). Pp. 6-10. Immigration Appeals ordered petitioner's deportation, and the Eleventh Circuit (b) Nor is it a crime of violence under § dismissed his petition for review, relying on 16(b), which sweeps more broadly than § its precedent that a conviction under Florida's 16(a), but does not thereby encompass all DUI statute is a crime of violence under 18 negligent conduct, such as negligent U.S.C. § 16. operation of a vehicle. It simply covers offenses that naturally involve a person acting Held: State DUI offenses such as in disregard of the risk that physical force Florida's, which either do not have a mens rea might be used against another in committing component or require only a showing of an offense. The classic example is burglary, negligence in the which, by nature, involves a substantial risk that the burglar will use force against a victim [543 U.S. 2] in completing the crime. Thus, § 16(b) contains the same formulation found to be Leocal v. Ashcroft, 543 U.S. 1 (2004)

determinative in § 16(a): the use of physical J. Sedwick Sollers III argued the cause force against another's person or property. for petitioner. With him on the briefs were Accordingly, § 16(b)'s language must be given Patricia L. Maher and Michael J. Ciatti. an identical construction, requiring a higher mens rea than the merely accidental or Dan Himmelfarb argued the cause for negligent conduct involved in a DUI offense. respondents. With him on the brief were Pp. 10-11. Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitors (c) The ordinary meaning of the term General Dreeben and Kneedler, Donald E. "crime of violence," which is what this Court Keener, and Greg D. Mack.* is ultimately determining, combined with § 16's emphasis on the use of physical force CHIEF JUSTICE REHNQUIST delivered against another (or the risk of having to use the opinion of the Court. such force in committing a crime), suggests a category of violent, active crimes that cannot Petitioner Josue Leocal, a Haitian citizen be said naturally to include DUI offenses. who is a lawful permanent resident of the This construction is reinforced by INA § United States, was convicted in 2000 of 101(h), which includes as alternative driving under the influence of alcohol (DUI) definitions of "serious criminal offense" a and causing serious bodily injury, in violation "crime of violence, as defined in [§ 16]," § of Florida law. See Fla. Stat. § 101(h)(2), and a DUI-causing-injury offense, 316.193(3)(c)(2) (2003). Classifying this § 101(h)(3). Interpreting § 16 to include DUI conviction as a "crime of violence" under 18 offenses would leave U. S. C. § 16, and therefore an "aggravated felony" under the Immigration and [543 U.S. 3] Nationality Act (INA), an Immigration Judge and the Board of Immigration Appeals (BIA) § 101(h)(3) practically void of significance, in ordered that petitioner be deported pursuant contravention of the rule that effect should be to § 237(a) of the INA. The Court of Appeals given to every word of a statute whenever possible, see Duncan v. Walker, 533 U. S. 167, [543 U.S. 4] 174. Pp. 11-12. for the Eleventh Circuit agreed, dismissing (d) This case does not present the petitioner's petition for review. We disagree question whether an offense requiring proof and hold that petitioner's DUI conviction is of the reckless use of force against another's not a crime of violence under 18 U. S. C. § 16. person or property qualifies as a crime of violence under § 16. P. 13. Petitioner immigrated to the United States in 1980 and became a lawful Reversed and remanded. permanent resident in 1987. In January 2000, he was charged with two counts of DUI REHNQUIST, C. J., delivered the opinion causing serious bodily injury under Fla. Stat. for a unanimous Court. § 316.193(3)(c)(2), after he caused an accident resulting in injury to two people. He pleaded CERTIORARI TO THE UNITED STATES guilty to both counts and was sentenced to COURT OF APPEALS FOR THE ELEVENTH 2½ years in prison. CIRCUIT. In November 2000, while he was serving his sentence, the Immigration and Naturalization Service (INS) initiated removal Leocal v. Ashcroft, 543 U.S. 1 (2004)

proceedings against him pursuant to § 237(a) Pet. for Cert. 5a-7a. We granted certiorari, of the INA. Under that provision, "[a]ny alien 540 U. S. 1176 (2004), to resolve a conflict who is convicted of an aggravated felony . . . is among the Courts of Appeals on the question deportable" and may be removed upon an whether state DUI offenses similar to the one order of the Attorney General. 66 Stat. 201, 8 in Florida, which either do not have a mens U. S. C. § 1227(a)(2)(A)(iii). Section rea component or require only a showing of 101(a)(43) of the INA defines "aggravated negligence in the operation of a vehicle, felony" to include, inter alia, "a crime of qualify as a crime of violence. Compare Le, violence (as defined in section 16 of title 18, supra, at 1354; and Omar v. INS, 298 F. 3d but not including a purely political offense) 710, 715-718 (CA8 2002), with United States for which the term of imprisonment [is] at v. Trinidad-Aquino, 259 F. 3d 1140, 1145-1146 least one year."1 8 U. S. C. § 1101(a)(43)(F) (CA9 2001); Dalton v. Ashcroft, 257 F. 3d (footnote omitted). Title 18 U. S. C. § 16, in 200, 205-206 (CA2 2001); Bazan-Reyes v. turn, defines the term "crime of violence" to INS, 256 F. 3d 600, 609-611 (CA7 2001); and mean: United States v. Chapa-Garza, 243 F. 3d 921, 926-927 (CA5), amended, 262 F. 3d 479 (CA5 [543 U.S. 5] 2001) (per curiam); see also Ursu v. INS, 20 Fed. Appx. 702 (CA9 2001) (following "(a) an offense that has as an element the Trinidad-Aquino, supra, and ruling that a use, attempted use, or threatened use of violation of the Florida DUI statute at issue physical force against the person or property here and in Le does not count as a "crime of of another, or violence"). We now reverse the Eleventh Circuit. "(b) any other offense that is a felony and that, by its nature, involves a substantial risk * * * that physical force against the person or property of another may be used in the course Title 18 U. S. C. § 16 was enacted as part of committing the offense." of the Comprehensive Crime Control Act of 1984, which broadly reformed the federal Here, the INS claimed that petitioner's criminal code in such areas as sentencing, DUI conviction was a "crime of violence" bail, and drug enforcement, and which added under § 16, and therefore an "aggravated a variety of new violent and nonviolent felony" under the INA. offenses. § 1001(a), 98 Stat. 2136. Congress employed the term "crime of violence" in In October 2001, an Immigration Judge numerous places in the Act, such as for found petitioner removable, relying upon the defining the elements of particular offenses, Eleventh Circuit's decision in Le v. United see, e. g., 18 U. S. C. § 1959 (prohibiting States Attorney General, 196 F. 3d 1352 threats to commit crimes of violence in aid of (1999) (per curiam), which held that a racketeering activity), or for directing when a conviction under the Florida DUI statute hearing is required before a charged qualified as a crime of violence. The BIA individual can be released on bail, see § 2 affirmed. Petitioner completed his sentence 3142(f) (requiring a pretrial detention hearing and was removed to Haiti in November 2002. for those alleged to have committed a crime of In June 2003, the Court of Appeals for the violence). Congress therefore provided in § 16 Eleventh Circuit dismissed petitioner's a general definition of the term "crime of petition for review, relying on its previous violence" to be used throughout the Act. See § 3 ruling in Le, supra. App. to 1001(a),

[543 U.S. 6] [543 U.S. 7] Leocal v. Ashcroft, 543 U.S. 1 (2004)

98 Stat. 2136. Section 16 has since been Our analysis begins with the language of incorporated into a variety of statutory the statute. See Bailey v. United States, 516 provisions, both criminal and noncriminal.4 U. S. 137, 144 (1995). The plain text of § 16(a) states that an offense, to qualify as a crime of Here, pursuant to § 237(a) of the INA, violence, must have "as an element the use, the Court of Appeals applied § 16 to find that attempted use, or threatened use of physical petitioner's DUI conviction rendered him force against the person or property of deportable. In determining whether another." We do not deal here with an petitioner's conviction falls within the ambit attempted of § 16, the statute directs our focus to the "offense" of conviction. See § 16(a) (defining a [543 U.S. 9] crime of violence as "an offense that has as an element the use . . . of physical force against or threatened use of force. Petitioner the person or property of another" (emphasis contends that his conviction did not require added)); § 16(b) (defining the term as "any the "use" of force against another person other offense that is a felony and that, by its because the most common employment of the nature, involves a substantial risk that word "use" connotes the intentional physical force against the person or property availment of force, which is not required of another may be used in the course of under the Florida DUI statute. The committing the offense" (emphasis added)). Government counters that the "use" of force This language requires us to look to the does not incorporate any mens rea elements and the nature of the offense of component, and that petitioner's DUI conviction, rather than to the particular facts conviction necessarily includes the use of relating to petitioner's crime. force. To support its position, the Government dissects the meaning of the word Florida Stat. § 316.193(3)(c)(2) makes it a "use," employing dictionaries, legislation, and third-degree felony for a person to operate a our own case law in contending that a use of vehicle while under the influence and, "by force may be negligent or even inadvertent. reason of such operation, caus[e] . . . [s]erious bodily injury to another." The Florida statute, Whether or not the word "use" alone while it requires proof of causation of injury, supplies a mens rea element, the parties' does not require proof of any particular primary focus on that word is too narrow. mental state. See State v. Hubbard, 751 So. 2d Particularly when interpreting a statute that 552, 562-564 (Fla. 1999) (holding, in the features as elastic a word as "use," we context of a DUI manslaughter conviction construe language in its context and in light under § 316.193, that the statute of the terms surrounding it. See Smith v. United States, 508 U. S. 223, 229 (1993); [543 U.S. 8] Bailey, supra, at 143. The critical aspect of § 16(a) is that a crime of violence is one does not contain a mens rea requirement). involving the "use . . . of physical force Many States have enacted similar statutes, against the person or property of another." criminalizing DUI causing serious bodily (Emphasis added.) As we said in a similar injury or death without requiring proof of any context in Bailey, "use" requires active mental state,5 or, in some States, appearing to employment. 516 U. S., at 145. While one require only proof that the person acted may, in theory, actively employ something in negligently in operating the vehicle.6 The an accidental manner, it is much less natural question here is whether § 16 can be to say that a person actively employs physical interpreted to include such offenses. force against another person by accident. Thus, a person would "use . . . physical force Leocal v. Ashcroft, 543 U.S. 1 (2004)

against" another when pushing him; however, [543 U.S. 11] we would not ordinarily say a person "use[s] . . . physical force against" another by Thus, while § 16(b) is broader than § stumbling and falling into him. When 16(a) in the sense that physical force need not interpreting a statute, we must give words actually be applied, it contains the same their "ordinary or natural" meaning. Smith, formulation we found to be determinative in § supra, at 228. The key phrase in § 16(a) — the 16(a): the use of physical force against the "use . . . of physical force against the person person or property of another. Accordingly, or property of another" — most naturally we must give the language in § 16(b) an suggests a higher degree of intent than identical construction, requiring a higher negligent or merely accidental conduct. See mens rea than the merely accidental or United States v. Trinidad-Aquino, 259 F. 3d, negligent conduct involved in a DUI offense. at 1145; Bazan-Reyes v. INS, 256 F. 3d, at This is particularly true in light of § 16(b)'s 609. requirement that the "substantial risk" be a risk of using physical force against another [543 U.S. 10] person "in the course of committing the offense." In no "ordinary or natural" sense Petitioner's DUI offense therefore is not a can it be said that a person risks having to crime of violence under § 16(a). "use" physical force against another person in the course of operating a vehicle while Neither is petitioner's DUI conviction a intoxicated and causing injury. crime of violence under § 16(b). Section 16(b) sweeps more broadly than § 16(a), defining a In construing both parts of § 16, we crime of violence as including "any other cannot forget that we ultimately are offense that is a felony and that, by its nature, determining the meaning of the term "crime involves a substantial risk that physical force of violence." The ordinary meaning of this against the person or property of another may term, combined with § 16's emphasis on the be used in the course of committing the use of physical force against another person offense." But § 16(b) does not thereby (or the risk of having to use such force in encompass all negligent misconduct, such as committing a crime), suggests a category of the negligent operation of a vehicle. It simply violent, active crimes that cannot be said covers offenses that naturally involve a naturally to include DUI offenses. Cf. United person acting in disregard of the risk that States v. Doe, 960 F. 2d 221, 225 (CA1 1992) physical force might be used against another (Breyer, C. J.) (observing that the term in committing an offense. The reckless "violent felony" in 18 U. S. C. § 924(e) (2000 disregard in § 16 relates not to the general ed. and Supp. II) "calls to mind a tradition of conduct or to the possibility that harm will crimes that involve the possibility of more result from a person's conduct, but to the risk closely related, active violence"). Interpreting that the use of physical force against another § 16 to encompass accidental or negligent might be required in committing a crime.7 conduct would blur the distinction between The classic example is burglary. A burglary the "violent" crimes Congress sought to would be covered under § 16(b) not because distinguish for heightened punishment and the offense can be committed in a generally other crimes. See United States v. Lucio- reckless way or because someone may be Lucio, 347 F. 3d 1202, 1205-1206 (CA10 injured, but because burglary, by its nature, 2003). involves a substantial risk that the burglar will use force against a victim in completing Section 16 therefore cannot be read to the crime. include petitioner's conviction for DUI causing serious bodily injury under Florida Leocal v. Ashcroft, 543 U.S. 1 (2004)

law.8 This construction is reinforced by qualifies as a crime of violence under 18 U. S. Congress' use C. § 16. DUI statutes such as Florida's do not require any mental state with respect to the [543 U.S. 12] use of force against another person, thus reaching individuals who were negligent or of the term "crime of violence" in § 101(h) of less. Drunk driving is a nationwide problem, the INA, which was enacted in 1990. See as evidenced by the efforts of legislatures to Foreign Relations Authorization Act, Fiscal prohibit such conduct and impose Years 1990 and 1991, § 131, 104 Stat. 31 appropriate penalties. But this fact does not (hereinafter FRAA). Section 212(a)(2)(E) of warrant our shoe-horning it into statutory the INA renders inadmissible any alien who sections where it does not fit. The judgment has previously exercised diplomatic immunity of the United States Court of Appeals for the from criminal jurisdiction in the United Eleventh Circuit is therefore reversed, and the States after committing a "serious criminal case is remanded for further proceedings offense." 8 U. S. C. § 1182(a)(2)(E). Section consistent with this opinion. 101(h) defines the term "serious criminal offense" to mean: It is so ordered.

"(1) any felony; ------

"(2) any crime of violence, as defined in Notes: section 16 of title 18; or * Briefs of amici curiae urging reversal were "(3) any crime of reckless driving or of filed for Citizens and Immigrants for Equal driving while intoxicated or under the Justice et al. by Carmine D. Boccuzzi, Jr.; for influence of alcohol or of prohibited the Midwest Immigrant & Human Rights substances if such crime involves personal Center by Shashank S. Upadhye; and for the injury to another." 8 U. S. C. § 1101(h) National Association of Criminal Defense (emphasis added). Lawyers et al. by Paul A. Engelmayer, Douglas F. Curtis, Joshua L. Dratel, Lucas Congress' separate listing of the DUI- Guttentag, Steven R. Shapiro, Robin L. causing-injury offense from the definition of Goldfaden, Lory Diana Rosenberg, Jeanne A. "crime of violence" in § 16 is revealing. Butterfield, Marianne Yang, and Manuel D. Interpreting § 16 to include DUI offenses, as Vargas. the Government urges, would leave § 101(h)(3) practically devoid of significance. As 1. Congress first made commission of an we must give effect to every word of a statute aggravated felony grounds for an alien's wherever possible, see Duncan v. Walker, 533 removal in 1988, and it defined the term to U. S. 167, 174 (2001), the distinct provision include offenses such as murder, drug for these offenses under § 101(h) bolsters our trafficking crimes, and firearm trafficking conclusion that § 16 does not itself encompass offenses. See Anti-Drug Abuse Act of 1988, §§ DUI offenses.9 7342, 7344, 102 Stat. 4469, 4470. Since then, Congress has frequently amended the [543 U.S. 13] definition of aggravated felony, broadening the scope of offenses which render an alien This case does not present us with the deportable. See, e. g., Antiterrorism and question whether a state or federal offense Effective Death Penalty Act of 1996, § 440(e), that requires proof of the reckless use of force 110 Stat. 1277 (adding a number of offenses to against the person or property of another § 101(a)(43) of the INA); Illegal Immigration Leocal v. Ashcroft, 543 U.S. 1 (2004)

Reform and Immigrant Responsibility Act of of mass destruction in relation to a crime of 1996 (IIRIRA), § 321, 110 Stat. 3009-627 violence). Other statutory provisions make (same). The inclusion of any "crime of classification of an offense as a crime of violence" as an aggravated felony came in violence consequential for purposes of, inter 1990. See Immigration Act of 1990, § 501, 104 alia, extradition and restitution. See §§ Stat. 5048. 3181(b), 3663A(c). And the term "crime of violence" under § 16 has been incorporated 2. When petitioner first appealed, the BIA's into a number of noncriminal enactments. position was that a violation of DUI statutes See, e. g., 8 U. S. C. § 1227(a)(2)(A)(iii) similar to Florida's counted as a crime of (rendering an alien deportable for committing violence under 18 U. S. C. § 16. See, e. g., a crime of violence, as petitioner is charged Matter of Puente-Salazar, 22 I. & N. Dec. here). 1006, 1012-1013 (BIA 1999) (en banc). Before petitioner received a decision from his appeal 5. See, e. g., Ala. Code § 13A-6-20(a)(5) (West (due to a clerical error not relevant here), the 1994); Colo. Rev. Stat. § 18-3-205(1)(b)(1) BIA in another case reversed its position from (Lexis 2003); Conn. Gen. Stat. § 53a-60d(a) Puente-Salazar and held that DUI offenses (2003); Ga. Code Ann. § 40-6-394 (Lexis that do not have a mens rea of at least 2004); Idaho Code § 18-8006(1) (Lexis recklessness are not crimes of violence within 2004); Ill. Comp. Stat. Ann., ch. 625, § 5/11- the meaning of § 16. See Matter of Ramos, 23 501(d)(1)(C) (West 2002); Ind. Code § 9-30- I. & N. Dec. 336, 346 (BIA 2002) (en banc). 5-4 (1993); Iowa Code § 707.6A(4) (2003); However, because the BIA held in Ramos that Ky. Rev. Stat. Ann. §§ 189A.010(1) and (11)(c) it would "follow the law of the circuit in those (Lexis Supp. 2004); Me. Rev. Stat. Ann., Tit. circuits that have addressed the question 29-A, § 2411(1-A)(D)(1) (West Supp. 2003); whether driving under the influence is a Mich. Comp. Laws Ann. § 257.625(5) (West crime of violence," id., at 346-347, and Supp. 2004); Neb. Rev. Stat. § 60-6,198(1) because it found the Eleventh Circuit's ruling (2002 Cum. Supp.); N. H. Rev. Stat. Ann. §§ in Le controlling, it affirmed the Immigration 265:82-a(I)(b) and (II)(b) (West 2004); N. J. Judge's removal order. See App. to Pet. for Stat. Ann. § 2C:12-1(c) (West Supp. 2003); N. Cert. 1a-4a. M. Stat. Ann. §§ 66-8-101(B) and (C) (2004); N. D. Cent. Code § 39-09-01.1 (Lexis 1997); 3. Pursuant to the IIRIRA, the Eleventh Ohio Rev. Code Ann. § 2903.08(A)(1)(a) Circuit was without jurisdiction to review the (Lexis 2003); Okla. Stat. Ann., Tit. 47, § 11- BIA's removal order in this case if petitioner 904(B)(1) (West 2001); 75 Pa. Cons. Stat. § was "removable by reason of having 3804(b) (Supp. 2003); R. I. Gen. Laws § 31- committed" certain criminal offenses, 27-2.6(a) (Lexis 2002); Tex. Penal Code Ann. including those covered as an "aggravated § 49.07(a)(1) (West 2003); Vt. Stat. Ann., Tit. felony." See 8 U. S. C. § 1252(a)(2)(C). 23, § 1210(f) (Lexis Supp. 2004); Wash. Rev. Because the Eleventh Circuit held that Code § 46.61.522(1)(b) (1994); Wis. Stat. § petitioner's conviction was such an offense, it 940.25(1) (1999-2000); Wyo. Stat. § 31-5- concluded that it had no jurisdiction to 233(h) (Lexis 2003). consider the removal order. 6. See, e.g., Cal. Veh. Code Ann. § 23153 4. For instance, a number of statutes (West 2000); Del. Code Ann., Tit. 11, §§ criminalize conduct that has as an element 628(2), 629 (Lexis 1995); La. Stat. Ann. §§ the commission of a crime of violence under § 14:39.1(A), 14:39.2(A) (West 1997 and Supp. 16. See, e. g., 18 U. S. C. § 842(p) (prohibiting 2004); Md. Crim. Law Code Ann. §§ 3-211(c) the distribution of information relating to and (d) (Lexis 2004); Miss. Code Ann. § 63- explosives, destructive devices, and weapons 11-30(5) (Lexis 2004); Mo. Ann. Stat. § Leocal v. Ashcroft, 543 U.S. 1 (2004)

565.060.1(4) (West 2000); Mont. Code Ann. interpreted consistently with its criminal § 45-5-205(1) (2003); Nev. Rev. Stat. § applications). 484.3795(1) (2003); S. C. Code Ann. § 56-5- 2945(A)(1) (2003); S. D. Codified Laws § 22- 9. This point carries significant weight in the 16-42 (West Supp. 2003); Utah Code Ann. §§ particular context of this case. Congress 41-6-44(3)(a)(ii)(A) and (3)(b) (Lexis Supp. incorporated § 16 as an aggravated felony 2004); W. Va. Code § 17C-5-2(c) (Lexis under § 101(a)(43)(F) of the INA in 1990. See 2004). Immigration Act of 1990, § 501, 104 Stat. 5048 (Nov. 29, 1990). Congress enacted § 7. Thus, § 16(b) plainly does not encompass 101(h), with its incorporation of § 16 and a all offenses which create a "substantial risk" separate provision covering DUI-causing- that injury will result from a person's injury offenses, just nine months earlier. See conduct. The "substantial risk" in § 16(b) FRAA, § 131, 104 Stat. 31 (Feb. 16, 1990). That relates to the use of force, not to the possible Congress distinguished between a crime of effect of a person's conduct. Compare § 16(b) violence and DUI-causing-injury offenses (requiring a "substantial risk that physical (and included both) in § 101(h), but did not force against the person or property of do so shortly thereafter in making only a another may be used") with United States crime of violence an aggravated felony under Sentencing Commission, Guidelines Manual § § 101(a)(43)(F), strongly supports our 4B1.2(a)(2) (Nov. 2003) (in the context of a construction of § 16. career-offender sentencing enhancement, defining "crime of violence" as meaning, inter ------alia, "conduct that presents a serious potential risk of physical injury to another"). The risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may "use" physical force against another in committing the DUI offense. See, e. g., United States v. Lucio-Lucio, 347 F. 3d 1202, 1205-1207 (CA10 2003); Bazan-Reyes v. INS, 256 F. 3d 600, 609-610 (CA7 2001).

8. Even if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner's favor. Although here we deal with § 16 in the deportation context, § 16 is a criminal statute, and it has both criminal and noncriminal applications. Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies. Cf. United States v. Thompson/Center Arms Co., 504 U. S. 505, 517-518 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be Shepard v. United States, 544 U.S. 13 (2005)

544 U.S. 13 348 F. 3d 308, reversed and remanded. SHEPARD v. JUSTICE SOUTER delivered the opinion UNITED STATES of the Court, except as to Part III, concluding No. 03-9168. that enquiry under the ACCA to determine Supreme Court of United States. whether a guilty plea to burglary under a Argued November 8, 2004. nongeneric statute necessarily admitted Decided March 7, 2005. elements of the generic offense is limited to the terms of the charging document, to the After petitioner Shepard pleaded guilty to terms of a plea agreement or transcript of being a felon in possession of a firearm in colloquy between judge and defendant in violation of 18 U. S. C. § 922(g)(1), the which the defendant confirmed the factual Government sought to increase his sentence basis for the plea, or to some comparable from a 37-month maximum to the 15-year judicial record of this information. Guilty minimum that § 924(e), popularly known as pleas may establish ACCA predicate offenses, the Armed Career Criminal Act (ACCA), and Taylor's reasoning controls the mandates for such felons who have three identification of generic convictions following prior convictions for violent felonies or drug pleas, as well as convictions on verdicts, in offenses. Shepard's predicate felonies were States with nongeneric Massachusetts burglary convictions entered upon guilty pleas. This Court has held that [544 U.S. 14] only "generic burglary" — meaning, among other things, that it was committed in a offenses. The ACCA nowhere provides that building or enclosed space — is a violent convictions in tried and pleaded cases should crime under the ACCA, Taylor v. United be regarded differently, and nothing in States, 495 U. S. 575, 599, and that a court Taylor's rationale limits it to prior jury sentencing under the ACCA can look to convictions. This Court, then, must find the statutory elements, charging documents, and right analogs for applying Taylor to pleaded jury instructions to determine whether an cases. The Taylor Court drew a pragmatic earlier conviction after a jury trial was for conclusion about the best way to identify generic burglary in States (like generic convictions in jury cases. In cases Massachusetts) with broader burglary tried without a jury, the closest analogs to definitions, id., at 602. Refusing to consider jury instructions would be a bench-trial the 15-year minimum, the District Court judge's formal ruling of law and finding of found that a Taylor investigation did not fact; in pleaded cases, they would be the show that Shepard had three generic burglary statement of factual basis for the charge convictions and rejected the Government's shown by a transcript of plea colloquy or by argument that the court should examine written plea agreement presented to the police reports and complaint applications in court, or by a record of comparable findings determining whether Shepard's guilty pleas of fact adopted by the defendant upon admitted and supported generic burglary entering the plea. A later court could convictions. The First Circuit vacated, ruling generally tell from such material whether the that such reports and applications should be prior plea had "necessarily" rested on the fact considered. On remand, the District Court identifying the burglary as generic. Taylor, again declined to impose the enhanced supra, at 602. The Government's arguments sentence. The First Circuit vacated. for a wider evidentiary cast that includes documents submitted to lower courts even Held: The judgment is reversed, and the prior to charges amount to a call to ease away case is remanded. from Taylor's conclusion that respect for Shepard v. United States, 544 U.S. 13 (2005)

congressional intent and avoidance of and too much like the findings subject to collateral trials require confining generic Jones and Apprendi, to say that Almendarez- conviction evidence to the convicting court's Torres clearly authorizes a judge to resolve records approaching the certainty of the the dispute. The rule of reading statutes to record of conviction in a generic crime State. avoid serious risks of unconstitutionality That was the heart of the Taylor decision, and therefore counsels the Court to limit the scope there is no justification for upsetting that of judicial factfinding on the disputed generic precedent where the Court is dealing with character of a prior plea. Pp. 24-26. statutory interpretation and where Congress has not, in the nearly 15 years since Taylor, JUSTICE THOMAS agreed that the Court taken any action to modify the statute. Pp. 19- should not broaden the scope of the evidence 23, 26. judges may consider under Taylor v. United States, 495 U. S. 575, because it would give JUSTICE SOUTER, joined by JUSTICE rise to constitutional error, not constitutional STEVENS, JUSTICE SCALIA, and JUSTICE doubt. Both Almendarez-Torres v. United GINSBURG, concluded in Part III that the States, 523 U. S. 224, and Taylor, which rule in the Jones v. United States, 526 U. S. permit judicial factfinding that concerns prior 227, 243, n. 6, and Apprendi v. New Jersey, convictions, have been eroded by this Court's 530 U. S. 466, 490, line of cases—that any subsequent Sixth Amendment jurisprudence. fact other than a prior conviction sufficient to Pp. 26-29. raise the limit of the possible federal sentence must be found by a jury, absent a waiver by SOUTER, J., delivered an opinion, which the defendant—is also relevant to ACCA was for the Court except as to Part III. sentencing. In a nongeneric State, the fact STEVENS, SCALIA, and GINSBURG, JJ., necessary to show a generic crime is not joined that opinion in full, and THOMAS, J., established by the record of conviction as it joined except as to Part III. THOMAS, J., filed would be in a generic State when a judicial an opinion concurring in part and concurring finding of a disputed prior conviction is made in the judgment, post, p. 26. O'CONNOR, J., on the authority of Almendarez-Torres v. filed a dissenting opinion, in which United States, 523 U. S. 224. Instead, the KENNEDY and BREYER, JJ., joined, post, p. sentencing judge considering the ACCA 28. REHNQUIST, C. J., took no part in the enhancement would (on the Government's decision of the case. view) make a disputed finding of fact about what the defendant and state judge must have CERTIORARI TO THE UNITED STATES understood as the prior plea's factual basis, COURT OF APPEALS FOR THE FIRST and the dispute raises the concern underlying CIRCUIT. Jones and Apprendi: the Sixth and Fourteenth Amendments guarantee a jury's Linda J. Thompson, by appointment of standing between a defendant and the power the Court, 543 U. S. 806, argued the cause for of the State, and they guarantee a jury's petitioner. With her on the briefs were John finding of any disputed fact essential to M. Thompson and Jeffrey T. Green. increase a potential sentence's ceiling. The John P. Elwood argued the cause for the disputed fact here is too far removed from the United States. With him on the brief were conclusive significance of a prior judicial Acting Solicitor General Clement, Assistant record, Attorney General Wray, and Deputy Solicitor * [544 U.S. 15] General Dreeben. Shepard v. United States, 544 U.S. 13 (2005)

JUSTICE SOUTER delivered the opinion Whereas the Government said that each of the Court, except as to Part III. conviction represented a predicate ACCA offense of generic burglary, the District Court Title 18 U. S. C. § 924(e) (2000 ed. and ruled that Taylor barred counting any of the Supp. II), popularly known as the Armed prior convictions as predicates for the Career Criminal Act (ACCA), mandates a mandatory minimum. 125 F. Supp. 2d 562, minimum 15-year prison sentence for anyone 569 (Mass. 2000). possessing a firearm after three prior convictions for serious drug offenses or In Taylor we read the listing of violent felonies. The Act makes burglary a "burglary" as a predicate "violent felony" (in violent the ACCA) to refer to what we called

[544 U.S. 16] [544 U.S. 17] felony only if committed in a building or "generic burglary," an "unlawful or enclosed space ("generic burglary"), not in a unprivileged entry into, or remaining in, a boat or motor vehicle. In Taylor v. United building or structure, with intent to commit a States, 495 U. S. 575 (1990), we held that a crime." 495 U. S., at 599. Because statutes in court sentencing under the ACCA could look some States (like Massachusetts) define to statutory elements, charging documents, burglary more broadly, as by extending it to and jury instructions to determine whether an entries into boats and cars, we had to earlier conviction after trial was for generic consider how a later court sentencing under burglary. The question here is whether a the ACCA might tell whether a prior burglary sentencing court can look to police reports or conviction was for the generic offense.2 We complaint applications to determine whether held that the ACCA generally prohibits the an earlier guilty plea necessarily admitted, later court from delving into particular facts and supported a conviction for, generic disclosed by the record of conviction, thus burglary. We hold that it may not, and that a leaving the court normally to "look only to the later court determining the character of an fact of conviction and the statutory definition admitted burglary is generally limited to of the prior offense." Id., at 602. We examining the statutory definition, charging recognized an exception to this "categorical document, written plea agreement, transcript approach" only for "a narrow range of cases of plea colloquy, and any explicit factual where a jury [in a State with a broader finding by the trial judge to which the definition of burglary] was actually required defendant assented. to find all the elements of" the generic offense. Ibid. We held the exception I applicable "if the indictment or information and jury instructions show that the defendant Petitioner Reginald Shepard was indicted was charged only with a burglary of a under 18 U. S. C. § 922(g)(1), barring felons building, and that the jury necessarily had to from possessing a firearm, and pleaded guilty. find an entry of a building to convict ...." Ibid. At sentencing the Government claimed that Only then might a conviction under a Shepard's prior convictions raised his "nongeneric" burglary statute qualify as an sentencing range from between 30 and 37 ACCA predicate. months (under the United States Sentencing Guidelines) to the 15-year minimum required In this case, the offenses charged in state by § 924(e), pointing to four prior convictions complaints were broader than generic entered upon Shepard's pleas of guilty under burglary, and there were of course no jury one of Massachusetts's two burglary statutes.1 instructions that might have narrowed the Shepard v. United States, 544 U.S. 13 (2005)

charges to the generic limit. The Government an affidavit submitted by Shepard, who stated nonetheless urged the District Court to "that none of the details in th[e police] examine reports submitted by the police with reports w[as] ever mentioned at his pleas," applications for issuance of the complaints, as that "the reports themselves were never read a way of telling whether Shepard's guilty pleas by the judge to him during the plea colloquy," went to generic burglaries notwithstanding and that at no time "was he ever asked if the the broader descriptions of the offenses in the information contained in the ... [r]eports complaints, descriptions that tracked the w[as] true." 181 F. Supp. 2d 14, 19 (Mass. more expansive definition in Massachusetts 2002). Shepard further swore that "with law. The court concluded that Taylor forbade respect to each report: [he] did not admit the this, and that investigation within the Taylor truth of the information contained in the ... limits failed to show that Shepard had [r]eport as part of [his] plea and [had] never admitted in court the facts alleged in the [544 U.S. 18] report ...." Id., at 19-20 (internal quotation marks omitted). Based on this, the District three generic burglary convictions. The court Court found that the Government had failed accordingly refused to consider the 15-year to carry mandatory minimum, though it did sentence Shepard somewhat above the standard level [544 U.S. 19] under the Sentencing Guidelines, on the ground that his criminal history category its burden to demonstrate that Shepard had under the Guidelines did not do justice to his pleaded to three generic burglaries. ample criminal record. The Court of Appeals again vacated the On appeal the First Circuit, following its sentence. After observing that Shepard had earlier decision in United States v. Harris, never "seriously disputed" that he did in fact 964 F. 2d 1234 (1992), vacated the sentence break into the buildings described in the and ruled that complaint applications and police reports or complaint applications, 348 police reports may count as "sufficiently F. 3d 308, 311 (CA1 2003), the court rejected reliable evidence for determining whether a the District Court's conclusion that the defendant's plea of guilty constitutes an Government had not shown the requisite admission to a generically violent crime," 231 predicate offenses for the 15-year minimum F. 3d 56, 67 (2000). As to each of Shepard's sentence, id., at 314. The case was remanded prior convictions, the court remanded the with instructions to impose that sentence. case for the District Court to determine whether there was "sufficiently reliable We granted certiorari, 542 U. S. 918 evidence that the government and the (2004), to address divergent decisions in the defendant shared the belief that the Courts of Appeals applying Taylor when prior defendant was pleading guilty to a generically convictions stem from guilty pleas, not jury violent crime." Id., at 70. verdicts. We now reverse.

The District Court again declined to II impose the 15-year mandatory minimum, even though the Government supplemented We agree with the First Circuit (and every its earlier submission with police reports or other Court of Appeals to speak on the complaint applications on two additional matter) that guilty pleas may establish ACCA burglary convictions. The District Judge predicate offenses and that Taylor's noted that the only account of what occurred reasoning controls the identification of at each of the prior plea hearings came from generic convictions following pleas, as well as Shepard v. United States, 544 U.S. 13 (2005)

convictions on verdicts, in States with non- acts of that court limiting convictions to the generic offenses. See 348 F. 3d, at 312, n. 4 generic category, as in giving instruction to (citing cases). Shepard wisely refrains from the jury. challenging this position, for the ACCA nowhere provides that convictions in tried The Court did not, however, purport to and pleaded cases are to be regarded limit adequate judicial record evidence differently. It drops no hint that Congress strictly to charges and instructions, id., at 602 contemplated different standards for (discussing the use of these documents as an establishing the fact of prior convictions, "example"), since a conviction might follow turning on the basis of trial or plea. Nothing trial to a judge alone or a plea of guilty. In to that effect is suggested, after all, by the cases tried without a jury, the closest analogs language imposing the categorical approach, to jury instructions would be a bench-trial which refers to predicate offenses in terms judge's formal rulings of law and findings of not of prior conduct but of prior "convictions" fact, and in pleaded cases they would be the and the "element[s]" of crimes. Taylor, 495 statement of factual basis for the charge, Fed. U.S., at 600-601 (citing 18 U.S.C. § 924(e)). Rule Crim. Proc. 11(a)(3), shown by a Nor does the Act's legislative history reveal a transcript of plea colloquy or by written plea lesser congressional preference for a agreement presented to the court, or by a categorical, as distinct from fact-specific, record of comparable findings of fact adopted approach to recognizing ACCA predicates in by the defendant upon entering the plea.3 cases resolved by plea. Taylor, 495 U. S., at With 601. And [544 U.S. 21] [544 U.S. 20] such material in a pleaded case, a later court certainly, "the practical difficulties and could generally tell whether the plea had potential unfairness of a factual approach are "necessarily" rested on the fact identifying the daunting," ibid., no less in pleaded than in burglary as generic, Taylor, supra, at 602, litigated cases. Finally, nothing in Taylor's just as the details of instructions could rationale limits it to prior jury convictions; support that conclusion in the jury case, or our discussion of the practical difficulties the details of a generically limited charging inherent in looking into underlying document would do in any sort of case. circumstances spoke specifically of "cases where the defendant pleaded guilty, [in The Government argues for a wider which] there often is no record of the evidentiary cast, however, going beyond underlying facts." Ibid. Our job, then, is to conclusive records made or used in find the right analogs for applying the Taylor adjudicating guilt and looking to documents rule to pleaded cases. submitted to lower courts even prior to charges. It argues for considering a police The Taylor Court drew a pragmatic report submitted to a local court as grounds conclusion about the best way to identify for issuing a complaint under a nongeneric generic convictions in jury cases, while statute; if that report alleges facts that would respecting Congress's adoption of a satisfy the elements of a generic statute, the categorical criterion that avoids subsequent report should suffice to show that a later plea evidentiary enquiries into the factual basis for and conviction were for a predicate offense the earlier conviction. The Court held that under the ACCA. There would be no reason generic burglary could be identified only by for concern about unavailable witnesses or referring to charging documents filed in the stale memories, the Government points out, court of conviction, or to recorded judicial and such limited enquiry would be consistent Shepard v. United States, 544 U.S. 13 (2005)

with Taylor because "[t]he underlying sentencing enhancement "hinge on the purpose [would be] the same as in examining happenstance of state court record-keeping the charging paper and jury instructions practices and the vagaries of state (which the Court endorsed in Taylor): to prosecutors' charging practices." Brief in determine the nature of the offense of which Opposition 13 (internal quotation marks petitioner was convicted, rather than to omitted). determine what he actually did." Brief for United States 22-23. The Government On each point, however, the stresses three points. Government's position raises an uncomfortable implication: every one of its First, it says that the more arguments could have been pressed in favor accommodating view of evidence competent of an enquiry beyond what Taylor allows to prove that the plea was to a generic offense when a jury conviction follows nongeneric will yield reliable conclusions. Although the instructions, and each is therefore as much a records of Shepard's pleas with their menace to Taylor as a justification for an notations that he "[a]dmit[ted] suff[icient] expansive approach to showing whether a facts" do not necessarily show that he guilty plea admitted the generic crime. If the admitted entering buildings or structures, as transcript of a jury trial showed testimony would be true under a generic burglary about a building break, one could say that the statute or charge, the police reports suffice to jury's verdict rested on a finding to that effect. show that the record of admitting sufficient If the trial record showed no evidence of facts "can only have plausibly rested on felonious entrance to anything but a building petitioner's entry of a building." Id., at 25. or structure, the odds that the offense actually committed was generic burglary would be a Second, the Government pulls a little turf accountant's dream. And, again, if it were closer to Taylor's demand for certainty when significant that vagaries of abbreviated plea identifying a generic offense by records could limit the application of the ACCA, the significance would be no less when [544 U.S. 22] the disputed, predicate conviction followed a jury trial and the stenographic notes of the emphasizing that the records of the prior charge had been thrown away. convictions used in this case are in each instance free from any inconsistent, [544 U.S. 23] competing evidence on the pivotal issue of fact separating generic from nongeneric The Government's position thus amounts burglary. "[T]here is nothing in the record to to a call to ease away from the Taylor indicate that petitioner had pleaded guilty conclusion, that respect for congressional based on entering a ship or vehicle on any of intent and avoidance of collateral trials the occasions at issue." Brief for United States require that evidence of generic conviction be 16. confined to records of the convicting court approaching the certainty of the record of Finally, the Government supports its call conviction in a generic crime State. But that for a more inclusive standard of competent limitation was the heart of the decision, and evidence by invoking the virtue of a we cannot have Taylor and the Government's nationwide application of a federal statute position both. unaffected by idiosyncrasies of recordkeeping in any particular State. A bar on review of There is not, however, any sufficient documents like police reports and complaint justification for upsetting precedent here. We applications would often make the ACCA are, after all, dealing with an issue of Shepard v. United States, 544 U.S. 13 (2005)

statutory interpretation, see, e. g., Taylor, S. 227, 243, n. 6 (1999); see also Apprendi v. 495 U. S., at 602, and the claim to adhere to New Jersey, 530 U. S. 466, 490 (2000). case law is generally powerful once a decision has settled statutory meaning, see Patterson The Government dismisses the relevance v. McLean Credit Union, 491 U. S. 164, 172- of the Jones-Apprendi implementation of the 173 (1989) ("Considerations of stare decisis jury right here by describing have special force in the area of statutory interpretation, for here, unlike in the context [544 U.S. 25] of constitutional interpretation, the legislative power is implicated, and Congress remains the determination necessary to apply the free to alter what we have done"). In this ACCA as "involv[ing] only an assessment of instance, time has enhanced even the usual what the state court itself already has been precedential force, nearly 15 years having `required to find' in order to find the passed since Taylor came down, without any defendant guilty." Brief for United States 38 action by Congress to modify the statute as (quoting Taylor, supra, at 602). But it is not subject to our understanding that it allowed that simple. The problem is that "what the only a restricted look beyond the record of state court ... has been `required to find'" is conviction under a nongeneric statute.4 debatable. In a nongeneric State, the fact necessary to show a generic crime is not [544 U.S. 24] established by the record of conviction as it would be in a generic State when a judicial III finding of a disputed prior conviction is made on the authority of Almendarez-Torres v. Developments in the law since Taylor, United States, 523 U. S. 224 (1998). The state and since the First Circuit's decision in statute requires no finding of generic Harris, provide a further reason to adhere to burglary, and without a charging document the demanding requirement that any that narrows the charge to generic limits, the sentence under the ACCA rest on a showing only certainty of a generic finding lies in jury that a prior conviction "necessarily" involved instructions, or bench-trial findings and (and a prior plea necessarily admitted) facts rulings, or (in a pleaded case) in the equating to generic burglary. The Taylor defendant's own admissions or accepted Court, indeed, was prescient in its discussion findings of fact confirming the factual basis of problems that would follow from allowing a for a valid plea. In this particular pleaded broader evidentiary enquiry. "If the case, the record is silent on the generic sentencing court were to conclude, from its element, there being no plea agreement or own review of the record, that the defendant recorded colloquy in which Shepard admitted [who was convicted under a non-generic the generic fact. burglary statute] actually committed a generic burglary, could the defendant challenge this Instead, the sentencing judge considering conclusion as abridging his right to a jury the ACCA enhancement would (on the trial?" 495 U. S., at 601. The Court thus Government's view) make a disputed finding anticipated the very rule later imposed for the of fact about what the defendant and state sake of preserving the Sixth Amendment judge must have understood as the factual right, that any fact other than a prior basis of the prior plea, and the dispute raises conviction sufficient to raise the limit of the the concern underlying Jones and Apprendi: possible federal sentence must be found by a the Sixth and Fourteenth Amendments jury, in the absence of any waiver of rights by guarantee a jury standing between a the defendant. Jones v. United States, 526 U. defendant and the power of the state, and they guarantee a jury's finding of any Shepard v. United States, 544 U.S. 13 (2005)

disputed fact essential to increase the ceiling the National Association of Criminal Defense of a potential sentence. While the disputed Lawyers as amicus curiae urging reversal. fact here can be described as a fact about a prior conviction, it is too far removed from 1. The Government initially cited a fifth prior the conclusive significance of a prior judicial burglary conviction, but after failing to obtain record, and too much like the findings subject adequate documentation about this to Jones and Apprendi, to say that conviction the Government focused on the Almendarez-Torres clearly authorizes a judge other four. to resolve the dispute. The rule of reading 2. Although Taylor involved prior burglaries, statutes to avoid serious risks of as this case does, our holding in Taylor unconstitutionality, see Jones, supra, at 239, covered other predicate ACCA offenses. 495 therefore U. S., at 600.

[544 U.S. 26] 3. Several Courts of Appeals have taken a similar view, approving the use of some or all counsels us to limit the scope of judicial of these documents. United States v. Bonat, factfinding on the disputed generic character 106 F. 3d 1472, 1476-1477 (CA9 1997); United of a prior plea, just as Taylor constrained States v. Maness, 23 F. 3d 1006, 1009-1010 judicial findings about the generic implication (CA6 1994); United States v. Smith, 10 F. 3d of a jury's verdict.5 724, 733-734 (CA10 1993) (per curiam) (construing United States Sentencing IV Commission, Guidelines Manual § 4B1.2 We hold that enquiry under the ACCA to (Nov. 1990)). determine whether a plea of guilty to burglary 4. Like the Government, the dissent would defined by a nongeneric statute necessarily allow district courts to examine a wider range admitted elements of the generic offense is of documents than we approve today, and its limited to the terms of the charging proposal is no more consistent with Taylor document, the terms of a plea agreement or than the Government's. Taylor is clear that transcript of colloquy between judge and any enquiry beyond statute and charging defendant in which the factual basis for the document must be narrowly restricted to plea was confirmed by the defendant, or to implement the object of the statute and avoid some comparable judicial record of this evidentiary disputes. In the case before it, the information. Court drew the line after allowing courts to review documents showing "that the jury The judgment of the Court of Appeals is necessarily had to find an entry of a building reversed, and the case is remanded for further to convict." 495 U.S., at 602; see also ibid. proceedings. (permitting a sentencing court to look beyond the state statute "in a narrow range of cases It is so ordered. where a jury was actually required to find all THE CHIEF JUSTICE took no part in the the elements of generic burglary"). As we say decision of this case. in the text, there are certainly jury trials with record documents like those at issue here, ------never introduced at trial but "uncontradicted," post, at 31 (opinion of Notes: O'CONNOR, J.), and "internally consistent," ibid., with the evidence that came in. The * Gregory L. Poe, Roy T. Englert, Jr., Max dissent would presumably permit Huffman, and Pamela Harris filed a brief for Shepard v. United States, 544 U.S. 13 (2005)

examination of such documents, but Taylor "mak[ing] a finding that raises [a defendant's] assuredly does not. sentence beyond the sentence that could have

The only way to reconcile the dissent's [544 U.S. 27] approach with Taylor is to say that in Taylor the prior convictions followed jury verdicts lawfully been imposed by reference to facts while in this case each prior conviction grew found by the jury or admitted by the out of a guilty plea. See post, at 36 ("Taylor defendant." United States v. Booker, 543 U. S. itself set no rule for guilty pleas"). But Taylor 220, 317-318 (2005) (THOMAS, J., dissenting has no suggestion that its reasoning would in part). Yet that is what the Armed Career not apply in plea cases, and its discussion of Criminal Act, 18 U. S. C. § 924(e) (2000 ed. the practical difficulties specifically referred and Supp. II), permits in this case. Petitioner to prior guilty pleas. 495 U. S., at 601. Reginald Shepard pleaded guilty to being a Moreover, as we have noted, see supra, at 19, felon in possession of a firearm, in violation and as the dissent nowhere disputes, the of 18 U. S. C. § 922(g)(1), which exposed him ACCA provides no support for such a to a maximum sentence of 10 years under § distinction. We decline to create a distinction 924(a)(2) and a Federal Sentencing that Congress evidently had no desire to Guidelines range of 30-to-37 months. draw, that Taylor did not envision, and that However, § 924(e)(1) (2000 ed., Supp. II) we would be hard pressed to explain. mandated a minimum 15-year sentence if Shepard had three previous convictions for "a 5. The dissent charges that our decision may violent felony or a serious drug offense." portend the extension of Apprendi v. New Shepard has never conceded that his prior Jersey, 530 U. S. 466 (2000), to proof of state-court convictions qualify as violent prior convictions, a move which (if it should felonies or serious drug offenses under § occur) "surely will do no favors for future 924(e). Even so, the Court of Appeals defendants in Shepard's shoes." Post, at 38. resolved this contested factual matter by According to the dissent, the Government, ordering the District Court to impose the bearing the burden of proving the defendant's enhancement on remand. prior burglaries to the jury, would then have the right to introduce evidence of those The constitutional infirmity of § 924(e)(1) burglaries at trial, and so threaten severe as applied to Shepard makes today's decision prejudice to the defendant. It is up to the an unnecessary exercise. Nevertheless, the future to show whether the dissent is good plurality today refines the rule of Taylor v. prophesy, but the dissent's apprehensiveness United States, 495 U. S. 575 (1990), and can be resolved right now, for if the dissent further instructs district courts on the turns out to be right that Apprendi will reach evidence they may consider in determining further, any defendant who feels that the risk whether prior state convictions are § 924(e) of prejudice is too high can waive the right to predicate offenses. Taylor and today's have a jury decide questions about his prior decision thus explain to lower courts how to convictions. conduct factfinding that is, according to the logic of this Court's intervening precedents, ------unconstitutional in this very case. The need for further refinement of Taylor endures JUSTICE THOMAS, concurring in part because this Court has not yet reconsidered and concurring in the judgment. Almendarez-Torres v. United States, 523 U. S. 224 (1998), which draws an exception to Apprendi v. New Jersey, 530 U. S. 466 the Apprendi line of cases for judicial (2000), and its progeny prohibit judges from Shepard v. United States, 544 U.S. 13 (2005)

factfinding that concerns a defendant's prior JUSTICE O'CONNOR, with whom convictions. See Apprendi, supra, at 487-490. JUSTICE KENNEDY and JUSTICE BREYER join, dissenting. Almendarez-Torres, like Taylor, has been eroded by this Court's subsequent Sixth The Court today adopts a rule that is not Amendment jurisprudence, and a majority of compelled by statute or by this Court's the Court now recognizes that Almendarez- precedent, that makes little sense as a Torres was wrongly decided. See 523 U. S., at practical matter, and that will substantially 248-249 frustrate Congress' scheme for punishing repeat violent offenders who violate federal [544 U.S. 28] gun laws. The Court is willing to acknowledge that the petitioner's prior state burglary (SCALIA, J., joined by STEVENS, SOUTER, convictions occurred, and that they involved and GINSBURG, JJ., dissenting); Apprendi, unpermitted entries with supra, at 520-521 (THOMAS, J., concurring). The parties do not request it here, but in an [544 U.S. 29] appropriate case, this Court should consider Almendarez-Torres' continuing viability. intent to commit felonies. But the Court Innumerable criminal defendants have been refuses to accept one additional, unconstitutionally sentenced under the commonsense inference, based on substantial flawed rule of Almendarez-Torres, despite documentation and without any evidence to the fundamental "imperative that the Court the contrary: that petitioner was punished for maintain absolute fidelity to the protections his entries into buildings. of the individual afforded by the notice, trial by jury, and beyond-a-reasonable-doubt The petitioner, Reginald Shepard, has requirements." Harris v. United States, 536 never actually denied that the prior crimes at U. S. 545, 581-582 (2002) (THOMAS, J., issue were burglaries of buildings. Nor has he dissenting). denied that, in pleading guilty to those crimes, he understood himself to be accepting In my view, broadening the evidence punishment for burglarizing buildings. judges may consider when finding facts under Instead, seeking to benefit from the Taylor — by permitting sentencing courts to unavailability of certain old court records and look beyond charging papers, jury from a minor ambiguity in the prior crimes' instructions, and plea agreements to an charging documents, petitioner asks us to assortment of other documents such as foreclose any resort to the clear and complaint applications and police reports — uncontradicted background documents that would not give rise to constitutional doubt, as gave rise to and supported his earlier the plurality believes. See ante, at 24-26. It convictions. would give rise to constitutional error, no less than does the limited factfinding that Taylor's The Court acquiesces in that wish and rule permits. For this reason, as well as those instructs the federal courts to ignore all but set forth in Parts I, II, and IV of the Court's the narrowest evidence regarding an Armed opinion, the Court correctly declines to Career Criminal Act defendant's prior guilty broaden the scope of the evidence judges may pleas. I respectfully dissent. consider under Taylor. But because the factfinding procedure the Court rejects gives I rise to constitutional error, not doubt, I cannot join Part III of the opinion. The Armed Career Criminal Act (ACCA) mandates a 15-year minimum sentence for Shepard v. United States, 544 U.S. 13 (2005)

certain federal firearms violations where the some burglary statutes, for purposes of the defendant has three prior convictions for a ACCA, is that they are overinclusive. But "violent felony." 18 U. S. C. § 924(e). In Taylor permitted a federal court to "go defining violent felonies for this purpose, beyond the mere fact of conviction" — and to Congress has specified that the term includes determine, by using other sources, whether any crime, punishable by more than one the defendant's prior crime was in the subset year's imprisonment, that "is burglary, arson, of the statutory crime qualifying as generic or extortion, involves use of explosives, or burglary. For example, where a defendant's otherwise involves conduct that presents a prior conviction occurred by jury trial, Taylor serious potential risk of physical injury to instructed the federal court to review "the another." § 924(e)(2)(B)(ii). We held in indictment or information and jury Taylor v. United States, 495 U. S. 575 (1990), instructions" from the earlier conviction, to that the statute's use of the term "burglary" see whether they had "required the jury to was meant to encompass only what we find all the elements of generic burglary in described as "generic" burglary, a crime with order to convict." 495 U. S., at 602. three elements: (1) "unlawful or unprivileged entry into, or remaining in," (2) "a building or As the Court recognizes, however, structure," (3) "with intent to commit a Taylor's use of that one example did not crime." Id., at 598-599. purport to be exhaustive. See ante, at 20-21. See also United States v. Harris, 964 F. 2d [544 U.S. 30] 1234, 1236 (CA1 1992) (Breyer, C. J.). Rather, Taylor left room for courts to determine That left the problem of how to which other reliable and simple sources might determine whether a defendant's past aid in determining whether a defendant had conviction qualified as a conviction for in fact generic burglary. The most formalistic approach would have been to find the ACCA [544 U.S. 31] requirement satisfied only when the statute under which the defendant was convicted was been convicted of generic burglary. The Court one limited to "generic" burglary. But Taylor identifies several such sources that a wisely declined to follow that course. The sentencing judge may consult under the statutes which some States — like ACCA: the "charging document, written plea Massachusetts here, or Missouri in Taylor — agreement, transcript of plea colloquy, and use to prosecute generic burglary are any explicit factual finding by the trial judge overbroad for ACCA purposes: They are not to which the defendant assented." Ante, at 16. limited to "generic" burglary, but also punish I would expand that list to include any the nongeneric kind. Restricting the uncontradicted, internally consistent parts of sentencing court's inquiry to the face of the the record from the earlier conviction. That statute would have frustrated the purposes of would include the two sources the First the ACCA by allowing some violent recidivists Circuit relied upon in this case. convicted of federal gun crimes to escape the ACCA's heightened punishment based solely Shepard's four prior convictions all on the fortuity of where they had committed occurred by guilty pleas to charges under their previous crimes. Massachusetts' two burglary statutes — statutes that punish "[w]hoever ... breaks and Instead, Taylor adopted a more enters a building, ship, vessel or vehicle, with "pragmatic" approach. Ante, at 20 (majority intent to commit a felony." Mass. Gen. Laws opinion). Every statute punishes a certain set Ann., ch. 266, § 16 (West 2000) (emphasis of criminalized actions; the problem with added); see also § 18. The criminal complaints Shepard v. United States, 544 U.S. 13 (2005)

used as charging documents for the are no longer available in Shepard's case, convictions at issue did not specify that since Massachusetts has apparently seen little Shepard's offenses had involved a building, need to preserve the miscellany of long-past but instead closely copied the more inclusive convictions.) language of the appropriate statute. If these complaints were the only evidence of the I would look as well to additional factual basis of Shepard's guilty pleas, then I portions of the record from that plea — the would agree with the majority that there was complaint application and police report. The no way to know whether those convictions complaint application lists the same statute, were for burglarizing a building. But the describes (in abbreviated form) the same Government did have additional evidence. offense, names the same victim and address, For each of the convictions, the Government and contains the same reference number had both the applications by which the police (though differently hyphenated) as the had secured the criminal complaints and the complaint itself. In addition, the application police reports attached to those applications. specifies as relevant "PROPERTY" (meaning Those documents decisively show that "Goods stolen, what destroyed, etc.") a "Cellar Shepard's illegal act in each prior conviction Door." Id., at 6. The police report (which also was the act of entering a building. Moreover, names the same victim, date, and place of they make inescapable the conclusion that, at offense, and contains the same reference each guilty plea, Shepard understood himself number as the other two documents) gives to be admitting the crime of breaking into a substantially more detail about why building. Massachusetts began criminal proceedings against Shepard: Consider, for instance, the first burglary conviction at issue. The complaint for that "[R]esponded to [radio call] to 30 conviction alleged that, on May 6, 1989, Harlem St. for B-E in progress. On arrival Shepard "did break and enter in the night observed cellar door in rear had been broken time the building, ship, vessel or vehicle, the down. Spoke to victim who stated that approx property of Jerri Cothran, with intent to 3:00 a.m. she heard noises downstairs. She commit a felony therein" in violation then observed suspect ... in her pantry." Id., at 7. [544 U.S. 32] Three points need to be made about the of § 16. 3 App. 5. The place of the offense was relationship between the complaint (whose alleged as "30 Harlem St.," and the complaint use the majority finds completely contained a cross-reference to "CC#91- unobjectionable) and the application and 394783." police report

The majority would have us stop there. [544 U.S. 33] Since both the statute and the charging document name burglary of a "building, ship, (which I would also consider). First, all of the vessel or vehicle," the majority concludes that documents concern the same crime. Second, there is no way to tell whether Massachusetts the three documents are entirely consistent — punished Shepard for transgressing its laws nothing in any of them casts doubt on the by burglarizing a building, or for doing so by veracity of the others. Finally, and most burglarizing a vehicle, ship, or vessel. importantly, the common understanding (Although the majority would also allow a behind all three documents was that, look at Shepard's written plea agreement or a whatever the range of conduct punishable by transcript of the plea proceedings, those items the state statute, this defendant was being Shepard v. United States, 544 U.S. 13 (2005)

prosecuted for burglary of a building. See 348 to the pantry, and so on. But to believe that, F. 3d 308, 314 (CA1 2003) ("[T]here is a we would have to presume that all four compelling inference that the plea was to the Massachusetts courts violated their duty complaint and that the complaint embodied under state law to ensure themselves of the the events described in the application or factual basis for Shepard's plea. In police report in the case file"). Massachusetts, "[a] defendant's choice to plead guilty will not alone support conviction; There certainly is no evidence in the the defendant's guilt in fact must be record contradicting that understanding. established." Commonwealth v. DelVerde, Notably, throughout these proceedings, 398 Mass. 288, 296, 496 N. E. 2d 1357, 1362 Shepard has never denied that the four guilty (1986). As a result, even if "the defendant pleas at issue involved breaking into admits to the crime in open court, ... a court buildings. Nor has he denied that his may not convict unless there are sufficient contemporaneous understanding of each plea facts on the record to establish each element was that, as a result of his admission, he of the offense." Id., at 297, 496 N. E. 2d, at would be punished for having broken into a 1363. See also Commonwealth v. Colon, 439 building. During his federal sentencing Mass. 519, 529, n. 13, 789 N. E. 2d 566, 573, hearings, Shepard did submit an affidavit n. 13 (2003) (guilty plea requires admission about his prior convictions. But that affidavit to the facts); 2 E. Blumenson, S. Fisher, & D. carefully dances around the key issues of Kanstroom, Massachusetts Criminal Practice what Shepard actually did to run afoul of the § 37.7B, p. 288 (1998) ("Usually this is law and what he thought was the substance accomplished by the recitation of either the of his guilty plea. Rather, the affidavit focuses grand jury minutes or police reports, but on what the judge said to Shepard at the defendant's admissions during the plea, or hearing and what Shepard said in response. trial evidence, can also support the factual Even in that regard, the affidavit is strangely basis" (footnote omitted)). Cf. ambiguous. In discussing the first conviction, Commonwealth v. Forde, 392 Mass. 453, for instance, the affidavit states that "the 458, 466 N. E. 2d 510, 513 (1984) (conviction judge [who took the plea] did not read" the cannot be based on uncorroborated police report to Shepard, "and did not ask me confession; rather, there must be some whether or not the information contained in evidence that the crime was "real and not the ... report was true." 1 App. 100. See also imaginary"). It is thus unlikely that Shepard ibid. ("I did not admit the truth of the really intended his affidavit as a statement information contained in the ... report as part that none of the various facts found in the of my plea and I have never admitted in court police reports were ever admitted by him or that the facts alleged in the reports are true"). discussed in his presence during his guilty The affidavit's statements about the other pleas. three prior convictions are similar. More likely, Shepard's attorney carefully Those statements could be taken as phrased the affidavit so that it would admit of Shepard's denial that he was ever asked about a different meaning: that the plea courts (or ever admitted to) any of the never asked, and Shepard never answered, the precise question: "Is what the police [544 U.S. 34] report says true?" But I fail to see how that is relevant, so long as Shepard understood that, specific facts of his crime that happen to be in pleading guilty, he was agreeing to be mentioned in the police reports — facts like punished the date and place of the offense, whether he entered through a cellar door and proceeded [544 U.S. 35] Shepard v. United States, 544 U.S. 13 (2005)

for the building break-in that was the subject overscrupulous regard for formality leads it of the entire proceeding. not only

There may be some scenarios in which — [544 U.S. 36] as the result of charge bargaining, for instance, or due to unexpected twists in an to an absurd result, but also to a result that investigation — a defendant's guilty plea is Congress plainly hoped to avoid. premised on substantially different facts than those that were the basis for the original II police investigation. In such a case, a defendant might well be confused about the The Court gives two principal reasons for practical meaning of his admission of guilt. today's ruling: adherence to the Court's Cf. Taylor, 495 U. S., at 601-602 ("[I]f a guilty decision in Taylor, and constitutional plea to a lesser, nonburglary offense was the concerns about the defendant's right to a jury result of a plea bargain, it would seem unfair trial. to impose a sentence enhancement as if the The first is hardly convincing. As noted defendant had pleaded guilty to burglary"). above, Taylor itself set no rule for guilty But there is no claim of such circumstances pleas, and its list of sources for a sentencing here: All signs are that everyone involved in court to consider was not intended to be each prior plea — from the judge, to the exhaustive. Supra, at 30-31. The First prosecutor, to the defense lawyer, to Shepard Circuit's disposition of this case, therefore, himself — understood each plea as Shepard's was not in direct conflict with Taylor. Nor did admission that he had broken into the it conflict with the spirit of Taylor. Taylor building where the police caught him. Given was in part about "[f]air[ness]" to defendants. each police report's never-superseded 495 U. S., at 602. But there is nothing unfair allegation that Shepard had burglarized a (and a great deal that is positively just) about building, it strains credulity beyond the recognizing and acting upon plain and breaking point to assert that, in each case, uncontradicted evidence that a defendant, in Shepard was actually prosecuted for and entering his prior plea, knew he was being pleaded guilty to burglarizing a ship or a car. prosecuted for and was pleading guilty to The lower court was surely right to detect "an burglary of a building. Taylor also sought to air of make-believe" about Shepard's case. avoid the impracticality of mini-sentencing- 348 F. 3d, at 311. trials featuring opposing witnesses perusing The majority's rule, which forces the lengthy transcripts of prior proceedings. Id., federal sentencing court to feign agnosticism at 601. But no such problem presents itself in about clearly knowable facts, cannot be this case: The Government proposed using squared with the ACCA's twin goals of only the small documentary record behind incapacitating repeat violent offenders, and of Shepard's pleas. Those documents relate to doing so consistently notwithstanding the facts that Shepard does not dispute, and peculiarities of state law. Cf. Taylor, supra, at Shepard has not indicated any desire to 582 ("`[I]n terms of fundamental fairness, submit counterevidence. the Act should ensure, to the extent that it is The issue most central to Taylor was the consistent with the prerogatives of the States need to effectuate Congress' "categorical in defining their own offenses, that the same approach" to sentencing recidivist federal type of conduct is punishable on the Federal offenders — an approach which responds to level in all cases'" (quoting S. Rep. No. 98- the reality of a defendant's prior crimes, 190, p. 20 (1983))). The Court's rather than the happenstance of how those Shepard v. United States, 544 U.S. 13 (2005)

crimes "were labeled by state law." Id., at 589. succeeding cases had expressly and But rather than promote this goal, the consistently disclaimed. Yet today's decision majority opinion today injects a new element reads Apprendi to cast a shadow possibly of arbitrariness into the ACCA: A defendant's implicating recidivism determinations, which sentence will now depend not only on the until now had been safe from such formalism. peculiarities of the statutes particular States See Blakely, supra, at 301 ("`Other than the use to prosecute generic burglary, but also on fact of a prior conviction, any fact that whether those States' record retention increases the penalty of a crime beyond the policies happen to preserve the musty prescribed statutory maximum must be "written submitted to a jury, and proved beyond a reasonable doubt'" (emphasis added; quoting [544 U.S. 37] Apprendi, supra, at 490)). See also Booker, supra, at 244 (opinion of the Court by plea agreement[s]" and recordings of "plea STEVENS, J.) (similar). colloqu[ies]" ancillary to long-past convictions. Ante, at 16. In other words, with Even in a post-Apprendi world, I cannot respect to this most critical issue, the understand how today's case raises any majority's rule is not consistent with Taylor reasonable constitutional concern. at all. [544 U.S. 38] That is why I strongly suspect that the driving force behind today's decision is not To the contrary, this case presents especially Taylor itself, but rather "[d]evelopments in good reasons for respecting Congress' long the law since Taylor." Ante, at 24 (plurality "tradition of treating recidivism as a opinion). A majority of the Court defends its sentencing factor" determined by the judge, rule as necessary to avoid a result that might Almendarez-Torres v. United States, 523 U. otherwise be unconstitutional under S. 224, 243 (1998), rather than as a Apprendi v. New Jersey, 530 U. S. 466 substantive offense element determined by (2000), and related cases. Ante, at 24-26 the jury. First, Shepard's prior convictions (plurality opinion); ante, at 27-28 (THOMAS, were themselves "established through J., concurring in part and concurring in procedures satisfying the fair notice, judgment). I have criticized that line of cases reasonable doubt, and jury trial guarantees." from the beginning, and I need not repeat my Jones, supra, at 249. Second, as with most reasoning here. See Apprendi, supra, at 523 recidivism determinations, see Almendarez- (dissenting opinion); Ring v. Arizona, 536 U. Torres, supra, at 235, the burglary S. 584, 619 (2002) (dissenting opinion); determination in Shepard's case concerned an Blakely v. Washington, 542 U. S. 296, 344- extremely narrow issue, with the relevant 345 (2004) (dissenting opinion). See also facts not seriously contested. See supra, at Jones v. United States, 526 U. S. 227, 254 33-35 (discussing shortcomings of Shepard's (1999) (KENNEDY, J., dissenting); Blakely, affidavit). Finally, today's hint at extending supra, at 340-344 (BREYER, J., dissenting); the Apprendi rule to the issue of ACCA prior United States v. Booker, 543 U. S. 220, 327- crimes surely will do no favors for future 331 (2005) (BREYER, J., dissenting). It is a defendants in Shepard's shoes. When ACCA battle I have lost. defendants in the future go to trial rather than plead guilty, the majority's ruling in But it is one thing for the majority to effect invites the Government, in prosecuting apply its Apprendi rule within that rule's own the federal gun charge, also "to prove to the bounds, and quite another to extend the rule jury" the defendant's prior burglaries. into new territory that Apprendi and Almendarez-Torres, 523 U. S., at 234-235. Shepard v. United States, 544 U.S. 13 (2005)

"[T]he introduction of evidence of a defendant's prior crimes risks significant prejudice," id., at 235, and that prejudice is likely to be especially strong in ACCA cases, where the relevant prior crimes are, by definition, "violent," 18 U. S. C. § 924(e). In short, whatever the merits of the Apprendi doctrine, that doctrine does not currently bear on, and should not be extended to bear on, determinations of a defendant's past crimes, like the ACCA predicates at issue in Shepard's case. The plurality's concern about constitutional doubt, ante, at 24-26, and JUSTICE THOMAS' concern about constitutional error, ante, at 27-28, are therefore misplaced.

* * *

For the reasons explained above, I would find that the First Circuit properly established the applicability of the

[544 U.S. 39]

ACCA sentence by looking to the complaint applications and police reports from the prior convictions. Because the Court concludes otherwise, I respectfully dissent. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

549 U.S. 183 most States,” 495 U.S., at 598, 110 S.Ct. 2143; 127 S.Ct. 815 and that a sentencing court seeking to 166 L.Ed.2d 683 determine whether a particular prior 75 BNA USLW 4053 conviction was for generic burglary should normally look to the state statute defining the Alberto R. GONZALES, Attorney crime of conviction, not to the facts of the General, Petitioner, particular prior case, id., at 599–600, 110 v. S.Ct. 2143; but that where state law defines Luis Alexander DUENAS–ALVAREZ. burglary broadly to include crimes falling outside generic “burglary,” the sentencer No. 05–1629. should “go beyond the mere fact of conviction” and examine, e.g., the charging Supreme Court of the United States document and jury instructions to determine whether the earlier “jury was actually Argued Dec. 5, 2006. required to find all the elements of generic Decided Jan. 17, 2007. burglary,” id., at 602, 110 S.Ct. 2143. The Federal Immigration Judge and the Board of Immigration Appeals (BIA) found respondent removable, but the Ninth Circuit summarily * [127 S.Ct. 816]Syllabus remanded in light of its earlier Penuliar decision holding that “aiding and abetting” a theft is not itself a crime under the generic Respondent, a permanent resident alien, definition of theft. was convicted of violating Cal. Veh.Code Ann. § 10851(a), under which “[a]ny person who Held: The term “theft offense” in 8 U.S.C. drives or takes a vehicle not his or her own, § 1101(a)(43)(G) includes the crime of “aiding without the consent of the owner ..., or any and abetting” a theft offense. Pp. 820 – 823. person who is a party or an accessory to or an accomplice in the driving or unauthorized (a) One who aids or abets a theft, like a taking or stealing, is guilty of a public principal who actually participates, commits a offense.” (Emphasis added.) The Federal crime that falls within the scope of the generic Government then sought to remove theft respondent from the United States as an alien convicted of “a theft offense ... for which the [549 U.S. 184] term of imprisonment [is] at least one year,” 8 U.S.C. § 1101(a)(43)(G); § 1227(a)(2)(A). definition accepted by the BIA and the Ninth The Government claimed that the California and other Circuits: the “taking of property or conviction qualified as such a “theft offense” an exercise of control over property without under the framework set forth in Taylor v. consent with the criminal intent to deprive United States, 495 U.S. 575, 110 S.Ct. 2143, the owner of rights and benefits of ownership, 109 L.Ed.2d 607. In Taylor, the Court even if such deprivation is less than total or considered whether a prior conviction for permanent.” Penuliar v. Gonzales, 435 F.3d violating a state statute criminalizing certain 961, 969. Since, as the record shows, state burglary-like behavior fell within the term and federal criminal law now uniformly treats “burglary” for sentence-enhancement principals and aiders and abettors alike, “the purposes under 18 U.S.C. § 924(e). This Court generic sense in which” the term “theft” “is held that Congress meant that term to refer to now used in the criminal codes of most “burglary” in “the generic sense in which the States,” [127 S.Ct. 817]Taylor, supra, at 598, term is now used in the criminal codes of 110 S.Ct. 2143, covers such “aiders and Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

abettors” as well as principals. And the (c) Respondent's additional claims—that criminal activities of these aiders and abettors § 10851(1) holds liable accessories after the of a generic theft thus fall within the scope of fact, who need not be shown to have the term “theft” in the federal statute. Pp. 820 committed a theft, and (2) applies to – 821. joyriding, which falls outside the generic “theft” definition—are not considered here (b) The Court rejects respondent's because they do not fall within the terms of argument that Cal. Veh.Code Ann. § 10851, the question presented, the lower court did through the California courts' application of a not consider them, and this Court declines to “natural and probable consequences” reach them in the first instance. Pp. 822 – doctrine, creates a subspecies of the crime 823. falling outside the generic “theft” definition. The fact that, under California law, an aider 176 Fed.Appx. 820, vacated and and abettor is criminally responsible not only remanded. for the crime he intends, but also for any crime that naturally and probably results BREYER, J., delivered the opinion of the from his intended crime, does not in itself Court, in which ROBERTS, C.J., and SCALIA, show that the state statute covers a KENNEDY, SOUTER, THOMAS, nongeneric theft crime. Relatively few GINSBURG, and ALITO, JJ., joined, and in jurisdictions have expressly rejected the which STEVENS, J., joined, as to Parts I, II, “natural and probable consequences” and III–B. STEVENS, J., filed an opinion doctrine, and many States and the Federal concurring in part and dissenting in part, Government apply some form or variation of post, p. 825. that doctrine or permit jury inferences of intent in circumstances similar to those in which California has applied the doctrine. To Dan Himmelfarb, Washington, D.C., for succeed, respondent must show something petitioner. special about California's version of the doctrine. His attempt to show that, unlike Christopher J. Meade, New York, NY, for most other States, California makes a respondent. defendant criminally liable for conduct he did not intend, not even as a known or almost Paul D. Clement, Solicitor General, Counsel of certain byproduct of his intentional acts, fails Record, Department of Justice, Washington, because the California cases respondent cites D.C., for petitioner. do not show that California's law is applied in such a way that is somehow broader in scope Christopher J. Meade, Counsel of Record, than other States' laws. Moreover, to find that Anne K. Small, Janet R. Carter, Wilmer, state law creates a crime outside the generic Cutler, Pickering, Hale and Dorr LLP, New definition of a listed crime in a federal statute York, NY, for respondent. requires a realistic probability, not a theoretical possibility, that the State would Paul D. Clement, Solicitor General, Counsel of apply its statute to conduct falling outside the Record, Peter D. Keisler, Assistant Attorney generic definition. To make that showing, an General, Edwin S. Kneedler, Deputy Solicitor offender must at least point to his own case or General, Dan Himmelfarb, Assistant to the other cases in which the state courts in fact Solicitor General, Donald E. Keener, Jennifer did apply the statute in the special Paisner, Department of Justice Washington, (nongeneric) manner for which he argues. D.C., for petitioner. Respondent makes no such showing. Pp. 820 – 823. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

Justice BREYER delivered the opinion offenders with previous convictions for, e.g., a of the Court. “violent felony”; and the Act sets forth certain specific crimes, e.g., “burglary,” included in [549 U.S. 185] this category. The Court, in Taylor, considered whether a conviction for violating Immigration law provides for removal a state statute criminalizing certain burglary- from the United States of an alien convicted like behavior fell within the listed federal of “a theft offense (including receipt of stolen term “burglary.” 495 U.S., at 589, 598, 110 property) ... for which the term of S.Ct. 2143. imprisonment [is] at least one year.” 8 U.S.C. § 1101(a)(43)(G) (emphasis added; footnote The Court held that Congress meant its omitted); § 1227(a)(2)(A). The question here listed term “burglary” to refer to a specific is whether the term “theft offense” in this crime, i.e., “ ‘burglary’ ” in “ the generic sense federal statute includes the crime of “ aiding in which the term is now used in the criminal and abetting” a theft offense. We hold that it codes of most States.” Id., at 598, 110 S.Ct. does. And we vacate a Ninth Circuit 2143 (emphasis added). The Court also held determination to the contrary. that a state conviction qualifies as a burglary conviction, “regardless of” the “exact [state] I definition or label” as long as it has the “basic elements” of “generic” burglary, namely, The Immigration and Nationality Act, 66 “unlawful or unprivileged entry into, or Stat. 163, as amended, 8 U.S.C. § 1101 et seq., remaining in, a building or structure, with (2000 ed. and Supp.IV), lists a set of offenses, intent to commit a crime.” Id., at 599, 110 conviction for any one of which subjects S.Ct. 2143. The Court added that, when a certain aliens to removal from the United sentencing court seeks to determine whether States, § 1227(a). In determining whether a a particular prior conviction was for a generic conviction (say, a conviction for violating a burglary offense, it should normally look not state criminal law that forbids the taking of to the facts of the particular prior case, but property without permission) falls within the rather to the state statute defining the crime scope of of conviction. Id., at 599–600, 110 S.Ct. 2143.

[549 U.S. 186] The Court further noted that a “few States' burglary statutes” “define burglary a listed offense ( e.g., “theft offense”), the more broadly” to include both a (generically lower courts uniformly have applied the defined) listed crime and also one or more approach this Court set forth in Taylor v. nonlisted crimes. Id., at 599, 110 S.Ct. 2143. United States, 495 U.S. 575, 110 S.Ct. 2143, For example, Massachusetts defines 109 L.Ed.2d 607 (1990). E.g.,Soliman v. “burglary” as including not only breaking into Gonzales, 419 F.3d 276, 284 (C.A.4 2005); “ ‘a building’ ” Abimbola v. Ashcroft, 378 F.3d 173, 176–177 (C.A.2 2004); Huerta–Guevara v. Ashcroft, [549 U.S. 187] 321 F.3d 883, 886–888 (C.A.9 2003); Hernandez–Mancilla v. INS, 246 F.3d 1002, but also breaking into a “vehicle” (which falls 1008–1009 (C.A.7 2001). outside the generic definition of “burglary,” for a car is not a “ ‘building or structure’ ”). Taylor concerned offenses listed in the See Shepard v. United States, 544 U.S. 13, 16, federal Armed Career Criminal Act, 18 U.S.C. 17, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); § 924(e) (2000 ed. and Supp. IV). That Act see also Taylor, 495 U.S., at 599, 110 S.Ct. mandates a lengthy prison sentence for 2143 (discussing [127 S.Ct. 819]Missouri Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

burglary statutes). In such cases the Court's conviction was for a generic theft offense, “categorical approach” permits the sentencing began removal proceedings. A Federal court “to go beyond the mere fact of Immigration Judge, agreeing with the conviction” in order to determine whether the Government that the California offense is “a earlier “jury was actually required to find all theft offense ... for which the term of the elements of generic burglary.” Id., at 602, imprisonment [is] at least one year,” found 110 S.Ct. 2143; see also Conteh v. Gonzales, Duenas–Alvarez removable. 8 U.S.C. § 461 F.3d 45, 54 (C.A.1 2006) (observing that 1101(a)(43)(G) (footnote omitted); § some courts refer to this step of the Taylor 1227(a)(2)(A). The Board of Immigration inquiry as a “modified categorical approach”). Appeals (BIA) affirmed. Duenas–Alvarez “For example,” the sentencing court might sought review of the BIA's decision in the examine “the indictment or information and Court of Appeals for the Ninth Circuit. jury instructions” in the earlier case. 495 U.S., at 602, 110 S.Ct. 2143. In Shepard, we added that, in a nonjury case, the sentencing court might examine not only the “charging While respondent's petition for court document” but also “the terms of a plea review was pending, the Ninth Circuit, in agreement,” the “transcript of colloquy Penuliar v. Ashcroft, 395 F.3d 1037 (2005), between judge and defendant,” or “some held that the relevant California Vehicle Code comparable judicial record” of information provision, § 10851(a), sweeps more broadly about the “factual basis for the plea.” 544 than generic theft. See id., at 1044–1045. In U.S., at 26, 125 S.Ct. 1254. particular, the court said that generic theft has as an element the taking or control of II others' property. But, the court added, the California statutory phrase “ ‘[who] is a party The case before us concerns the or an accessory ... or an accomplice’ ” would application of the framework just set forth to permit conviction “for aiding and abetting a Luis Duenas–Alvarez, the respondent here, a theft.” Id., at 1044 (emphasis deleted). And permanent resident alien of the United States. the court believed that one might “aid” or In 2002, Duenas–Alvarez was convicted of “abet” a theft without taking or controlling violating Cal. Veh.Code Ann. § 10851(a) (West property. Id., at 1044–1045 (citing Martinez– 2000). That section states: Perez v. Ashcroft, 393 F.3d 1018 (C.A.9 2004), withdrawn and amended, 417 F.3d “Any person who drives or takes a vehicle 1022 (2005)). Hence, in the Court of Appeals' not his or her own, without the consent of the view, the provision must cover some owner thereof, and with intent either to generically defined “theft” crimes and also permanently or temporarily deprive the some other crimes (aiding and abetting owner thereof of his or her title to or crimes) that, because they are not generically possession of the vehicle, whether with or defined “theft” crimes, fall outside the scope without intent to steal the vehicle, or any of the term “theft” in the immigration statute. person who is a party or an accessory to or 395 F.3d, at 1044–1045. an accomplice in the driving or unauthorized taking or stealing, is guilty of a public The Ninth Circuit subsequently heard offense.” (Emphasis added.) Duenas–Alvarez's petition for review and summarily remanded the case to the [549 U.S. 188] agency[127 S.Ct. 820]for further proceedings in light of Penuliar.176 Fed.Appx. 820 After Duenas–Alvarez was convicted, the (2006). We granted the Government's Federal Government, claiming that the petition for certiorari in order to consider the Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

legal validity of the Ninth Circuit's holding set Indeed, every jurisdiction—all States and forth in Penuliar and applied the Federal Government—has “expressly abrogated the distinction” among principals [549 U.S. 189] and aiders and abettors who fall into the second and third categories. 2 W. LaFave, here, namely, the holding that “aiding and Substantive abetting” a theft is not itself a crime that falls within the generic definition of theft. We [549 U.S. 190] conclude that the Ninth Circuit erred. Criminal Law § 13.1(e), p. 333 (2d ed.2003) III (LaFave). The Solicitor General has presented us with a comprehensive account of the law of The Ninth Circuit, like other Circuits and all States and federal jurisdictions as well. the BIA, accepted as a generic definition of And we have verified that these jurisdictions theft, the “taking of property or an exercise of treat similarly principals and aiders and control over property without consent with abettors who fall into the second or third the criminal intent to deprive the owner of common-law category. See Appendix A, infra. rights and benefits of ownership, even if such Since criminal law now uniformly treats those deprivation is less than total or permanent.” who fall into the first three categories alike, Penuliar v. Gonzales, 435 F.3d 961, 969 “the generic sense in which” the term “theft” (2006) (internal quotation marks omitted). “is now used in the criminal codes of most See Abimbola, 378 F.3d, at 176 (analyzing the States,” Taylor, 495 U.S., at 598, 110 S.Ct. BIA's definition and citing cases from three 2143, covers such “aiders and abettors” as other Circuits, including the Ninth Circuit, well as principals. And the criminal activities approving that definition). The question of these aiders and abettors of a generic theft before us is whether one who aids or abets a must themselves fall within the scope of the theft falls, like a principal, within the scope of term “theft” in the federal statute. this generic definition. We conclude that he does. A

The common law divided participants in Duenas–Alvarez does not defend the a felony into four basic categories: (1) first- Ninth Circuit's position. He agrees with the degree principals, those who actually Government that generically speaking the law committed the crime in question; (2) second- treats aiders and abettors during and before degree principals, aiders and abettors present the crime the same way it treats principals; at the scene of the crime; (3) accessories and that the immigration statute must then before the fact, aiders and abettors who treat them similarly as well. Instead, Duenas– helped the principal before the basic criminal Alvarez argues that the California Vehicle event took place; and (4) accessories after the Code provision in other ways reaches beyond fact, persons who helped the principal after generic theft to cover certain nongeneric the basic criminal event took place. See crimes. Standefer v. United States, 447 U.S. 10, 15, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980). In the Duenas–Alvarez points out that course of the 20th century, however, California defines “aiding and abetting” such American jurisdictions eliminated the that an aider and abettor is criminally distinction among the first three categories. responsible[127 S.Ct. 821]not only for the Id., at 16–19, 100 S.Ct. 1999;Nye & Nissen v. crime he intends, but also for any crime that United States, 336 U.S. 613, 618, 69 S.Ct. 766, “naturally and probably” results from his 93 L.Ed. 919 (1949). intended crime. People v. Durham, 70 Cal.2d Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

171, 181, 74 Cal.Rptr. 262, 449 P.2d 198, 204 We have reviewed those cases, however, (1969) (“ ‘aider and abettor ... liable for the and we cannot agree that they show that natural and reasonable or probable California's law is somehow special. In the consequences of any act that he knowingly first case, People v. Nguyen, 21 Cal.App.4th aided or encouraged’ ” (quoting People v. 518, 26 Cal.Rptr.2d 323 (1993), the Third Villa, 156 Cal.App.2d 128, 134, 318 P.2d 828 Appellate District in California upheld the (1957); emphasis deleted)). This fact alone jury conviction of individuals who had aided does not show that the statute covers a several robberies at houses of prostitution, for nongeneric theft crime, for relatively few aiding and abetting a sexual assault used by jurisdictions (only 10 in Duenas–Alvarez's one of the individuals to convince a own view) have expressly rejected the proprietor, by frightening her, to give up property. Id., at 528, 533–534, 26 [549 U.S. 191] Cal.Rptr.2d, at 329, 333. The court, in upholding the verdict, wrote that “knowledge “natural and probable consequences” of another's criminal purpose is not sufficient doctrine. See Brief for Respondent 21–22; for aiding and Appendix B, infra. Moreover, many States and the Federal Government apply some form [549 U.S. 192] or variation of that doctrine, or permit jury inferences of intent in circumstances similar abetting; the defendant must also share that to those in which California has applied the purpose or intend to commit, encourage, or doctrine, as explained below. See Appendix C, facilitate the commission of the crime.” Id., at infra. To succeed, Duenas–Alvarez must 530, 26 Cal.Rptr.2d, at 330 (emphasis show something special about California's added). The court added that “[w]hile the version of the doctrine—for example, that defendants participated in the criminal California in applying it criminalizes conduct endeavor the foreseeability of sexual assault that most other States would not consider went from possible or likely to certain, yet “theft.” defendants continued to lend their aid and assistance to the endeavor.” Id., at 534, 26 Duenas–Alvarez attempts to make just Cal.Rptr.2d, at 333 (emphasis added). The such a showing. In particular, he says that court said that the jury could find that the California's doctrine, unlike that of most defendants' other States, makes a defendant criminally liable for conduct that the defendant did not “continuing participation in the criminal intend, not even as a known or almost certain endeavor aided the perpetrators by providing byproduct of the defendant's intentional acts. the control and security they needed to tarry See 1 LaFave § 5.2(a), at 341 (person intends long enough to commit the sexual offense, by that which he knows “is practically certain to helping to convince the victim that resistance follow from his conduct”). At oral argument, would be useless, and by dissuading the Duenas–Alvarez's counsel suggested that victim's employee from any notion she may California's doctrine, for example, might hold have formed of going to the victim's an individual who wrongly bought liquor for assistance.” an underage drinker criminally responsible for that young drinker's later (unforeseen) And the court concluded: reckless driving. See Tr. of Oral Arg. 44. And Duenas–Alvarez refers to several California cases in order to prove his point. See Brief for Respondent 19. “Under these circumstances it will not do for defendants to assert that they [127 S.Ct. Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

822]were concerned only with robbery and significantly beyond the concept as set forth bear no responsibility for the sexual assault.” in the cases of other States. See Appendix C, Id., at 533–534, 26 Cal.Rptr.2d, at 333. infra.

People v. Simpson, 66 Cal.App.2d 319, Moreover, in our view, to find that a state 152 P.2d 339 (1944), affirmed a kidnaping statute creates a crime outside the generic and robbery conviction on an aiding and definition of a listed crime in a federal statute abetting theory. Id., at 322, 152 P.2d 339. requires more than the application of legal Although the defendant argued to the appeals imagination to a state statute's language. It court that she and her compatriots had not requires a realistic probability, not a planned to kidnap the robbery victim, the theoretical possibility, that the State would record showed that she had brought the gun apply its statute to conduct that falls outside used to intimidate the victim while he was the generic definition of a crime. To show that tied up and placed in a car, in which she and realistic probability, an offender, of course, her corobbers rode with the victim to another may show that the statute was so applied in location while they robbed him. Id., at 322– his own case. But he must at least point to his 323, 152 P.2d 339. As in Nguyen, the court, own case or other cases in which the state noting that kidnaping was the means by courts in fact did apply the statute in the which the robbery was committed, found that special (nongeneric) manner for which he the defendant had the requisite “motive,” or argues. intent to commit the kidnaping. 66 Cal.App.2d, at 326, 152 P.2d 339. Because Duenas–Alvarez makes no such showing here, we cannot find that California's [549 U.S. 193] statute, through the California courts' application of a “natural and probable People v. Montes, 74 Cal.App.4th 1050, consequences” 88 Cal.Rptr.2d 482 (1999), affirmed an attempted murder conviction where a [549 U.S. 194] confederate of the defendant shot the victim after the defendant committed armed assault, doctrine, creates a subspecies of the Vehicle simple assault, and breach of the peace. Id., at Code section crime that falls outside the 1055, 88 Cal.Rptr.2d, at 485. The court found generic definition of “theft.” that the conduct for which the appellant was charged with assault and breach of the peace B was a “confrontation ... punctuated by threats and weaponry” “in the context of an ongoing Duenas–Alvarez makes two additional rivalry between ... two gangs [that] acted claims. First, he argues that § 10851 holds violently toward each other.” Ibid. The court liable accessories after the fact; and to prove reasoned that the escalating violence, that an individual was an accessory after the resulting in someone being shot, was a fact does not require the Government to show foreseeable consequence of the defendant's that the individual committed a theft. Second, intended act of participating in the gang Duenas–Alvarez argues that § 10851 applies, confrontation. Ibid. not only to auto theft, but also to joyriding, which he argues involves so limited a Although the court in Montes applied a deprivation of the use of a car that it falls more expansive concept of “motive” or outside the generic “theft” definition. See Van “intent” than did the courts in Nguyen and Vechten v. American Eagle Fire Ins. Co., 239 Simpson, we cannot say that those concepts N.Y. 303, 146 N.E. 432 (1925) (Cardozo, J.) as used in any of these cases extend Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

(citing cases for proposition that a very § 22–1805 (2001); Fla. Stat. § 777.011 (2006); temporary use is not theft). Ga.Code Ann. § 16–2–20 (2003); Haw.Rev.Stat. §§ 702–221, 702–222 (1993); [127 S.Ct. 823]We shall not consider Idaho Code § 19–1430 (Lexis 2004); Ill. these claims. The question that we agreed to Comp. Stat., ch. 720, §§ 5/5–1, 5/5–2 (West decide is whether “ ‘theft offense’ ” in the 2004); Ind.Code § 35–41–2–4 (West 2004); federal statute “includes aiding and abetting Iowa Code § 703.1 (2005); Kan. Stat. Ann. § the commission of the offense.” See Brief for 21–3205(1) (1995); Ky.Rev.Stat. Ann. § Petitioner I. Context makes clear that “aiding 502.020(1) (West 2006); La. Stat. Ann. § and abetting” in this question referred to the 14:24 (West 1997); Me.Rev.Stat. Ann., Tit. use of that term in Penuliar, i.e., to the 17–A, § 57(1) (2006); Md.Crim. Proc.Code second and third common-law categories Ann. § 4–204(b) (Lexis Supp.2006); Mass. (principal in the second degree, accessory Gen. Laws, ch. 274, § 2 (West 2004); Mich. before the fact), see supra, at 820, see also Comp. Laws Ann. § 767.39 (West 2000); Brief for Petitioner 13, and not to “accessory Minn.Stat. § 609.05, subd. 1 (2004); after the fact.” Thus neither this claim nor the Miss.Code Ann. § 97–1–3 (2006); “joyriding” claim falls within the terms of the Mo.Rev.Stat. §§ 562.036, 562.041(1) (2000); question presented. Regardless, the lower Mont.Code Ann. §§ 45–2–301, 45–2–302 court did not consider the claims, and we (2005); Neb.Rev.Stat. § 28–206 (1995); decline to reach them in the first instance. See Nev.Rev.Stat. § 195.020 (2003); National Collegiate Athletic Assn. v. Smith, N.H.Rev.Stat. Ann. § 626:8 (Supp.2006); N.J. 525 U.S. 459, 469–470, 119 S.Ct. 924, 142 Stat. Ann. § 2C:2–6 (West 2005); N.M. Stat. L.Ed.2d 929 (1999); Roberts v. Galen of Va., Ann. § 30–1–13 (2004); N.Y. Penal Law Ann. Inc., 525 U.S. 249, 253–254, 119 S.Ct. 685, § 20.00 (West 2004); N.C. Gen.Stat. Ann. § 142 L.Ed.2d 648 (1999)(per curiam);United 14–5.2 (Lexis 2005); N.D. Cent.Code Ann. § States v. Bestfoods, 524 U.S. 51, 72–73, 118 12.1–03–01(1) (Lexis 1997); Ohio Rev.Code S.Ct. 1876, 141 L.Ed.2d 43 (1998). Ann. §§ 2923.03(A), (F) ( Lexis 2006); Okla. Stat., Tit. 21, § 172 (West 2001); Ore.Rev.Stat. For these reasons we vacate the Ninth §§ 161.150, 161.155 (2003); 18 Pa. Cons.Stat. § Circuit's judgment and remand the case for 306 (2002); R.I. Gen. Laws § 11–1–3 (2002); further proceedings consistent with this S.C.Code Ann. § 16–1–40 (2003); S.D. opinion. Codified Laws §§ 22–3–3, 22–3–3.1 (1998); Tenn.Code Ann. §§ 39–11–401(a), 39–11–402 It is so ordered. (2006); Tex. Penal Code Ann. §§ 7.01, 7.02(a) (West 2003); Utah Code Ann. § 76–2–202 [549 U.S. 195] (Lexis 2003); Vt. Stat. Ann., Tit. 13, §§ 3–4 (1998); Va.Code Ann. § 18.2–18 (Lexis 2004); APPENDIXES TO OPINION OF THE Wash. Rev.Code § 9A.08.020 COURT A [549 U.S. 196]

Ala.Code §§ 13A–2–20, 13A–2–23 2006); W. Va.Code Ann. § 61–11–6 (Lexis (2006); Alaska Stat. §§ 11.16.100, 11.16.110 2005); Wis. Stat. § 939.05 (2003–2004); (2004); Ariz.Rev.Stat. Ann. §§ 13–301, 13– Wyo. Stat. Ann. § 6–1–201 (2005). 302, 13–303(A) (West 2001); Ark.Code Ann. §§ 5–2–402, 5–2–403(a) (2006); B Colo.Rev.Stat. Ann. §§ 18–1–601, 18–1–603 (2006); Conn. Gen.Stat. § 53a–8(a) (2005); Alaska Stat. § 11.16.110; Riley v. State, 60 Del.Code Ann., Tit. 11, § 271 (1995); D.C.Code P.3d 204, 214, 219–221 (Alaska App.2002); Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

[127 S.Ct. 824]Tarnef v. State, 512 P.2d 923, 272 Ga. 395, 395–397, 530 S.E.2d 192, 193– 928 (Alaska 1973); State v. Phillips, 202 Ariz. 194 (2000); Crawford v. State, 210 Ga.App. 427, 435–437, 46 P.3d 1048, 1056–1058 36, 36–37, 435 S.E.2d 64, 65 (1993); State v. (2002); State v. Wall, 212 Ariz. 1, 4–5, 126 Ehrmantrout, 100 Idaho 202, 595 P.2d 1097 P.3d 148, 151–152 (2006); Colo.Rev.Stat. (1979)(per curiam);State v. Meyers, 95–750, Ann. § 18–1–603; Bogdanov v. People, 941 pp. 5–7 (La.App.11/26/96), 683 So.2d 1378, P.2d 247, 250–252, and n. 8, as amended by 1382;State v. Holmes, 388 So.2d 722, 725– 955 P.2d 997 (Colo.1997), disapproved of on 727 (La.1980); People v. Robinson, 475 Mich. other grounds by Griego v. People, 19 P.3d 1, 1, 8–9, 715 N.W.2d 44, 49 (2006); Welch v. 7–8 (Colo.2001); Wilson–Bey v. United State, 566 So.2d 680, 684–685 (Miss.1990); States, 903 A.2d 818, 821–822 (D.C.2006); State v. Roberts, 709 S.W.2d 857, 863, and n. Kitt v. United States, 904 A.2d 348, 354–356 6 (Mo.1986); State v. Ferguson, 20 S.W.3d (D.C.2006); Commonwealth v. Richards, 363 485, 497 (Mo.2000); State v. Logan, 645 Mass. 299, 305–308, 293 N.E.2d 854, 859– S.W.2d 60, 64–65 (Mo.App.1982); State v. 860 (1973); Commonwealth v. Daughtry, 417 Leonor, 263 Neb. 86, 95–97, 638 N.W.2d Mass. 136, 137–140, 627 N.E.2d 928, 930– 798, 807 (2002); N.J. Stat. Ann. § 2C:2–6; 931 (1994); Mont.Code Ann. § 45–2–302; State v. Torres, 183 N.J. 554, 566–567, 874 State ex rel. Keyes v. Montana 13th Jud. Dist. A.2d 1084, 1092 (2005); State v. Weeks, 107 Ct., 288 Mont. 27, 32–35, 955 P.2d 639, 642– N.J. 396, 401–406, 526 A.2d 1077, 1080– 643 (1998); Sharma v. State, 118 Nev. 648, 1082 (1987); Ohio Rev.Code Ann. § 2923.03; 653–657, 56 P.3d 868, 871–873 (2002)(per State v. Johnson, 93 Ohio St.3d 240, 242– curiam); cf.Bolden v. State, 121 Nev. 908, 246, 754 N.E.2d 796, 799–801 (2001); State 921–922, 124 P.3d 191, 200 (2005); State v. v. Herring, 94 Ohio St.3d 246, 248–251, 762 Carrasco, 1997–NMSC–047, ¶¶ 5–13, 124 N.E.2d 940, 947–948 (2002); Ore.Rev.Stat. § N.M. 64, 946 P.2d 1075, 1079–1080;State v. 161.155; State v. Pine, 336 Ore. 194, 203–205, Bacon, 163 Vt. 279, 286–292, 658 A.2d 54, 206–208, and n. 6, 82 P.3d 130, 135, 137, and 60–63 (1995); State v. Pitts, 174 Vt. 21, 23– n. 6 (2003); State v. Anlauf, 164 Ore.App. 27, 800 A.2d 481, 483–485 (2002). 672, 674–677, and n. 1, 995 P.2d 547, 548– 549, and n. 1 (2000); Hudgins v. Moore, 337 C S.C. 333, 339, n. 5, 524 S.E.2d 105, 108, n. 5 (1999); S.D. Codified Laws § 22–3–3; State v. See, e.g., 2 LaFave § 13.3(b), at 361–362, Tofani, 2006 SD 63, ¶¶ 31–48, 719 N.W.2d nn. 27–29 (2d ed.2003 and Supp.2007) 391, 400–405;State v. Richmond, 90 S.W.3d (identifying cases applying the doctrine in 648, 654–656 (Tenn.2002); Tex. Penal Code California, Delaware, Illinois, Indiana, Iowa, Ann. § 7.02; Ex parte Thompson, 179 S.W.3d Kansas, Maine, Minnesota, Tennessee, and 549, 552 (Tex.Crim.App.2005); Gordon v. Wisconsin, as well as in other States where State, 640 S.W.2d 743, 758 (Tex.App.1982); the continued viability of the doctrine is Utah Code Ann. § 76–2–202; State v. unclear); State v. Medeiros, 599 A.2d 723, Alvarez, 872 P.2d 450, 461 (Utah 1994); State 726 (R.I.1991) (aider and abettor intends v. Crick, 675 P.2d 527, 534 (Utah 1983); [127 natural and probable consequences of his S.Ct. 825]State v. Rodoussakis, 204 W.Va. acts). See also Beasley v. State, 360 So.2d 58, 77, 511 S.E.2d 469, 488 (1998); Jahnke v. 1275, 1278 (Fla.App.1978); Ga.Code Ann. § State, 692 P.2d 911, 921–922 (Wyo.1984); 16–2–20; Fales v. State, 908 P.2d 404, 408 (Wyo.1995); United States v. Edwards, 303 [549 U.S. 197] F.3d 606, 637 (C.A.5 2002), cert. denied, 537 U.S. 1192, 123 S.Ct. 1272, 154 L.Ed.2d 1025 Jackson v. State, 278 Ga. 235, 235–237, 599 (2003); United States v. Walker, 99 F.3d 439, S.E.2d 129, 131–132 (2004); Jordan v. State, 443 (C.A.D.C.1996); Gonzales v. Duenas-Alvarez, 127 S.Ct. 815, 166 L.Ed.2d 683, 549 U.S. 183, 75 BNA USLW 4053 (2007)

[549 U.S. 198] Notes:

United States v. Miller, 22 F.3d 1075, 1078– * The syllabus constitutes no part of the 1079 (C.A.11 1994); United States v. Moore, opinion of the Court but has been prepared by 936 F.2d 1508, 1527(CA7), cert. denied, 502 the Reporter of Decisions for the convenience U.S. 991, 112 S.Ct. 607, 116 L.Ed.2d 630 of the reader. See United States v. Detroit (1991); United States v. Graewe, 774 F.2d Timber & Lumber Co., 200 U.S. 321, 337, 26 106, 108, n. 1 (C.A.6 1985), cert. denied, 474 S.Ct. 282, 50 L.Ed. 499. U.S. 1068 and 1069, 106 S.Ct. 826, 88 L.Ed.2d 798 (1986); United States v. Barnett, 667 F.2d 835, 841 (C.A.9 1982); United States v. DeLaMotte, 434 F.2d 289, 293 (C.A.2 1970), cert. denied, 401 U.S. 921, 91 S.Ct. 910, 27 L.Ed.2d 825 (1971).

Justice STEVENS, concurring in part and dissenting in part.

While I join Parts I, II, and III–B of the Court's opinion, as well as its judgment, I do not join Part III–A. I am not prepared to disagree with anything said in Part III–A, but I believe we would be well advised to withhold comment on issues of California law until after they have been addressed by the Court of Appeals in the first instance. Limiting our decision to the question we granted certiorari to answer, though not a rigid rule, is generally prudent. Doing so seems particularly wise whenever reaching beyond the question presented requires analysis of disputed issues of state law. Because circuit judges are generally more familiar with the law of the States within their respective jurisdictions than we are, we have often followed the sound practice of deferring to the courts of appeals on such matters even when we did not necessarily share their views. See, e.g.,Haring v. Prosise, 462 U.S. 306, 314, 103 S.Ct. 2368, 76 L.Ed.2d 595 (1983); Bishop v. Wood, 426 U.S. 341, 345–346, and n. 10, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (collecting cases); see also Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 16, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). I would adhere to that settled practice in this case.

------Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

559 U.S. 356 Petitioner Jose Padilla, a native of Honduras, 130 S.Ct. 1473 has been a lawful permanent resident of the 176 L.Ed.2d 284 United States for more than 40 years. Padilla served this Nation with honor as a member of Jose PADILLA, Petitioner, the U.S. Armed Forces during the Vietnam v. War. He now faces deportation after pleading KENTUCKY. guilty to the transportation of a large amount of marijuana in his tractor-trailer in the No. 08–651. Commonwealth of Kentucky.1

Supreme Court of the United States [130 S.Ct. 1478]

Argued Oct. 13, 2009. In this postconviction proceeding, Padilla Decided March 31, 2010. claims that his counsel not only failed to advise him of this consequence prior to his Stephen B. Kinnaird, for petitioner. entering the plea, but also told him that he “ ‘did not have to worry about immigration Michael R. Dreeben for United States as status since he had been in the country so amicus curiae, by special leave of Court, long.’ ” 253 S.W.3d 482, 483 (Ky.2008). supporting affirmance. Padilla relied on his counsel's erroneous advice when he pleaded guilty to the drug Wm. Robert Long, Jr., for respondent. charges that made his deportation virtually mandatory. He alleges that he would have Richard E. Neal, U'Sellis & Kitchen, PLC, insisted on going to trial if he had not Louisville, KY, Timothy G. Arnold, Dept. of received incorrect advice from his attorney. Public Advocacy, Frankfort, KY, of counsel, Stephanos Bibas, University of Pennsylvania, Assuming the truth of his allegations, the Philadelphia, PA, Stephen B. Kinnaird, Supreme Court of Kentucky denied Padilla Counsel of Record, Alexander M.R. Lyon, D. postconviction relief without the benefit of an Scott Carlton, Mitchell A. Mosvick, Elizabeth evidentiary hearing. The court held that the A. Stevens, Leeann N. Rosnick, Adam S. Sixth Amendment's guarantee of effective Cherensky, Paul, Hastings, Janofsky & assistance of counsel does not protect a Walker LLP, Washington, D.C., for Petitioner. criminal defendant from erroneous advice about deportation because it is merely a Jack Conway, Attorney General of Kentucky, “collateral” consequence Wm. Robert Long, Jr., Counsel of Record, Matthew R. Krygiel, Assistant Attorneys [559 U.S. 360] General, Office of Criminal Appeals, Office of the Attorney General, Frankfort, Kentucky, of his conviction. Id., at 485. In its view, for Respondent. neither counsel's failure to advise petitioner about the possibility of removal, nor counsel's Opinion incorrect advice, could provide a basis for relief. Justice STEVENS delivered the opinion of the Court. We granted certiorari, 555 U.S. 1169, 129 S.Ct. 1317, 173 L.Ed.2d 582 (2009), to decide [559 U.S. 359] whether, as a matter of federal law, Padilla's counsel had an obligation to advise him that the offense to which he was pleading guilty Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

would result in his removal from this country. crime or misdemeanor involving moral We agree with Padilla that constitutionally turpitude.” Act of Mar. 3, 1891, ch. 551, 26 competent counsel would have advised him Stat. 1084.2 that his conviction for drug distribution made him subject to automatic deportation. The Immigration Act of 1917 (1917 Act) Whether he is entitled to relief depends on brought “radical changes” whether he has been prejudiced, a matter that we do not address. [130 S.Ct. 1479]

I to our law. S.Rep. No. 1515, 81st Cong., 2d Sess., pp. 54–55 (1950). For the first time in The landscape of federal immigration law has our history, Congress made classes of changed dramatically over the last 90 years. noncitizens deportable based on conduct While once there was only a narrow class of committed on American soil. Id., at 55. deportable offenses and judges wielded broad Section 19 of the 1917 Act authorized the discretionary authority to prevent deportation of “any alien who is hereafter deportation, immigration reforms over time sentenced to imprisonment for a term of one have expanded the class of deportable year or more because of conviction in this offenses and limited the authority of judges to country of a crime involving moral turpitude, alleviate the harsh consequences of committed within five years after the entry of deportation. The “drastic measure” of the alien to the United States ... .” 39 Stat. deportation or removal, Fong Haw Tan v. 889. And § 19 also rendered deportable Phelan, 333 U.S. 6, 10, 68 S.Ct. 374, 92 L.Ed. noncitizen recidivists who commit two or 433 (1948), is now virtually inevitable for a more crimes of moral turpitude at any time vast number of noncitizens convicted of after entry. Ibid. Congress did not, however, crimes. define the term “moral turpitude.”

The Nation's first 100 years was “a period of While the 1917 Act was “radical” because it unimpeded immigration.” C. Gordon & H. authorized deportation as a consequence of Rosenfield, Immigration Law and Procedure certain convictions, the Act also included a § 1.(2)(a), p. 5 (1959). An early effort to critically important procedural protection to empower the President to order the minimize the risk of unjust deportation: At deportation of those immigrants he “judge[d] the time of sentencing or within 30 days dangerous to the peace and safety of the thereafter, the sentencing judge in both state United States,” Act of June 25, 1798, ch. 58, 1 and federal prosecutions had the power to Stat. 571, was short lived and unpopular. make a recommendation “that such alien Gordon § 1.2, at 5. It was not until 1875 that shall not be deported.” Id., at 890.3 This Congress first passed a statute barring procedure, known as a judicial convicts and prostitutes from entering the recommendation country, Act of Mar. 3, 1875, ch. 141, 18 Stat. 477. Gordon § 1.2b, at 6. In 1891, Congress [559 U.S. 362] added to the list of excludable persons those “who have been convicted of a felony or other against deportation, or JRAD, had the effect infamous of binding the Executive to prevent deportation; the statute was “consistently ... [559 U.S. 361] interpreted as giving the sentencing judge conclusive authority to decide whether a particular conviction should be disregarded as a basis for deportation,” Janvier v. United Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

States, 793 F.2d 449, 452 (C.A.2 1986). Thus, resolved during the sentencing process—not from 1917 forward, there was no such merely a collateral matter outside the scope of creature as an automatically deportable counsel's duty to provide effective offense. Even as the class of deportable representation. offenses expanded, judges retained discretion to ameliorate unjust results on a case-by-case However, the JRAD procedure is no longer basis. part of our law. Congress first circumscribed the JRAD provision in the 1952 Immigration Although narcotics offenses—such as the and Nationality Act (INA),5 and in 1990 offense at issue in this case—provided a Congress entirely eliminated it, 104 Stat. distinct basis for deportation as early as 5050. In 1996, Congress also eliminated the 1922,4 the JRAD procedure was generally Attorney General's authority to grant available to avoid deportation in narcotics discretionary relief from deportation, 110 convictions. See United States v. O'Rourke, Stat. 3009–596, an authority that had been 213 F.2d 759, 762 (C.A.8 1954). Except for exercised to prevent the deportation of over “technical, inadvertent and insignificant 10,000 noncitizens during the 5–year period violations of the laws relating to narcotics,” prior to 1996, INS v. St. Cyr, 533 U.S. 289, ibid., it appears that courts treated narcotics 296, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001). offenses as crimes involving Under contemporary law, if a noncitizen has committed a removable offense after the 1996 [130 S.Ct. 1480] effective date of these amendments moral turpitude for purposes of the 1917 Act's [559 U.S. 364] broad JRAD provision. See ibid. (recognizing that until 1952 a JRAD in a narcotics , his removal is practically inevitable but for the possible exercise of limited remnants of [559 U.S. 363] equitable discretion vested in the Attorney General to cancel removal for noncitizens case “was effective to prevent deportation” convicted of particular classes of offenses.6 (citing Dang Nam v. Bryan, 74 F.2d 379, See 8 U.S.C. § 1229b. Subject to limited 380–381 (C.A.9 1934))). exceptions, this discretionary relief is not available for an offense related to trafficking In light of both the steady expansion of in a controlled substance. See § deportable offenses and the significant 1101(a)(43)(B); § 1228. ameliorative effect of a JRAD, it is unsurprising that, in the wake of Strickland v. These changes to our immigration law have Washington, 466 U.S. 668, 104 S.Ct. 2052, dramatically raised the stakes of a 80 L.Ed.2d 674 (1984), the Second Circuit noncitizen's criminal conviction. The held that the Sixth Amendment right to importance of accurate legal advice for effective assistance of counsel applies to a noncitizens accused of crimes has never been JRAD request or lack thereof, see Janvier, more important. These changes confirm our 793 F.2d 449. See also United States v. view that, as a matter of federal law, Castro, 26 F.3d 557 (C.A.5 1994). In its view, deportation is an integral part—indeed, seeking a JRAD was “part of the sentencing” sometimes the most important part7—of the process, Janvier, 793 F.2d, at 452, even if penalty that may be imposed on noncitizen deportation itself is a civil action. Under the defendants who plead guilty to specified Second Circuit's reasoning, the impact of a crimes. conviction on a noncitizen's ability to remain in the country was a central issue to be II Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

Before deciding whether to plead guilty, a to the criminal process. Our law has defendant is entitled to “the effective enmeshed criminal convictions and

[130 S.Ct. 1481] [559 U.S. 366] assistance of competent counsel.” McMann v. the penalty of deportation for nearly a Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, century, see Part I, supra, at 1478–1481. And, 25 L.Ed.2d 763 (1970); Strickland, 466 U.S., importantly, recent changes in our at 686, 104 S.Ct. 2052. The Supreme Court of immigration law have made removal nearly Kentucky rejected Padilla's ineffectiveness an automatic result for a broad class of claim on the ground that the advice he sought noncitizen offenders. Thus, we find it “most about the risk of deportation concerned only difficult” to divorce the penalty from the collateral matters, i.e., those matters not conviction in the deportation context. United within the sentencing authority of the state States v. Russell, 686 F.2d 35, 38 trial court.8 (C.A.D.C.1982). Moreover, we are quite confident that noncitizen defendants facing a [559 U.S. 365] risk of deportation for a particular offense find it even more difficult. See St. Cyr, 533 253 S.W.3d, at 483–484 (citing U.S., at 322, 121 S.Ct. 2271 (“There can be Commonwealth v. Fuartado, 170 S.W.3d 384 little doubt that, as a general matter, alien (2005)). In its view, “collateral consequences defendants considering whether to enter into are outside the scope of representation a plea agreement are acutely aware of the required by the Sixth Amendment,” and, therefore, the “failure of defense counsel to [130 S.Ct. 1482] advise the defendant of possible deportation consequences is not cognizable as a claim for immigration consequences of their ineffective assistance of counsel.” 253 S.W.3d, convictions”). at 483. The Kentucky high court is far from alone in this view.9 Deportation as a consequence of a criminal conviction is, because of its close connection We, however, have never applied a distinction to the criminal process, uniquely difficult to between direct and collateral consequences to classify as either a direct or a collateral define the scope of constitutionally consequence. The collateral versus direct “reasonable professional assistance” required distinction is thus ill suited to evaluating a under Strickland, 466 U.S., at 689, 104 S.Ct. Strickland claim concerning the specific risk 2052. Whether that distinction is appropriate of deportation. We conclude that advice is a question we need not consider in this case regarding deportation is not categorically because of the unique nature of deportation. removed from the ambit of the Sixth Amendment right to counsel. Strickland We have long recognized that deportation is a applies to Padilla's claim. particularly severe “penalty,” Fong Yue Ting v. United States, 149 U.S. 698, 740, 13 S.Ct. III 1016, 37 L.Ed. 905 (1893); but it is not, in a strict sense, a criminal sanction. Although Under Strickland, we first determine whether removal proceedings are civil in nature, see counsel's representation “fell below an INS v. Lopez–Mendoza, 468 U.S. 1032, 1038, objective standard of reasonableness.” 466 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984), U.S., at 688, 104 S.Ct. 2052. Then we ask deportation is nevertheless intimately related whether “there is a reasonable probability that, but for counsel's unprofessional errors, Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

the result of the proceeding would have been (2000) (providing survey of guidelines across different.” Id., at 694, 104 S.Ct. 2052. The multiple jurisdictions); ABA Standards for first prong—constitutional deficiency—is Criminal Justice, Prosecution Function and necessarily linked to the practice and Defense Function 4–5.1(a), p. 197 (3d expectations of the legal community: “The ed.1993); ABA Standards for Criminal proper measure of attorney performance Justice, Pleas of Guilty 14–3.2(f), p. 116 (3d remains simply reasonableness under ed.1999). “[A]uthorities of every stripe— prevailing professional norms.” Id., at 688, including the American Bar Association, 104 S.Ct. 2052. We long have recognized that criminal defense and public defender “[p]revailing norms of practice as reflected in organizations, authoritative treatises, and American Bar Association standards and the state and city bar publications—universally like ... are guides to determining what is require defense attorneys to advise as to the reasonable ... .” Ibid.; risk of deportation consequences for noncitizen clients ... .” Brief for Legal Ethics, [559 U.S. 367] Criminal Procedure, and Criminal Law Professors as Amici Curiae 12–14 (footnotes Bobby v. Van Hook, 558 U.S. 4, ––––, 130 omitted) (citing, inter alia, National Legal Aid S.Ct. 13, 16, 175 L.Ed.2d 255 (2009) (per and Defender Assn., Performance Guidelines curiam); Florida v. Nixon, 543 U.S. 175, 191, for Criminal Prosecution, §§ 6.2–6.4 (1997); and n. 6, 125 S.Ct. 551, 160 L.Ed.2d 565 S. Bratton & E. Kelley, Practice Points: (2004); Wiggins v. Smith, 539 U.S. 510, 524, Representing a Noncitizen 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003); Williams v. Taylor, 529 U.S. 362, 396, 120 [559 U.S. 368] S.Ct. 1495, 146 L.Ed.2d 389 (2000). Although they are “only guides,” Strickland, 466 U.S., in a Criminal Case, 31 The Champion 61 at 688, 104 S.Ct. 2052, and not “inexorable (Jan./ Feb.2007); N. Tooby, Criminal Defense commands,” Bobby, 558 U.S., at ––––, 130 of Immigrants S.Ct., at 17, these standards may be valuable measures of the prevailing professional [130 S.Ct. 1483] norms of effective representation, especially as these standards have been adapted to deal § 1.3 (3d ed.2003); 2 Criminal Practice with the intersection of modern criminal Manual §§ 45:3, 45:15 (West 2009)). prosecutions and immigration law. We too have previously recognized that “ The weight of prevailing professional norms ‘[p]reserving the client's right to remain in the supports the view that counsel must advise United States may be more important to the her client regarding the risk of deportation. client than any potential jail sentence.’ ” St. National Legal Aid and Defender Assn., Cyr, 533 U.S., at 3223, 121 S.Ct. 2271 (quoting Performance Guidelines for Criminal Defense 3 Bender, Criminal Defense Techniques §§ Representation § 6.2 (1995); G. Herman, Plea 60A.01, 60A.02[2] (1999)). Likewise, we have Bargaining § 3.03, pp. 20–21 (1997); Chin & recognized that “preserving the possibility of” Holmes, Effective Assistance of Counsel and discretionary relief from deportation under § the Consequences of Guilty Pleas, 87 Cornell 212(c) of the 1952 INA, 66 Stat. 187, repealed L.Rev. 697, 713–718 (2002); A. Campbell, by Congress in 1996, “would have been one of Law of Sentencing § 13:23, pp. 555, 560 (3d the principal benefits sought by defendants ed.2004); Dept. of Justice, Office of Justice deciding whether to accept a plea offer or Programs, 2 Compendium of Standards for instead to proceed to trial.” St. Cyr, 533 U.S., Indigent Defense Systems, Standards for at 323, 121 S.Ct. 2271. We expected that Attorney Performance, pp. D10, H8–H9, J8 counsel who were unaware of the Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

discretionary relief measures would “follo [w] practitioner in such cases is more limited. the advice of numerous practice guides” to When the law is not succinct and advise themselves of the importance of this straightforward (as it is in many of the particular form of discretionary relief. Ibid., scenarios posited by Justice ALITO), a n. 50. criminal defense attorney need do no more than advise a noncitizen client that pending In the instant case, the terms of the relevant criminal charges may carry a risk of adverse immigration statute are succinct, clear, and immigration consequences.10 But when the explicit in defining the removal consequence deportation consequence is truly clear, as it for Padilla's conviction. See 8 U.S.C. § was in this case, the duty to give correct 1227(a)(2)(B)(i) (“Any alien who at any time advice is equally clear. after admission has been convicted of a violation of (or a conspiracy or attempt to Accepting his allegations as true, Padilla has violate) any law or regulation of a State, the sufficiently alleged constitutional deficiency United States or a foreign country relating to to satisfy the first prong of Strickland. a controlled substance ..., other than a single Whether Padilla is entitled to relief on his offense involving possession for one's own claim will depend on whether he can satisfy use of 30 grams or less of marijuana, is Strickland 's second prong, prejudice, deportable”). Padilla's counsel could have easily determined that his plea would make [130 S.Ct. 1484] him eligible for deportation simply from reading the text of the statute, which a matter we leave to the Kentucky courts to addresses not some broad classification of consider in the first instance. crimes but specifically commands removal for all controlled substances convictions except IV for the most trivial of marijuana possession The Solicitor General has urged us to offenses. Instead, Padilla's counsel provided conclude that Strickland applies to Padilla's him false assurance that his conviction would claim only to the extent that he has alleged not result in his removal from this country. affirmative misadvice. In the United States' This is not a hard case in which to find view, “counsel is not constitutionally required deficiency: to provide advice on matters that will not be [559 U.S. 369] decided in the criminal case ...,” though counsel is required to provide accurate advice The consequences of Padilla's plea could if she easily be determined from reading the removal statute, his deportation was [559 U.S. 370] presumptively mandatory, and his counsel's chooses to discusses these matters. Brief for advice was incorrect. United States as Amicus Curiae 10. Immigration law can be complex, and it is a Respondent and Padilla both find the legal specialty of its own. Some members of Solicitor General's proposed rule the bar who represent clients facing criminal unpersuasive, although it has support among charges, in either state or federal court or the lower courts. See, e.g., United States v. both, may not be well versed in it. There will, Couto, 311 F.3d 179, 188 (C.A.2 2002); United therefore, undoubtedly be numerous States v. Kwan, 407 F.3d 1005 (C.A.9 2005); situations in which the deportation Sparks v. Sowders, 852 F.2d 882 (C.A.6 consequences of a particular plea are unclear 1988); United States v. Russell, 686 F.2d 35 or uncertain. The duty of the private Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

(C.A.D.C.1982); State v. Rojas–Martinez, We have given serious consideration to the 2005 UT 86, 125 P.3d 930, 935; In re concerns that the Solicitor General, Resendiz, 25 Cal.4th 230, 105 Cal.Rptr.2d respondent, and amici have stressed 431, 19 P.3d 1171 (2001). Kentucky describes regarding the importance of protecting the these decisions isolating an affirmative finality of convictions obtained through guilty misadvice claim as “result-driven, incestuous pleas. We confronted a similar “floodgates” ... [,and] completely lacking in legal or concern in Hill, see id., at 58, 106 S.Ct. 366, rational bases.” Brief for Respondent 31. We but nevertheless applied do not share that view, but we agree that there is no relevant difference “between an [130 S.Ct. 1485] act of commission and an act of omission” in this context. Id., at 30; Strickland, 466 U.S., Strickland to a claim that counsel had failed at 690, 104 S.Ct. 2052 (“The court must then to advise the client regarding his parole determine whether, in light of all the eligibility before he pleaded guilty.12 circumstances, the identified acts or omissions were outside the wide range of A flood did not follow in that decision's wake. professionally competent assistance”); see Surmounting Strickland 's high bar is never also State v. Paredez, 136 N.M. 533, 538– an easy task. See, e.g., 466 U.S., at 689, 104 539, 101 P.3d 799, 2004–NMSC–036. S.Ct. 2052 (“Judicial scrutiny of counsel's performance must be highly deferential”); id., A holding limited to affirmative misadvice at 693, 104 S.Ct. 2052 (observing that would invite two absurd results. First, it “[a]ttorney errors ... are as likely to be utterly would give counsel an incentive to remain harmless in a silent on matters of great importance, even when answers are readily available. Silence [559 U.S. 372] under these circumstances would be particular case as they are to be prejudicial”). fundamentally at odds with the critical Moreover, to obtain relief on this type of obligation of counsel to advise the client of claim, a petitioner must convince the court “the advantages and disadvantages of a plea that a decision to reject the plea bargain agreement.” Libretti v. United States, 516 would have been rational under the U.S. 29, 50–51, 116 S.Ct. 356, 133 L.Ed.2d 271 circumstances. See Roe v. Flores–Ortega, (1995). When attorneys know that their 528 U.S. 470, 480, 486, 120 S.Ct. 1029, 145 clients face possible exile from this country L.Ed.2d 985 (2000). There is no reason to and separation from their families, they doubt that lower courts—now quite should not be encouraged to say nothing at experienced with applying Strickland—can all.11 Second, it would deny a effectively and efficiently use its framework to [559 U.S. 371] separate specious claims from those with substantial merit. class of clients least able to represent themselves the most rudimentary advice on It seems unlikely that our decision today will deportation even when it is readily available. have a significant effect on those convictions It is quintessentially the duty of counsel to already obtained as the result of plea provide her client with available advice about bargains. For at least the past 15 years, an issue like deportation and the failure to do professional norms have generally imposed so “clearly satisfies the first prong of the an obligation on counsel to provide advice on Strickland analysis.” Hill v. Lockhart, 474 the deportation consequences of a client's U.S. 52, 62, 106 S.Ct. 366, 88 L.Ed.2d 203 plea. See, supra, at 1483–1484. We should, (1985) (White, J., concurring in judgment). therefore, presume that counsel satisfied their Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

obligation to render competent advice at the who possess the most rudimentary time their clients considered pleading guilty. understanding of the deportation Strickland, 466 U.S., at 689, 104 S.Ct. 2052. consequences of a particular criminal offense may be able to plea bargain creatively with Likewise, although we must be especially the prosecutor in order to craft a conviction careful about recognizing new grounds for and sentence that reduce the likelihood of attacking the validity of guilty pleas, in the 25 deportation, as by avoiding a conviction for years since we first applied Strickland to an offense that automatically triggers the claims of ineffective assistance at the plea removal consequence. At the same time, the stage, practice has shown that pleas are less threat of deportation may provide the frequently the subject of collateral challenges defendant with a powerful incentive to plead than convictions obtained after a trial. Pleas guilty to an offense that does not mandate account for nearly 95% of all criminal that penalty in exchange for a dismissal of a convictions.13 But they account for only charge that does. approximately 30% of the habeas petitions filed.14 The nature of relief secured by a In sum, we have long recognized that the successful collateral negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth [559 U.S. 373] Amendment right to effective assistance of counsel. Hill, 474 U.S., at 57, 106 S.Ct. 366; challenge to a guilty plea—an opportunity to see also Richardson, 397 U.S., at 770–771, 90 withdraw the plea and proceed to trial— S.Ct. 1441. The severity of deportation—“the imposes its own significant limiting principle: equivalent of banishment or exile,” Delgadillo Those who collaterally attack their guilty v. Carmichael, 332 U.S. 388, 390–391, 68 pleas lose the benefit of the bargain obtained S.Ct. 10, 92 L.Ed. 17 (1947)—only underscores as a result of the plea. Thus, a different how critical it is for counsel calculus informs [559 U.S. 374] [130 S.Ct. 1486] to inform her noncitizen client that he faces a whether it is wise to challenge a guilty plea in risk of deportation.15 a habeas proceeding because, ultimately, the challenge may result in a less favorable V outcome for the defendant, whereas a collateral challenge to a conviction obtained It is our responsibility under the Constitution after a jury trial has no similar downside to ensure that no criminal defendant— potential. whether a citizen or not—is left to the “mercies of incompetent counsel.” Finally, informed consideration of possible Richardson, 397 U.S., at 771, 90 S.Ct. 1441. deportation can only benefit both the State To satisfy this responsibility, we now hold and noncitizen defendants during the plea- that counsel must inform her client whether bargaining process. By bringing deportation his plea carries a risk of deportation. Our consequences into this process, the defense longstanding Sixth Amendment precedents, and prosecution may well be able to reach the seriousness of deportation as a agreements that better satisfy the interests of consequence of a criminal plea, and the both parties. As in this case, a criminal concomitant impact of deportation on episode may provide the basis for multiple families living lawfully in this country charges, of which only a subset mandate demand no less. deportation following conviction. Counsel Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

Taking as true the basis for his motion for be well versed in it.” Ante, at 1483. The Court postconviction relief, we have little difficulty nevertheless holds that a criminal defense attorney must provide advice in this [130 S.Ct. 1487] specialized area in those cases in which the law is “succinct and straightforward”—but concluding that Padilla has sufficiently not, perhaps, in other situations. Ante, at alleged that his counsel was constitutionally 1483–1484. This vague, halfway test will lead deficient. Whether Padilla is entitled to relief to much confusion and needless litigation. will depend on whether he can demonstrate prejudice as a result thereof, a question we do I not reach because it was not passed on below. Under Strickland, an attorney provides [559 U.S. 375] ineffective assistance if the attorney's representation does not meet reasonable See Verizon Communications Inc. v. FCC, 535 professional standards. 466 U.S., at 688, 104 U.S. 467, 530, 122 S.Ct. 1646, 152 L.Ed.2d 701 S.Ct. 2052. Until today, the longstanding and (2002). unanimous position of the federal

The judgment of the Supreme Court of [559 U.S. 376] Kentucky is reversed, and the case is remanded for further proceedings not courts was that reasonable defense counsel inconsistent with this opinion. generally need only advise a client about the direct consequences of a criminal conviction. It is so ordered. See, e.g., United States v. Gonzalez, 202 F.3d 20, 28 (C.A.1 2000) (ineffective-assistance- Justice ALITO, with whom THE CHIEF of-counsel claim fails if “based on an JUSTICE joins, concurring in the judgment. attorney's failure to advise a client of his plea's immigration consequences”); United I concur in the judgment because a criminal States v. Banda, 1 F.3d 354, 355 (C.A.5 1993) defense attorney fails to provide effective (holding that “an attorney's failure to advise a assistance within the meaning of Strickland client that deportation is a possible v. Washington, 466 U.S. 668, 104 S.Ct. 2052, consequence of a guilty plea does not 80 L.Ed.2d 674 (1984), if the attorney constitute ineffective assistance of counsel”); misleads a noncitizen client regarding the see generally Chin & Holmes, Effective removal consequences of a conviction. In my Assistance of Counsel and the Consequences view, such an attorney must (1) refrain from of Guilty Pleas, 87 Cornell L.Rev. 697, 699 unreasonably providing incorrect advice and (2002) (hereinafter Chin & Holmes) (noting (2) advise the defendant that a criminal that “virtually all jurisdictions”—including conviction may have adverse immigration “eleven federal circuits, more than thirty consequences and that, if the alien wants states, and the District of Columbia”—“hold advice on this issue, the alien should consult that defense counsel need not discuss with an immigration attorney. I do not agree with their clients the collateral consequences of a the Court that the attorney must attempt to conviction,” including deportation). While the explain what those consequences may be. As line between “direct” and “collateral” the Court concedes, “[i]mmigration law can consequences is not always clear, see ante, at be complex”; “it is a legal specialty of its 1481, n. 8, the collateral-consequences rule own”; and “[s]ome members of the bar who expresses an important truth: Criminal represent clients facing criminal charges, in defense attorneys have expertise regarding either state or federal court or both, may not the conduct of criminal proceedings. They are Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

not expected to possess—and very often do supra, at 688, 104 S.Ct. 2052 (explaining that not possess—expertise in other areas of the “[p]revailing norms of practice as reflected in law, and it is unrealistic to expect them to American Bar Association standards ... are provide expert advice on guides to determining what is reasonable, but they are only guides”). And we must recognize [130 S.Ct. 1488] that such standards may represent only the aspirations of a bar group rather than an matters that lie outside their area of training empirical assessment of actual practice. and experience. Even if the only relevant consideration were This case happens to involve removal, but “prevailing professional norms,” it is hard to criminal convictions can carry a wide variety see how those norms can support the duty the of consequences other than conviction and Court today imposes on defense counsel. sentencing, including civil commitment, civil Because many criminal defense attorneys forfeiture, the loss of the right to vote, have little understanding of immigration law, disqualification from public benefits, see ante, at 1483, it should follow that a ineligibility to possess firearms, dishonorable criminal defense attorney who refrains from discharge from the Armed Forces, and loss of providing immigration advice does not violate business or professional licenses. Chin & prevailing professional norms. But the Court's Holmes 705–706. A criminal conviction may opinion would not just require defense also severely damage a defendant's reputation counsel to warn the client of a general risk of and thus impair the defendant's ability to removal; it would also require counsel in at obtain future employment or business least some cases, to specify what the removal opportunities. All of those consequences are consequences of a conviction would be. See “seriou[s],” see ante, at 1486, but this Court ante, at 1483–1484. has The Court's new approach is particularly [559 U.S. 377] problematic because providing advice on whether a conviction for a particular offense never held that a criminal defense attorney's will make an alien removable is often quite Sixth Amendment duties extend to providing complex. “Most crimes affecting immigration advice about such matters. status are not

The Court tries to justify its dramatic [559 U.S. 378] departure from precedent by pointing to the views of various professional organizations. specifically mentioned by the [Immigration See ante, at 1482 (“The weight of prevailing and Nationality Act (INA) ], but instead fall professional norms supports the view that under a broad category of crimes, such as counsel must advise her client regarding the crimes involving moral turpitude or risk of deportation”). However, ascertaining aggravated felonies.” M. Garcia & L. Eig, CRS the level of professional competence required Report for Congress, Immigration by the Sixth Amendment is ultimately a task Consequences of Criminal Activity (Sept. 20, for the courts. E.g., Roe v. Flores–Ortega, 2006) (summary) (emphasis in original). As 528 U.S. 470, 477, 120 S.Ct. 1029, 145 has been widely acknowledged, determining L.Ed.2d 985 (2000). Although we may whether a particular crime is an “aggravated appropriately consult standards promulgated felony” or a “crime involving moral turpitude by private bar groups, we cannot delegate to [ (CIMT) ]” is not an easy task. See R. these groups our task of determining what the McWhirter, ABA, The Criminal Lawyer's Constitution commands. See Strickland, Guide to Immigration Law: Questions and Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

Answers 128 (2d ed.2006) (hereinafter ABA aggravated felony “for immigration Guidebook) (“Because of the increased purposes” or for “sentencing purposes”). The complexity of aggravated felony law, this ABA Guidebook then proceeds to explain that edition devotes a new [30–page] chapter to “attempted possession,” id., § 5.36, at 161 the subject”); id., § 5.2, at 146 (stating that the (emphasis added), of a controlled substance is aggravated felony list at 8 U.S.C. § 1101(a)(43) an aggravated felony, while “[c]onviction is not clear under the federal accessory after the fact statute is probably not an aggravated felony, [130 S.Ct. 1489] but a conviction for accessory after the fact to the manufacture of methamphetamine is an with respect to several of the listed categories, aggravated felony,” id., § 537, at 161 that “the term ‘aggravated felonies' can (emphasis added). Conspiracy or attempt to include misdemeanors,” and that the commit drug trafficking are aggravated determination of whether a crime is an “ felonies, but “[s]olicitation is not a drug- aggravated felony” is made “even more trafficking offense because a generic difficult” because “several agencies and courts solicitation offense is not an offense related to interpret the statute,” including Immigration a controlled substance and therefore not an and Customs Enforcement, the Board of aggravated felony.” Id., § 5.41, at 162. Immigration Appeals (BIA), and Federal Circuit and district courts considering Determining whether a particular crime is immigration-law and criminal-law issues); one involving moral turpitude is no easier. ABA Guidebook § 4.65, at 130 (“Because See id., at 134 (“Writing bad checks may or nothing is ever simple with immigration law, may not be a CIMT” (emphasis added)); ibid. the terms ‘conviction,’ ‘moral turpitude,’ and (“[R]eckless assault coupled with an element ‘single scheme of criminal misconduct’ are of injury, but not serious injury, is probably terms of art”); id., § 4.67, at 130 (“[T]he term not a CIMT” (emphasis added)); id., at 135 ‘moral turpitude’ evades precise definition”). (misdemeanor driving under the influence is generally not a CIMT, but may be a CIMT if Defense counsel who consults a guidebook on the DUI results in injury or if the driver knew whether a particular crime is an “aggravated that his license had been suspended or felony” will often find that the answer is not revoked); id., at 136 (“If there is no element of “easily ascertained.” For example, the ABA actual injury, the endangerment offense may Guidebook answers the question “Does not be a CIMT” (emphasis added)); ibid. simple possession count as an aggravated (“Whether [a child abuse] conviction involves felony?” as follows: “Yes, at least in the Ninth moral turpitude may depend on the Circuit.” § 5.35, at 160 (emphasis added). subsection under which the individual is After a dizzying paragraph that attempts to convicted. Child abuse done with criminal explain the evolution of the Ninth Circuit's negligence probably is not a CIMT” view, the ABA Guidebook continues: “Adding (emphasis added)). to the confusion, however, is that the Ninth Many other terms of the INA are similarly [559 U.S. 379] ambiguous or may be confusing to practitioners not versed in the intricacies of Circuit has conflicting opinions depending on immigration law. To take just a few examples, the context on whether simple drug it may possession constitutes an aggravated felony under 8 U.S.C. § 1101(a)(43).” Id., § 5.35, at [559 U.S. 380] 161 (citing cases distinguishing between whether a simple possession offense is an Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

be hard, in some cases, for defense counsel removal consequence[s]” of a conviction, the even to determine whether a client is an Court says, counsel has an affirmative duty to alien,1 or whether a advise the client that he will be subject to deportation as a result of the plea. Ante, at [130 S.Ct. 1490] 1483. But “[w]hen the law is not succinct and straightforward ..., a criminal defense particular state disposition will result in a attorney need do no more than advise a “conviction” for purposes of federal noncitizen client that pending criminal immigration law.2 The task of offering advice charges may carry a risk of adverse about the immigration consequences of a immigration consequences.” Ante, at 1483– criminal conviction is further complicated by 1484. This approach is problematic for at other problems, including significant least four reasons. variations among Circuit interpretations of federal immigration statutes; the frequency First, it will not always be easy to tell whether with which immigration law changes; a particular statutory provision is “succinct, different rules governing the immigration clear, and explicit.” How can an attorney who consequences of juvenile, first-offender, and lacks general immigration law expertise be foreign convictions; and the relationship sure that a seemingly clear statutory between the “length and type of sentence” provision actually means what it seems to say and the determination “whether [an alien] is when read in isolation? What if the subject to removal, eligible for relief from application of the provision to a particular removal, or qualified to become a naturalized case is not clear but a cursory examination of citizen,” Immigration Law and Crimes § 2:1, case law or administrative decisions would at 2–2 to 2–3. provide a definitive answer? See Immigration Law and Crimes § 2:1, at 2–2 (“Unfortunately, In short, the professional organizations and a practitioner or respondent cannot tell easily guidebooks on which the Court so heavily whether a conviction is for a removable relies are right to say that “nothing offense .... [T]he cautious practitioner or apprehensive respondent will not know [559 U.S. 381] [130 S.Ct. 1491] is ever simple with immigration law”— including the determination whether conclusively the future immigration immigration law clearly makes a particular consequences of a guilty plea”). offense removable. ABA Guidebook § 4.65, at 130; Immigration Law and Crimes § 2:1. I Second, if defense counsel must provide therefore cannot agree with the Court's advice regarding only one of the many apparent view that the Sixth Amendment collateral consequences of a criminal requires criminal defense attorneys to provide immigration advice. [559 U.S. 382]

The Court tries to downplay the severity of conviction, many defendants are likely to be the burden it imposes on defense counsel by misled. To take just one example, a conviction suggesting that the scope of counsel's duty to for a particular offense may render an alien offer advice concerning deportation excludable but not removable. If an alien consequences may turn on how hard it is to charged with such an offense is advised only determine those consequences. Where “the that pleading guilty to such an offense will not terms of the relevant immigration statute are result in removal, the alien may be induced to succinct, clear, and explicit in defining the enter a guilty plea without realizing that a Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

consequence of the plea is that the alien will determine whether the interests of justice be unable to reenter the United States if the would be served by allowing a particular alien returns to his or her home country for defendant to withdraw a plea entered into on any reason, such as to visit an elderly parent the basis of incomplete information. Cf. or to attend a funeral. See ABA Guidebook § United States v. Russell, 686 F.2d 35, 39–40 4.14, at 111 (“Often the alien is both (C.A.D.C.1982) (explaining that a district excludable and removable. At times, court's discretion to set aside a guilty plea however, the lists are different. Thus, the under the Federal Rules of Criminal oddity of an alien that is inadmissible but not Procedure should be guided by, among other deportable. This alien should not leave the considerations, “the possible existence of United States because the government will prejudice to the government's case as a result not let him back in” (emphasis in original)). of the defendant's untimely request to stand Incomplete legal advice may be worse than no trial” and “the strength of the defendant's advice at all because it may mislead and may reason for withdrawing the plea, including dissuade the client from seeking advice from whether the defendant asserts his innocence a more knowledgeable source. of the charge”).

Third, the Court's rigid constitutional rule Fourth, the Court's decision marks a major could inadvertently head off more promising upheaval in Sixth Amendment law. This ways of addressing the underlying problem— Court decided Strickland in 1984, but the such as statutory or administrative reforms majority does not cite a single case, from this requiring trial judges to inform a defendant or any other federal court, holding that on the record that a guilty plea may carry criminal defense counsel's failure to provide adverse immigration consequences. As amici advice concerning the removal consequences point out, “28 states and the District of of a criminal conviction violates a defendant's Columbia have already adopted rules, plea Sixth Amendment right to counsel. As noted forms, or statutes requiring courts to advise above, the Court's view has been rejected by criminal defendants of the possible every Federal Court of Appeals to have immigration consequences of their pleas.” considered the issue thus far. See, e.g., Brief for State of Louisiana et al. 25; accord, Gonzalez, 202 F.3d, at 28; Banda, 1 F.3d, at Chin & Holmes 708 (“A growing number of 355; Chin & Holmes 697, 699. The majority states require advice about deportation by appropriately acknowledges that the lower statute or court rule”). A nonconstitutional courts rule requiring trial judges to inform defendants on the record of the risk of [130 S.Ct. 1492] adverse immigration consequences can ensure that a defendant receives needed are “now quite experienced with applying information without putting a large number Strickland,” ante, at 1485, but it casually of criminal convictions at risk; and because dismisses the longstanding and unanimous such a warning would be given on the record, position of the lower federal courts with courts would not later have to determine respect to the scope of criminal defense whether the defendant was misrepresenting counsel's duty to advise on collateral the consequences.

[559 U.S. 383] The majority seeks to downplay its dramatic expansion of the scope of criminal defense advice of counsel. Likewise, flexible statutory counsel's duties under the Sixth Amendment procedures for withdrawing guilty pleas by claiming that this Court in Hill v. might give courts appropriate discretion to Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

L.Ed.2d 203 (1985), similarly “applied First, a rule prohibiting affirmative misadvice Strickland to a claim that counsel had failed regarding a matter as crucial to the to advise the client regarding his parole defendant's plea decision as deportation eligibility before he pleaded guilty.” Ante, at appears faithful to the scope and nature of the 1485. That Sixth Amendment duty this Court has recognized in its past cases. In particular, we [559 U.S. 384] have explained that “a guilty plea cannot be attacked as based on inadequate legal advice characterization of Hill obscures much more unless counsel was not ‘a reasonably than it reveals. The issue in Hill was whether competent attorney’ and the advice was not a criminal defendant's Sixth Amendment ‘within the range of competence demanded of right to counsel was violated where counsel attorneys misinformed the client about his eligibility for parole. The Court found it “ unnecessary to [559 U.S. 385] determine whether there may be circumstances under which erroneous advice in criminal cases.’ ” Strickland, 466 U.S., at by counsel as to parole eligibility may be 687, 104 S.Ct. 2052 (quoting McMann v. deemed constitutionally ineffective assistance Richardson, 397 U.S. 759, 770, 771, 90 S.Ct. of counsel, because in the present case we 1441, 25 L.Ed.2d 763 (1970); emphasis conclude that petitioner's allegations are added). As the Court appears to acknowledge, insufficient to satisfy the Strickland v. thorough understanding of the intricacies of Washington requirement of ‘prejudice.’ ” 474 immigration law is not “within the range of U.S., at 60, 106 S.Ct. 366. Given that Hill competence demanded of attorneys in expressly and unambiguously refused to criminal cases.” See ante, at 1483 decide whether criminal defense counsel (“Immigration law can be complex, and it is a must avoid misinforming his or her client as legal specialty of its own. Some members of to one consequence of a criminal conviction the bar who represent clients facing criminal (parole eligibility), that case plainly provides charges, in either state or federal court or no support whatsoever for the proposition both, may not be well versed in it”). By that counsel must affirmatively advise his or contrast, reasonably competent attorneys her client as to another collateral should know that it is not appropriate or consequence (removal). By the Court's responsible to hold themselves out as strange logic, Hill would support its decision authorities on a difficult and complicated here even if the Court had held that misadvice subject matter with which they are not concerning parole eligibility does not make familiar. Candor concerning the limits of counsel's performance objectively one's professional expertise, in other words, is unreasonable. After all, the Court still would within the range of duties reasonably have “applied Strickland ” to the facts of the expected of defense attorneys in criminal case at hand. cases. As the dissenting judge on

II [130 S.Ct. 1493]

While mastery of immigration law is not the Kentucky Supreme Court put it, “I do not required by Strickland, several considerations believe it is too much of a burden to place on support the conclusion that affirmative our defense bar the duty to say, ‘I do not misadvice regarding the removal know.’ ” 253 S.W.3d 482, 485 (2008). consequences of a conviction may constitute ineffective assistance. Second, incompetent advice distorts the defendant's decisionmaking process and Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

seems to call the fairness and integrity of the defense counsel who give affirmative criminal proceeding itself into question. See misadvice.” Brief for United States as Amicus Strickland, 466 U.S., at 686, 104 S.Ct. 2052 Curiae 8 (citing cases). At least three Courts (“In giving meaning to the requirement [of of Appeals have held that affirmative effective assistance of counsel], we must take misadvice on immigration matters can give its purpose—to ensure a fair trial—as the rise to ineffective assistance of counsel, at guide”). When a defendant opts to plead least in some circumstances.3 And several guilty without definitive information other Circuits have held that affirmative concerning the likely effects of the plea, the misadvice concerning nonimmigration defendant can fairly be said to assume the consequences of a conviction can violate the risk that the conviction may carry indirect Sixth Amendment even if those consequences consequences of which he or she is not aware. That is not the case when a defendant bases [559 U.S. 387] the decision to plead guilty on counsel's express misrepresentation that the defendant might be deemed “collateral.”4 By contrast, it will not be removable. In the latter case, it appears that seems hard to say that the plea was entered with the advice of constitutionally competent [130 S.Ct. 1494] counsel—or that it embodies a voluntary and no court of appeals holds that affirmative intelligent decision to forsake constitutional misadvice concerning collateral consequences [559 U.S. 386] in general and removal in particular can never give rise to ineffective assistance. In rights. See ibid. (“The benchmark for judging short, the considered and thus far unanimous any claim of ineffectiveness must be whether view of the lower federal courts charged with counsel's conduct so undermined the proper administering Strickland clearly supports the functioning of the adversarial process that the conclusion that that Kentucky Supreme trial cannot be relied on as having produced a Court's position goes too far. just result”). In concluding that affirmative misadvice Third, a rule prohibiting unreasonable regarding the removal consequences of a misadvice regarding exceptionally important criminal conviction may constitute ineffective collateral matters would not deter or interfere assistance, I do not mean to suggest that the with ongoing political and administrative Sixth Amendment does no more than require efforts to devise fair and reasonable solutions defense counsel to avoid misinformation. to the difficult problem posed by defendants When a criminal defense attorney is aware who plead guilty without knowing of certain that a client is an alien, the attorney should important collateral consequences. advise the client that a criminal conviction may have adverse consequences under the Finally, the conclusion that affirmative immigration laws and that the client should misadvice regarding the removal consult an immigration specialist if the client consequences of a conviction can give rise to wants advice on that subject. By putting the ineffective assistance would, unlike the client on notice of the danger of removal, such Court's approach, not require any upheaval in advice would significantly reduce the chance the law. As the Solicitor General points out, that the client would plead guilty under a “[t]he vast majority of the lower courts mistaken premise. considering claims of ineffective assistance in the plea context have [distinguished] between III defense counsel who remain silent and Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

In sum, a criminal defense attorney should requires counsel to provide accurate advice not be required to provide advice on concerning the potential removal immigration law, a complex specialty consequences of a guilty plea. For the same reasons, but unlike the concurrence, I do not [559 U.S. 388] believe that affirmative misadvice about those consequences renders that generally lies outside the scope of a criminal defense attorney's expertise. On the [130 S.Ct. 1495] other hand, any competent criminal defense attorney should appreciate the extraordinary an attorney's importance that the risk of removal might have in the client's determination whether to [559 U.S. 389] enter a guilty plea. Accordingly, unreasonable and incorrect information concerning the risk assistance in defending against the of removal can give rise to an ineffectiveness prosecution constitutionally inadequate; or claim. In addition, silence alone is not enough that the Sixth Amendment requires counsel to to satisfy counsel's duty to assist the client. warn immigrant defendants that a conviction Instead, an alien defendant's Sixth may render them removable. Statutory Amendment right to counsel is satisfied if provisions can remedy these concerns in a defense counsel advises the client that a more targeted fashion, and without producing conviction may have immigration permanent, and legislatively irreparable, consequences, that immigration law is a overkill. specialized field, that the attorney is not an immigration lawyer, and that the client * * * should consult an immigration specialist if The Sixth Amendment as originally the client wants advice on that subject. understood and ratified meant only that a Justice SCALIA, with whom Justice THOMAS defendant had a right to employ counsel, or to joins, dissenting. use volunteered services of counsel. See, United States v. Van Duzee, 140 U.S. 169, In the best of all possible worlds, criminal 173, 11 S.Ct. 758, 35 L.Ed. 399 (1891); W. defendants contemplating a guilty plea ought Beaney, Right to Counsel in American Courts to be advised of all serious collateral 21, 28–29 (1955). We have held, however, consequences of conviction, and surely ought that the Sixth Amendment requires the not to be misadvised. The Constitution, provision of counsel to indigent defendants at however, is not an all-purpose tool for judicial government expense, Gideon v. Wainwright, construction of a perfect world; and when we 372 U.S. 335, 344–345, 83 S.Ct. 792, 9 ignore its text in order to make it that, we L.Ed.2d 799 (1963), and that the right to “the often find ourselves swinging a sledge where a assistance of counsel” includes the right to tack hammer is needed. effective assistance, Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. The Sixth Amendment guarantees the 2052, 80 L.Ed.2d 674 (1984). Even assuming accused a lawyer “for his defence” against a the validity of these holdings, I reject the “criminal prosecutio[n]”—not for sound significant further extension that the Court, advice about the collateral consequences of and to a lesser extent the concurrence, would conviction. For that reason, and for the create. We have until today at least retained practical reasons set forth in Part I of Justice the Sixth Amendment's textual limitation to ALITO's concurrence, I dissent from the criminal prosecutions. “[W]e have held that Court's conclusion that the Sixth Amendment ‘defence’ means defense at trial, not defense Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

in relation to other objectives that may be assumes, that once counsel is appointed all important to the accused.” Rothgery v. professional responsibilities of counsel—even Gillespie County, 554 U.S. 191, ––––, 128 those extending beyond defense against the S.Ct. 2578, 2594, 171 L.Ed.2d 366 (2008) prosecution—become constitutional (ALITO, J., concurring) (summarizing cases). commands. Cf. Cobb, supra, at 171, n. 2, 121 We have limited the Sixth Amendment to S.Ct. 1335; Moran, supra, at 430, 106 S.Ct. legal advice directly related to defense against 1135. Because the subject of the misadvice prosecution of the charged offense—advice at here was not the prosecution for which Jose trial, of course, but also advice at Padilla was entitled to effective assistance of postindictment interrogations and lineups, counsel, the Sixth Amendment has no Massiah v. United States, 377 U.S. 201, 205– application. 206, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964); United States v. Wade, 388 U.S. 218, 236– [130 S.Ct. 1496] 238, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and in general advice at all phases of the Adding to counsel's duties an obligation to prosecution where the defendant would be at advise about a conviction's collateral a disadvantage when pitted alone against the consequences has no logical stopping-point. legally trained agents of the state, see As the concurrence observes,

[559 U.S. 390] “[A] criminal convictio[n] can carry a wide variety of Moran v. Burbine, 475 U.S. 412, 430, 106 consequences other than S.Ct. 1135, 89 L.Ed.2d 410 (1986). Not only conviction and sentencing, have we not required advice of counsel including civil commitment, regarding consequences collateral to civil forfeiture, the loss of the prosecution, we have not even required right to vote, disqualification counsel appointed to defend against one from public benefits, prosecution to be present when the defendant ineligibility to possess firearms, is interrogated in connection with another dishonorable discharge from the possible prosecution arising from the same Armed Forces, and loss of event. Texas v. Cobb, 532 U.S. 162, 164, 121 business or professional S.Ct. 1335, 149 L.Ed.2d 321 (2001). licenses.... All of those consequences are ‘serious,’ ... .” There is no basis in text or in principle to Ante, at 1487–1488 (ALITO, J., extend the constitutionally required advice concurring in judgment). regarding guilty pleas beyond those matters germane to the criminal prosecution at [559 U.S. 391] hand—to wit, the sentence that the plea will produce, the higher sentence that conviction But it seems to me that the concurrence after trial might entail, and the chances of suffers from the same defect. The same such a conviction. Such matters fall within indeterminacy, the same inability to know “the range of competence demanded of what areas of advice are relevant, attaches to attorneys in criminal cases,” McMann v. misadvice. And the concurrence's suggestion Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, that counsel must warn defendants of 25 L.Ed.2d 763 (1970). See id., at 769–770, potential removal consequences, see ante, at 90 S.Ct. 1441 (describing the matters counsel 1484–1485—what would come to be known as and client must consider in connection with a the “Padilla warning”—cannot be limited to contemplated guilty plea). We have never those consequences except by judicial caprice. held, as the logic of the Court's opinion It is difficult to believe that the warning Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

requirement would not be extended, for [130 S.Ct. 1497] example, to the risk of heightened sentences in later federal prosecutions pursuant to the nonadvice, or failure to warn, other than Armed Career Criminal Act, 18 U.S.C. § ification of a criminal conviction after the 924(e). We could expect years of elaboration witnesses and evidence needed for retrial upon these new issues in the lower courts, have disappeared. Federal immigration law prompted by the defense bar's devising of might provide, for example, that the near- ever-expanding categories of plea- automatic removal which follows from certain invalidating misadvice and failures to warn— criminal convictions will not apply where the not to mention innumerable evidentiary conviction rested upon a guilty plea induced hearings to determine whether misadvice by counsel's misadvice regarding removal really occurred or whether the warning was consequences. Or legislation might put the really given. government to a choice in such circumstances: Either retry the defendant or The concurrence's treatment of misadvice forgo the removal. But all that has been seems driven by concern about the precluded in favor of today's sledge hammer. voluntariness of Padilla's guilty plea. See ante, at 1483. But that concern properly In sum, the Sixth Amendment guarantees relates to the Due Process Clauses of the Fifth adequate assistance of counsel in defending and Fourteenth Amendments, not to the Sixth against a pending criminal prosecution. We Amendment. See McCarthy v. United States, should limit both the constitutional obligation 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d to provide advice and the consequences of 418 (1969); Brady v. United States, 397 U.S. bad advice to that well defined area. 742, 748, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Padilla has not argued before us that ------his guilty plea was not knowing and Notes: voluntary. If that is, however, the true substance of his claim (and if he has properly 1 Padilla's crime, like virtually every drug preserved it) the state court can address it on offense except for only the most insignificant 1 remand. marijuana offenses, is a deportable offense under 8 U.S.C. § 1227(a)(2)(B)(i). [559 U.S. 392] 2 In 1907, Congress expanded the class of But we should not smuggle the claim into the excluded persons to include individuals who Sixth Amendment. “admit” to having committed a crime of moral turpitude. Act of Feb. 20, 1907, ch. 1134, 34 The Court's holding prevents legislation that Stat. 899. could solve the problems addressed by today's opinions in a more precise and targeted 3 As enacted, the statute provided: fashion. If the subject had not been constitutionalized, legislation could specify “That the provision of this which categories of misadvice about matters section respecting the ancillary to the prosecution invalidate plea deportation of aliens convicted agreements, what collateral consequences of a crime involving moral counsel must bring to a defendant's attention, turpitude shall not apply to one and what warnings must be given.2 Moreover, who has been pardoned, nor legislation could provide consequences for the shall such deportation be made misadvice, or directed if the court, or judge thereof, sentencing such alien Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

for such crime shall, at the time 5 The INA separately codified the moral of imposing judgment or turpitude offense provision and the narcotics passing sentence or within offense provision within 8 U.S.C. § 1251(a) thirty days thereafter, ... make a (1994 ed.) under subsections (a)(4) and recommendation to the (a)(11), respectively. See 66 Stat. 201, 204, Secretary of Labor that such 206. The JRAD procedure, codified in 8 alien shall not be deported in U.S.C. § 1251(b) (1994 ed.), applied only to pursuance of this Act.” 1917 Act, the “provisions of subsection (a)(4),” the 39 Stat. 889–890. crimes-of-moral-turpitude provision. 66 Stat. 208; see United States v. O'Rourke, 213 F.2d This provision was codified in 8 759, 762 (C.A.8 1954) (recognizing that, U.S.C. § 1251(b) (1994 ed.) under the 1952 INA, narcotics offenses were (transferred to § 1227 (2006 no longer eligible for JRADs). ed.)). The judge's nondeportation 6 The changes to our immigration law have recommendation was binding also involved a change in nomenclature; the on the Secretary of Labor and, statutory text now uses the term “removal” later, the Attorney General after rather than “deportation.” See Calcano– control of immigration removal Martinez v. INS, 533 U.S. 348, 350, n. 1, 121 matters was transferred from S.Ct. 2268, 150 L.Ed.2d 392 (2001). the former to the latter. See 7 Janvier v. United States, 793 See Brief for Asian American Justice Center F.2d 449, 452 (C.A.2 1986). et al. as Amici Curiae 12–27 (providing real- world examples). 4 Congress first identified narcotics offenses 8 as a special category of crimes triggering There is some disagreement among the deportation in the 1922 Narcotic Drug Act. courts over how to distinguish between direct Act of May 26, 1922, ch. 202, 42 Stat. 596. and collateral consequences. See Roberts, After the 1922 Act took effect, there was some Ignorance is Effectively Bliss: Collateral initial confusion over whether a narcotics Consequences, Silence, and Misinformation offense also had to be a crime of moral in the Guilty–Plea Process, 95 Iowa L.Rev. turpitude for an individual to be deportable. 119, 124, n. 15 (2009). The disagreement over See Weedin v. Moy Fat, 8 F.2d 488, 489 how to apply the direct/collateral distinction (C.A.9 1925) (holding that an individual who has no bearing on the disposition of this case committed narcotics offense was not because, as even Justice ALITO agrees, deportable because offense did not involve counsel must, at the very least, advise a moral turpitude). However, lower courts noncitizen “defendant that a criminal eventually agreed that the narcotics offense conviction may have adverse immigration provision was “special,” Chung Que Fong v. consequences,” post, at 1487 (opinion Nagle, 15 F.2d 789, 790 (C.A.9 1926); thus, a concurring in judgment). See also post, at narcotics offense did not need also to be a 1494 (“I do not mean to suggest that the Sixth crime of moral turpitude (or to satisfy other Amendment does no more than require requirements of the 1917 Act) to trigger defense counsel to avoid misinformation”). In deportation. See United States ex rel. his concurring opinion, Justice ALITO has Grimaldi v. Ebey, 12 F.2d 922, 923 (C.A.7 thus departed from the strict rule applied by 1926); Todaro v. Munster, 62 F.2d 963, 964 the Supreme Court of Kentucky and in the (C.A.10 1933). two federal cases that he cites, post, at 1487. 9 See, e.g., United States v. Gonzalez, 202 F.3d 20 (C.A.1 2000); United States v. Del Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

Rosario, 902 F.2d 55 (C.A.D.C.1990); United respecting a guilty plea. 474 States v. Yearwood, 863 F.2d 6 (C.A.4 1988); U.S., at 58, 106 S.Ct. 366 (“We Santos–Sanchez v. United States, 548 F.3d hold, therefore, that the two- 327 (C.A.5 2008); Broomes v. Ashcroft, 358 part Strickland v. Washington F.3d 1251 (C.A.10 2004); United States v. test applies to challenges to Campbell, 778 F.2d 764 (C.A.11 1985); guilty pleas based on ineffective Oyekoya v. State, 558 So.2d 990 assistance of counsel”). It is true (Ala.Ct.Crim.App.1989); State v. Rosas, 183 that Hill does not control the Ariz. 421, 904 P.2d 1245 (App.1995); State v. question before us. But its Montalban, 2000–2739 (La.2/26/02), 810 import is nevertheless clear. So.2d 1106; Commonwealth v. Frometa, 520 Whether Strickland applies to Pa. 552, 555 A.2d 92 (1989). Padilla's claim follows from Hill, regardless of the fact that the 10 As Justice ALITO explains at length, Hill Court did not resolve the deportation consequences are often unclear. particular question respecting Lack of clarity in the law, however, does not misadvice that was before it. obviate the need for counsel to say something about the possibility of deportation, even 13 See Dept. of Justice, Bureau of Justice though it will affect the scope and nature of Statistics, Sourcebook of Criminal Justice counsel's advice. Statistics 2003, p. 418 (31st ed. 2005) (Table 5.17) (only approximately 5%, or 8,612 out of 11 As the Commonwealth conceded at oral 68,533, of federal criminal prosecutions go to argument, were a defendant's lawyer to know trial); id., at 450 (Table 5.46) (only that a particular offense would result in the approximately 5% of all state felony criminal client's deportation and that, upon prosecutions go to trial). deportation, the client and his family might well be killed due to circumstances in the 14 See V. Flango, National Center for State client's home country, any decent attorney Courts, Habeas Corpus in State and Federal would inform the client of the consequences Courts 36–38 (1994) (demonstrating that 5% of his plea. Tr. of Oral Arg. 37–38. We think of defendants whose conviction was the result the same result should follow when the stakes of a trial account for approximately 70% of are not life and death but merely “banishment the habeas petitions filed). or exile,” Delgadillo v. Carmichael, 332 U.S. 15 388, 390–391, 68 S.Ct. 10, 92 L.Ed. 17 (1947). To this end, we find it significant that the plea form currently used in Kentucky courts 12 However, we concluded that, even though provides notice of possible immigration Strickland applied to petitioner's claim, he consequences. Ky. Admin. Office of Courts, had not sufficiently alleged prejudice to Motion to Enter Guilty Plea, Form AOC–491 satisfy Strickland 's second prong. Hill, 474 (Rev.2/2003), U.S., at 59–60, 106 S.Ct. 366. This disposition http://courts.ky.gov/NR/rdonlyres/ further underscores the fact that it is often 55E1F54E–ED5C–4A30–B1D5– quite difficult for petitioners who have 4C43C7ADD63C/0/491.pdf (as visited Mar. acknowledged their guilt to satisfy Strickland 29, 2010, and available in Clerk of Court's 's prejudice prong. case file). Further, many States require trial courts to advise defendants of possible Justice ALITO believes that the immigration consequences. See, e.g., Alaska Court misreads Hill, post, at Rule Crim. Proc. 11(c)(3)(C) (2009–2010); 1491–1492. In Hill, the Court Cal.Penal Code Ann. § 1016.5 (West 2008); recognized—for the first time— Conn. Gen.Stat. § 54–1j (2009); D. C.Code § that Strickland applies to advice Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

16–713 (2001); Fla. Rule Crim. Proc. particular state disposition as a conviction for 3.172(c)(8) (Supp.2010); Ga.Code Ann. § 17– immigration purposes. In fact, the [BIA] 7–93(c) (1997); Haw.Rev.Stat. Ann. § 802E–2 treats certain state criminal dispositions as (2007); Iowa Rule Crim. Proc. 2.8(2)(b) (3) convictions even though the state treats the (Supp.2009); Md. Rule 4–242 (Lexis 2009); same disposition as a dismissal”). Mass. Gen. Laws, ch. 278, § 29D (2009); 3 Minn. Rule Crim. Proc. 15.01 (2009); See United States v. Kwan, 407 F.3d 1005, Mont.Code Ann. § 46–12–210 (2009); N. M. 1015–1017 (C.A.9 2005); United States v. Rule Crim. Form 9–406 (2009); N. Y.Crim. Couto, 311 F.3d 179, 188 (C.A.2 2002); Proc. Law Ann. § 220.50(7) (West Downs–Morgan v. United States, 765 F.2d Supp.2009); N. C. Gen.Stat. Ann. § 15A–1022 1534, 1540–1541 (C.A.11 1985) (limiting (Lexis 2007); Ohio Rev.Code Ann. § 2943.031 holding to the facts of the case); see also (West 2006); Ore.Rev.Stat. § 135.385 (2007); Santos–Sanchez v. United States, 548 F.3d R. I. Gen. Laws § 12–12–22 (Lexis 327, 333–334 (C.A.5 2008) (concluding that Supp.2008); Tex.Code. Ann.Crim. Proc., Art. counsel's advice was not objectively 26.13(a)(4) (Vernon Supp.2009); Vt. Stat. unreasonable where counsel did not purport Ann., Tit. 13, § 6565(c)(1) (Supp.2009); to answer questions about immigration law, Wash. Rev.Code § 10.40.200 (2008); Wis. did not claim any expertise in immigration Stat. § 971.08 (2005–2006). law, and simply warned of “possible” deportation consequence; use of the word 1 Citizens are not deportable, but “[q]uestions “possible” was not an affirmative of citizenship are not always simple.” ABA misrepresentation, even though it could Guidebook § 4.20, at 113 (explaining that U.S. indicate that deportation was not a certain citizenship conferred by blood is “ ‘derivative,’ consequence). ” and that “[d]erivative citizenship depends 4 on a number of confusing factors, including See Hill v. Lockhart, 894 F.2d 1009, 1010 whether the citizen parent was the mother or (C.A.8 1990) (en banc) (“[T]he erroneous father, the immigration laws in effect at the parole-eligibility advice given to Mr. Hill was time of the parents' and/or defendant's birth, ineffective assistance of counsel under and the parents' marital status”). Strickland v. Washington ”); Sparks v. Sowders, 852 F.2d 882, 885 (C.A.6 1988) 2 “A disposition that is not a ‘conviction,’ (“[G]ross misadvice concerning parole under state law may still be a ‘conviction’ for eligibility can amount to ineffective assistance immigration purposes.” Id., § 4.32, at 117 of counsel”); id., at 886 (KENNEDY, J., (citing Matter of Salazar–Regino, 23 I. & N. concurring) (“When the maximum possible Dec. 223, 231, 2002 WL 339535 (BIA 2002) exposure is overstated, the defendant might (en banc)). For example, state law may define well be influenced to accept a plea agreement the term “conviction” not to include a he would otherwise reject”); Strader v. deferred adjudication, but such an Garrison, 611 F.2d 61, 65 (C.A.4 1979) adjudication would be deemed a conviction (“[T]hough parole eligibility dates are for purposes of federal immigration law. See collateral consequences of the entry of a guilty ABA Guidebook § 4.37; accord, D. plea of which a defendant need not be Kesselbrenner & L. Rosenberg, Immigration informed if he does not inquire, when he is Law and Crimes § 2:1, p. 2–2 (2008) grossly misinformed about it by his lawyer, (hereinafter Immigration Law and Crimes) and relies upon that misinformation, he is (“A practitioner or respondent will not even deprived of his constitutional right to know whether the Department of Homeland counsel”). Security (DHS) or the Executive Office for Immigration Review (EOIR) will treat a Padilla v. Kentuchy, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)

1 I do not mean to suggest that the Due Process Clause would surely provide relief. We have indicated that awareness of “direct consequences” suffices for the validity of a guilty plea. See Brady, 397 U.S., at 755, 90 S.Ct. 1463 (internal quotation marks omitted). And the required colloquy between a federal district court and a defendant required by Federal Rule of Criminal Procedure 11(b) (formerly Rule 11(c)), which we have said approximates the due process requirements for a valid plea, see Libretti v. United States, 516 U.S. 29, 49–50, 116 S.Ct. 356, 133 L.Ed.2d 271 (1995), does not mention collateral consequences. Whatever the outcome, however, the effect of misadvice regarding such consequences upon the validity of a guilty plea should be analyzed under the Due Process Clause.

2 As the Court's opinion notes, ante, at 1486, n. 15, many States—including Kentucky— already require that criminal defendants be warned of potential removal consequences.

------Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

133 S.Ct. 2276 jury instructions, to determine which 186 L.Ed.2d 438 alternative element formed the basis of the 81 USLW 4490 defendant's prior conviction.

Matthew Robert DESCAMPS, Petitioner Descamps was convicted of Petitioner being a felon in possession of a firearm. The v. Government sought an ACCA sentence UNITED STATES. enhancement, pointing to Descamps' three prior convictions, including one for burglary No. 11–9540. under California Penal Code Ann. § 459, which provides that a “person who enters” Supreme Court of the United States certain locations “with intent to commit grand or petit larceny or any felony is guilty of Argued Jan. 7, 2013. burglary.” In imposing an enhanced sentence, Decided June 20, 2013. the District Court rejected Descamps' argument that his § 459 conviction cannot [133 S.Ct. 2278] serve as an ACCA predicate because § 459 goes beyond the “generic” definition of burglary. The Ninth Circuit affirmed, holding that its decision in United States v. Aguila– Montes de Oca, 655 F.3d 915, permits the * Syllabus application of the modified categorical approach to a prior conviction under a statute that is “categorically broader than the generic The Armed Career Criminal Act (ACCA) offense.” It found that Descamps' § 459 increases the sentences of certain conviction, as revealed in the plea colloquy, rested on facts satisfying the elements of [133 S.Ct. 2279] generic burglary. federal defendants who have three prior Held : The modified categorical approach convictions “for a violent felony,” including does not apply to statutes like § 459 that “burglary, arson, or extortion.” 18 U.S.C. § contain a single, indivisible set of elements. 924(e). To determine whether a past Pp. 2281 – 2293. conviction is for one of those crimes, courts use a “categorical approach”: They compare (a) This Court's caselaw all but resolves the statutory elements of a prior conviction this case. In Taylor v. United States, 495 U.S. with the elements of the “generic” crime— i.e., 575, 110 S.Ct. 2143, 109 L.Ed.2d 607, and the offense as commonly understood. If the Shepard v. United States, 544 U.S. 13, 125 statute's elements are the same as, or S.Ct. 1254, 161 L.Ed.2d 205, the Court narrower than, those of the generic offense, approved the use of a modified categorical the prior conviction qualifies as an ACCA approach in a “narrow range of cases” in predicate. When a prior conviction is for which a divisible statute, listing potential violating a “divisible statute”—one that sets offense elements in the alternative, renders out one or more of the elements in the opaque which element played a part in the alternative, e.g., burglary involving entry into defendant's conviction. Because a sentencing a building or an automobile—a “modified court cannot tell, simply by looking at a categorical approach” is used. That approach divisible statute, which version of the offense permits sentencing courts to consult a limited a defendant was convicted of, the court is class of documents, such as indictments and permitted to consult extra-statutory Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

documents—but only to assess whether the determine which alternative element was the defendant was convicted of the particular basis for the conviction, the Circuit looks to “statutory definition” that corresponds to the those materials to discover what the generic offense. Nijhawan v. Holder, 557 U.S. defendant actually did. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22, and Johnson v. United States, 559 U.S. 133, 130 Under ACCA, the sentencing court's S.Ct. 1265, 176 L.Ed.2d 1, also emphasized finding of a predicate offense indisputably this elements-based rationale for the increases the maximum penalty. Accordingly, modified categorical approach. That approach that finding would (at least) raise serious plays no role here, where the dispute does not Sixth Amendment concerns if it went beyond concern alternative elements but a simple merely identifying a prior conviction. That is discrepancy between generic burglary and § why Shepard refused to permit sentencing 459. Pp. 2281 – 2286. courts to make a disputed determination about what facts must have supported a (b) The Ninth Circuit's Aguila–Montes defendant's conviction. 544 U.S., at 25, 125 approach turns an elements-based inquiry S.Ct. 1254 (plurality opinion). Yet the Ninth into an evidence-based one, asking not Circuit flouts this Court's reasoning by whether “statutory definitions” necessarily authorizing judicial factfinding that goes far require an adjudicator to find the beyond the recognition of a prior conviction.

[133 S.Ct. 2280] The Ninth Circuit's decision also creates the same “daunting” difficulties and generic offense, but whether the prosecutor's inequities that first encouraged the adoption case realistically led the adjudicator to find of the categorical approach. Sentencing courts certain facts. Aguila–Montes has no roots in following Aguila–Montes would have to this Court's precedents. In fact, it subverts expend resources examining (often aged) those decisions, conflicting with each of the documents for evidence that a defendant rationales supporting the categorical admitted, or a prosecutor showed, facts that, approach and threatening to undo all its although unnecessary to the crime of benefits. Pp. 2286 – 2291. conviction, satisfied an element of the relevant generic offense. And the Aguila– (1) Taylor 's elements-centric categorical Montes approach would also deprive many approach comports with ACCA's text and defendants of the benefits of their negotiated history, avoids Sixth Amendment concerns plea deals. Pp. 2287 – 2290. that would arise from sentencing courts' making factual findings that properly belong (2) In defending Aguila– Montes, the to juries, and averts “the practical difficulties Ninth Circuit denied any real distinction and potential unfairness of a factual between divisible and indivisible statutes approach.” 495 U.S., at 601, 110 S.Ct. 2143. extending further than the generic offense. But the Circuit's efforts to imaginatively ACCA's language shows that Congress reconceive all indivisible statutes as divisible intended sentencing courts “to look only to ones are unavailing. Only divisible statutes the fact that the defendant had been enable a sentencing court to conclude that a convicted of crimes falling within certain jury (or judge at a plea hearing) has convicted categories, and not to the facts underlying the the defendant of every element of the generic prior convictions.” Id., at 600, 110 S.Ct. 2143. crime. Pp. 2289 – 2291. The Ninth Circuit's approach runs headlong into that congressional choice. Instead of (c) The Government offers a slightly reviewing extra-statutory documents only to different argument: It contends that the Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

modified categorical approach should apply Counsel of Record, Lanny A. Breuer, Assistant where, as here, the mismatch of elements Attorney General, Michael R. Dreeben, between the crime of conviction and the Deputy Solicitor General, Benjamin J. generic offense results not from a missing Horwich, Assistant to the Solicitor General, element but from an element's overbreadth. Daniel S. Goodman, Attorney, Department of But that distinction is malleable and Justice, Washington, DC, for Respondent. manipulable. And in any event, it is a distinction without a difference. Whether the Justice KAGAN delivered the opinion statute of conviction has an overbroad or of the Court. missing element, the problem is the same: Because of the mismatch in elements, a The Armed Career Criminal Act (ACCA person convicted under that statute is never or Act), 18 U.S.C. § 924(e), increases the convicted of the generic crime. Pp. 2291 – sentences of certain federal defendants who 2293. have three prior convictions “for a violent felony,” including “burglary, arson, or (d) Because generic unlawful entry is not extortion.” To determine whether a past an element, or an alternative element of, § conviction is for one of those crimes, courts 459, a conviction under that statute is use what has become known as the “categorical approach”: They compare the [133 S.Ct. 2281] elements of the statute forming the basis of the defendant's conviction with the elements never for generic burglary. Descamps' ACCA of the “generic” crime— i.e., the offense as enhancement was therefore improper. Pp. commonly understood. The prior conviction 2292 – 2293. qualifies as an ACCA predicate only if the statute's elements are the same as, or 466 Fed.Appx. 563, reversed. narrower than, those of the generic offense.

KAGAN, J., delivered the opinion of the We have previously approved a variant Court, in which ROBERTS, C.J., and SCALIA, of this method—labeled (not very inventively) KENNEDY, GINSBURG, BREYER, and the “modified categorical approach”—when a SOTOMAYOR, JJ., joined. KENNEDY, J., prior conviction is for violating a so-called filed a concurring opinion. THOMAS, J., filed “divisible statute.” That kind of statute sets an opinion concurring in the judgment. out one or more elements of the offense in the ALITO, J., filed a dissenting opinion. alternative—for example, stating that burglary involves entry into a building or an automobile. If one alternative (say, a Dan B. Johnson, Spokane, WA, for Petitioner. building) matches an element in the generic offense, but the other (say, an automobile) Benjamin J. Horwich, Washington, DC, for does not, the modified categorical approach Respondent. permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to determine which Matthew Campbell, Assistant Federal alternative formed the basis of the Defender, Federal Defenders of Eastern defendant's prior conviction. The court can Washington and Idaho, Spokane, WA, Dan B. then do what the categorical approach Johnson, Counsel of Record, Spokane, WA, demands: compare the elements of the crime for Petitioner. of conviction (including the alternative element used in the case) with the elements of Donald B. Verrilli, Jr., Solicitor General, the generic crime. Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

This case presents the question whether potential risk of physical injury to another.” § sentencing courts may also consult those 924(e)(2)(B). additional documents when a defendant was convicted under an “indivisible” statute— i.e., Descamps argued that his prior burglary one not containing alternative elements—that conviction could not count as an ACCA criminalizes a broader swath of conduct than predicate offense under our categorical the relevant generic offense. That would approach. He had pleaded guilty to violating enable a court to decide, based on California Penal Code Ann. § 459 (West information about a case's underlying facts, 2010), which provides that a “person who that the defendant's prior conviction qualifies enters” certain locations “with intent to as an ACCA predicate even though the commit grand or petit larceny or any felony is elements guilty of burglary.” That statute does not require the entry to have been unlawful in the [133 S.Ct. 2282] way most burglary laws do. Whereas burglary statutes generally demand breaking and of the crime fail to satisfy our categorical test. entering or similar conduct, California's does Because that result would contravene our not: It covers, for example, a shoplifter who prior decisions and the principles underlying enters a store, like any customer, during them, we hold that sentencing courts may not normal business hours. See People v. Barry, apply the modified categorical approach when 94 Cal. 481, 483–484, 29 P. 1026, 1026–1027 the crime of which the defendant was (1892). In sweeping so widely, the state law convicted has a single, indivisible set of goes beyond the normal, “generic” definition elements. of burglary. According to Descamps, that asymmetry of offense elements precluded his I conviction under § 459 from serving as an ACCA predicate, whether or not his own Petitioner Michael Descamps was burglary involved an unlawful entry that convicted of being a felon in possession of a could have satisfied the requirements of the firearm, in violation of 18 U.S.C. § 922(g). generic crime. That unadorned offense carries a maximum penalty of 10 years in prison. The The District Court disagreed. According Government, however, sought an enhanced to the court, our modified categorical sentence under ACCA, based on Descamps' approach permitted it to examine certain prior state convictions for burglary, robbery, documents, including the record of the plea and felony harassment. colloquy, to discover whether Descamps had “admitted the elements of a generic burglary” ACCA prescribes a mandatory minimum when entering his plea. App. 50a. And that sentence of 15 years for a person who violates transcript, the court ruled, showed that § 922(g) and “has three previous convictions Descamps had done so. At the plea hearing, ... for a violent felony or a serious drug the prosecutor proffered that the crime “ ‘ offense.” § 924(e)(1). The Act defines a involve[d] the breaking and entering of a “violent felony” to mean any felony, whether grocery store,’ ” and Descamps failed to object state or federal, that “has as an element the to that statement. Ibid. The plea proceedings, use, attempted use, or threatened use of the District Court thought, thus established physical force against the person of another,” that Descamps' prior conviction qualified as a or that “is burglary, arson, or extortion, generic burglary (and so as a “violent felony”) involves use of explosives, or otherwise under ACCA. Applying the requisite penalty involves conduct that presents a serious enhancement, the court sentenced Descamps Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

to 262 months in prison—more than twice the convert Descamps' conviction under § 459 term he would otherwise have received. into an ACCA predicate, because that state law defines burglary not alternatively, but The Court of Appeals for the Ninth only more broadly than the generic offense. Circuit affirmed, relying on its recently issued decision in United States v. Aguila–Montes We begin with Taylor v. United States, de Oca, 655 F.3d 915 (2011) (en banc) ( per 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 curiam ). There, a divided en banc court took (1990), which established the rule for much the same view of the modified determining when a defendant's prior categorical approach as had the District Court conviction counts as one of ACCA's in this case. The en banc court held that when enumerated predicate offenses ( e.g., a sentencing court considers a conviction burglary). Taylor adopted a “formal under § 459—or categorical approach”: Sentencing courts may “look only to the statutory definitions”— i.e., [133 S.Ct. 2283] the elements—of a defendant's prior offenses, and not “to the particular facts underlying any other statute that is “categorically those convictions.” Id., at 600, 110 S.Ct. 2143. broader than the generic offense”—the court If the relevant statute has the same elements may scrutinize certain documents to as the “generic” ACCA crime, then the prior determine the factual basis of the conviction. conviction can serve as an ACCA predicate; so See id., at 940. Applying that approach, the too if the statute defines the crime more Court of Appeals here found that Descamps' narrowly, because anyone convicted under plea, as revealed in the colloquy, “rested on that law is “necessarily ... guilty of all the facts that satisfy the elements of the generic [generic crime's] elements.” Id., at 599, 110 definition of burglary.” 466 Fed.Appx. 563, S.Ct. 2143. But if the statute sweeps more 565 (2012). broadly than the generic crime, a conviction under that law cannot count as an ACCA We granted certiorari, 567 U.S. ––––, predicate, even if the defendant actually 133 S.Ct. 90, 183 L.Ed.2d 730 (2012), to committed the offense in its generic form. resolve a Circuit split on whether the The key, we emphasized, is elements, not modified categorical approach applies to facts. So, for example, we held that a statutes like § 459 that contain a single, defendant can receive an ACCA enhancement “indivisible” set of elements sweeping more for burglary only if he was convicted of a broadly than the corresponding generic crime having “the basic elements” of generic 1 offense. We hold that it does not, and so burglary— i.e., “unlawful or unprivileged reverse. entry into, or remaining in, a building or structure, with intent to commit a crime.” II Ibid. And indeed, we indicated that the very statute at issue here, § 459, does not fit that Our caselaw explaining the categorical bill because “California defines ‘burglary’ so approach and its “modified” counterpart all broadly as to include shoplifting.” Id., at 591, but resolves this case. In those decisions, as 110 S.Ct. 2143. shown below, the modified approach serves a limited function: It helps effectuate the At the same time, Taylor recognized a categorical analysis when a divisible statute, “narrow range of cases” in which sentencing listing potential offense elements in the courts—applying what we would later dub the alternative, renders opaque which element “modified categorical approach”— played a part in the defendant's conviction. So understood, the modified approach cannot [133 S.Ct. 2284] Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

may look beyond the statutory elements to as we had anticipated in Taylor, the divisible “the charging paper and jury instructions” nature of the Massachusetts burglary statute used in a case. Id., at 602, 110 S.Ct. 2143. To confounded that inquiry: No one could know, explain when courts should resort to that just from looking at the statute, which version approach, we hypothesized a statute with of the offense Shepard was convicted of. alternative elements—more particularly, a Accordingly, we again authorized sentencing burglary statute (otherwise conforming to the courts to scrutinize a restricted set of generic crime) that prohibits “entry of an materials—here, “the terms of a plea automobile as well as a building.” Ibid. One of agreement or transcript of colloquy between those alternatives (a building) corresponds to judge and defendant”—to determine if the an element in generic burglary, whereas the defendant had pleaded guilty to entering a other (an automobile) does not. In a typical building or, alternatively, a car or boat. Ibid. case brought under the statute, the Yet we again underscored the narrow scope of prosecutor charges one of those two that review: It was not to determine “what the alternatives, and the judge instructs the jury defendant and state judge must have accordingly. So if the case involves entry into understood as the factual basis of the prior a building, the jury is “actually required to plea,” but only to assess whether the plea was find all the elements of generic burglary,” as to the version of the crime in the the categorical approach demands. Ibid. But Massachusetts statute (burglary of a building) the statute alone does not disclose whether corresponding to the generic offense. Id., at that has occurred. Because the statute is 25–26, 125 S.Ct. 1254 (plurality opinion). “divisible”— i.e., comprises multiple, alternative versions of the crime—a later Two more recent decisions have further sentencing court cannot tell, without emphasized the elements-based rationale— reviewing something more, if the defendant's applicable only to divisible statutes—for conviction was for the generic (building) or examining documents like an indictment or non-generic (automobile) form of burglary. plea agreement. In Nijhawan v. Holder, 557 Hence Taylor permitted sentencing courts, as U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 a tool for implementing the categorical (2009), we discussed another Massachusetts approach, to examine a limited class of statute, this one prohibiting “ ‘Breaking and documents to determine which of a statute's Entering at Night’ ” in any of four alternative alternative elements formed the basis of the places: a “building, ship, vessel, or vehicle.” defendant's prior conviction. Id., at 35, 129 S.Ct. 2294. We recognized that when a statute so “refer[s] to several different In Shepard v. United States, 544 U.S. 13, crimes,” not all of which qualify as an ACCA 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), the predicate, a court must determine which hypothetical we posited in Taylor became crime formed the basis of the defendant's real: We confronted a Massachusetts burglary conviction. Ibid. That is why, we explained, statute covering entries into “boats and cars” Taylor and Shepard developed the modified as well as buildings. 544 U.S., at 17, 125 S.Ct. categorical 1254. The defendant there pleaded guilty to violating the statute, and we first confirmed [133 S.Ct. 2285] that Taylor 's categorical approach applies not just to jury verdicts, but also to plea approach. By reviewing the extra-statutory agreements. That meant, we held, that a materials approved in those cases, courts conviction based on a guilty plea can qualify could discover “which statutory phrase,” as an ACCA predicate only if the defendant contained within a statute listing “several “necessarily admitted [the] elements of the different” crimes, “covered a prior generic offense.” Id., at 26, 125 S.Ct. 1254. But conviction.” 557 U.S., at 41, 129 S.Ct. 2294. Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

And a year later, we repeated that United States 38; Barry, 94 Cal., at 483–484, understanding of when and why courts can 29 P., at 1026–1027. In Taylor 's words, then, resort to those documents: “[T]he ‘modified § 459 “define[s] burglary more broadly” than categorical approach’ that we have approved the generic offense. 495 U.S., at 599, 110 S.Ct. permits a court to determine which statutory 2143. And because that is true—because phrase was the basis for the conviction.” California, Johnson v. United States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (citation [133 S.Ct. 2286] omitted). to get a conviction, need not prove that Applied in that way—which is the only Descamps broke and entered—a § 459 way we have ever allowed—the modified violation cannot serve as an ACCA predicate. approach merely helps implement the Whether Descamps did break and enter categorical approach when a defendant was makes no difference. And likewise, whether convicted of violating a divisible statute. The he ever admitted to breaking and entering is modified approach thus acts not as an irrelevant. Our decisions authorize review of exception, but instead as a tool. It retains the the plea colloquy or other approved extra- categorical approach's central feature: a focus statutory documents only when a statute on the elements, rather than the facts, of a defines burglary not (as here) overbroadly, crime. And it preserves the categorical but instead alternatively, with one statutory approach's basic method: comparing those phrase corresponding to the generic crime elements with the generic offense's. All the and another not. In that circumstance, a court modified approach adds is a mechanism for may look to the additional documents to making that comparison when a statute lists determine which of the statutory offenses multiple, alternative elements, and so (generic or non-generic) formed the basis of effectively creates “several different ... the defendant's conviction. But here no crimes.” Nijhawan, 557 U.S., at 41, 129 S.Ct. uncertainty of that kind exists, and so the 2294. If at least one, but not all of those categorical approach needs no help from its crimes matches the generic version, a court modified partner. We know Descamps' crime needs a way to find out which the defendant of conviction, and it does not correspond to was convicted of. That is the job, as we have the relevant generic offense. Under our prior always understood it, of the modified decisions, the inquiry is over. approach: to identify, from among several alternatives, the crime of conviction so that III the court can compare it to the generic offense.2 The Court of Appeals took a different view. Dismissing everything we have said on The modified approach thus has no role the subject as “lack[ing] conclusive weight,” to play in this case. The dispute here does not the Ninth Circuit held in Aguila–Montes that concern any list of alternative elements. the modified categorical approach could turn Rather, it involves a simple discrepancy a conviction under any statute into an ACCA between generic burglary and the crime predicate offense. 655 F.3d, at 931. The established in § 459. The former requires an statute, like § 459, could contain a single, unlawful entry along the lines of breaking and indivisible set of elements covering far more entering. See 3 W. LaFave, Substantive conduct than the generic crime—and still, a Criminal Law § 21.1(a) (2d ed. 2003) sentencing court could “conside[r] to some (hereinafter LaFave). The latter does not, and degree the factual basis for the defendant's indeed covers simple shoplifting, as even the conviction” or, otherwise stated, “the Government acknowledges. See Brief for particular acts the defendant committed.” Id., Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

at 935–936. More specifically, the court could Sixth Amendment concerns that would arise look to reliable materials (the charging from sentencing courts' making findings of document, jury instructions, plea colloquy, fact that properly belong to juries. And third, and so forth) to determine “what facts” can it averts “the practical difficulties and “confident[ly]” be thought to underlie the potential unfairness of a factual approach.” defendant's conviction in light of the Id., at 601, 110 S.Ct. 2143. When assessed in “prosecutorial theory of the case” and the light of those three reasons, the Ninth “facts put forward by the government.” Id., at Circuit's ruling strikes out swinging. 936–937. It makes no difference, in the Ninth Circuit's view, whether “specific words in the Start with the statutory text and history. statute” of conviction “ ‘ actually required’ ” As we have long recognized, ACCA increases the jury (or judge accepting a plea) “to find a the sentence of a defendant who has three particular generic element.” Id., at 936 “previous convictions” for a violent felony— (quoting Taylor, 495 U.S., at 602, 110 S.Ct. not a defendant who has thrice committed 2143; internal quotation marks omitted).3 such a crime. 18 U.S.C. § 924(e)(1); see Taylor, 495 U.S., at 600, 110 S.Ct. 2143. That [133 S.Ct. 2287] language shows, as Taylor explained, that “Congress intended the sentencing court to That approach—which an objecting judge look only to the fact that the defendant had aptly called “modified factual,” 655 F.3d, at been convicted of crimes falling within certain 948 (Berzon, J., concurring in judgment)— categories, and not to the facts underlying the turns an elements-based inquiry into an prior convictions.” Ibid.; see Shepard, 544 evidence-based one. It asks not whether U.S., at 19, 125 S.Ct. 1254. If Congress had “statutory definitions” necessarily require an wanted to increase a sentence based on the adjudicator to find the generic offense, but facts of a prior offense, it presumably would instead whether the prosecutor's case have said so; other statutes, in other contexts, realistically led the adjudicator to make that speak in just that way. See Nijhawan, 557 determination. And it makes examination of U.S., at 36, 129 S.Ct. 2294 (construing an extra-statutory documents not a tool used in a immigration statute as requiring a “ “narrow range of cases” to identify the ‘circumstance-specific,’ not a ‘categorical,’ ” relevant element from a statute with multiple approach). But in ACCA, Taylor found, alternatives, but rather a device employed in Congress made a deliberate decision to treat every case to evaluate the facts that the judge every conviction of a crime in the same or jury found. By this point, it should be clear manner: During the lengthy debate preceding that the Ninth Circuit's new way of identifying the statute's enactment, “no one suggested ACCA predicates has no roots in our that a particular crime might sometimes precedents. But more: Aguila–Montes count towards enhancement and sometimes subverts those decisions, conflicting with each not, depending on the facts of the case.” 495 of the rationales supporting the categorical U.S., at 601, 110 S.Ct. 2143. Congress instead approach and threatening to undo all its meant ACCA to function as an on-off switch, benefits. directing that a prior crime would qualify as a predicate offense in all cases or in none. A The Ninth Circuit's approach runs This Court offered three grounds for headlong into that congressional choice. establishing our elements-centric, “formal Instead of reviewing documents like an categorical approach.” Taylor, 495 U.S., at indictment or plea colloquy only to determine 600, 110 S.Ct. 2143. First, it comports with “which statutory phrase was the basis for the ACCA's text and history. Second, it avoids the conviction,” the Ninth Circuit looks to those Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

materials to discover what the defendant Accordingly, that finding would (at the least) actually did. Johnson, 559 U.S., at 144, 130 raise serious Sixth Amendment concerns if it S.Ct. 1265. This case demonstrates the point. went beyond merely identifying a prior Descamps was not convicted of generic conviction. Those concerns, we recognized in burglary, because (as the Government agrees) Shepard, counsel against allowing a § 459 does not contain that crime's required sentencing court to “make a disputed” unlawful- determination “about what the defendant and state judge must have understood as the [133 S.Ct. 2288] factual basis of the prior plea,” or what the jury in a prior trial must have accepted as the entry element. See Brief for United States 38, theory of the crime. 544 U.S., at 25, 125 S.Ct. 43–44. At most, the colloquy showed that 1254 (plurality opinion); see id., at 28, 125 Descamps committed generic burglary, and S.Ct. 1254 (THOMAS, J., concurring in part so hypothetically could have been convicted and concurring in judgment) (stating that under a law criminalizing that conduct. But such a finding would “giv[e] rise to that is just what we said, in Taylor and constitutional error, not doubt”). Hence our elsewhere, is not enough. See 495 U.S., at insistence on the categorical approach. 600, 110 S.Ct. 2143;Carachuri–Rosendo v. Holder, 560 U.S. ––––, ––––, 130 S.Ct. Yet again, the Ninth Circuit's ruling 2577, 2586, 177 L.Ed.2d 68 (2010) (rejecting flouts our reasoning—here, by extending such a “ ‘hypothetical approach’ ” given a judicial factfinding beyond the recognition of similar statute's directive to “look to the a prior conviction. Our modified categorical conviction itself,” rather than “to what might approach merely assists the sentencing court have or could have been charged”). And the in identifying the defendant's crime of necessary result of the Ninth Circuit's method conviction, as we have held the Sixth is exactly the differential treatment we Amendment permits. But the Ninth Circuit's thought Congress, in enacting ACCA, took reworking authorizes the court to try to care to prevent. In the two years since discern what a trial showed, or a plea Aguila–Montes, the Ninth Circuit has treated proceeding revealed, about the defendant's some, but not other, convictions under § 459 underlying conduct. See Aguila–Montes, 655 as ACCA predicates, based on minor F.3d, at 937. And there's the constitutional variations in the cases' plea documents. rub. The Sixth Amendment contemplates that Compare, e.g., 466 Fed.Appx., at 565 a jury—not a sentencing court—will find such (Descamps' § 459 conviction counts as facts, unanimously and beyond a reasonable generic burglary), with 655 F.3d, at 946 doubt. And the only facts the court can be (Aguila–Montes' does not). sure the jury so found are those constituting elements of the offense—as distinct from Similarly, consider (though Aguila– amplifying but legally extraneous Montes did not) the categorical approach's circumstances. See, e.g., Richardson v. Sixth Amendment underpinnings. We have United States, 526 U.S. 813, 817, 119 S.Ct. held that “[o]ther than the fact of a prior 1707, 143 L.Ed.2d 985 (1999). Similarly, as conviction, any fact that increases the penalty Shepard indicated, when a defendant pleads for a crime beyond the prescribed statutory guilty to a crime, he waives his right to a jury maximum must be submitted to a jury, and determination of only that offense's elements; proved beyond a reasonable doubt.” Apprendi whatever he says, or fails to say, about v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. superfluous facts cannot license a later 2348, 147 L.Ed.2d 435 (2000). Under ACCA, sentencing court to impose extra punishment. the court's finding of a predicate offense See 544 U.S., at 24–26, 125 S.Ct. 1254 indisputably increases the maximum penalty. (plurality opinion). So when the District Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

Court here enhanced Descamps' sentence, of their negotiated plea deals. Assume (as based on happens every day) that a defendant surrenders his right to trial in exchange for [133 S.Ct. 2289] the government's agreement that he plead guilty to a less serious crime, whose elements his supposed acquiescence to a prosecutorial do not match an ACCA offense. Under the statement (that he “broke and entered”) Ninth Circuit's view, a later sentencing court irrelevant to the crime charged, the court did could still treat the defendant as though he just what we have said it cannot: rely on its had pleaded to an ACCA predicate, based on own finding about a non-elemental fact to legally extraneous statements found in the old increase a defendant's maximum sentence. record. Taylor recognized the problem: “[I]f a guilty plea to a lesser, nonburglary offense Finally, the Ninth Circuit's decision was the result of a plea bargain,” the Court creates the same “daunting” difficulties and stated, “it would seem unfair to impose a inequities that first encouraged us to adopt sentence enhancement as if the defendant the categorical approach. Taylor, 495 U.S., at had pleaded guilty” to generic burglary. 495 601–602, 110 S.Ct. 2143. In case after case, U.S., at 601–602, 110 S.Ct. 2143. That way of sentencing courts following Aguila–Montes proceeding, on top of everything else, would would have to expend resources examining allow a later sentencing court to rewrite the (often aged) documents for evidence that a parties' bargain. defendant admitted in a plea colloquy, or a prosecutor showed at trial, facts that, B although unnecessary to the crime of conviction, satisfy an element of the relevant The Ninth Circuit defended its generic offense. The meaning of those (excessively) modified approach by denying documents will often be uncertain. And the any real distinction between divisible and statements of fact in them may be downright indivisible statutes extending further than the wrong. A defendant, after all, often has little generic offense. “The only conceptual incentive to contest facts that are not difference,” the court reasoned, “is that [a elements of the charged offense—and may divisible statute] creates an explicitly finite have good reason not to. At trial, extraneous list of possible means of commission, while facts and arguments may confuse the jury. [an indivisible one] creates an implied list of (Indeed, the court may prohibit them for that every means of commission that otherwise reason.) And during plea hearings, the fits the definition of a given crime.” Aguila– defendant may not wish to irk the prosecutor Montes, 655 F.3d, at 927. For example, an or court by squabbling about superfluous indivisible statute “requir[ing] use of a factual allegations. In this case, for example, ‘weapon’ is not meaningfully different”—or so Descamps may have let the prosecutor's says the Ninth Circuit—“from a statute that statement go by because it was irrelevant to simply lists every kind of weapon in existence the proceedings. He likely was not thinking ... (‘gun, axe, sword, baton, slingshot, knife, about the possibility that his silence could machete, bat,’ and so on).” Ibid. In a similar come back to haunt him in an ACCA way, every indivisible statute can be sentencing 30 years in the future. (Actually, imaginatively reconstructed as a divisible one. he could not have been thinking that thought: And if that is true, the Ninth Circuit asks, why ACCA was not even on the books at the time limit the modified categorical of Descamps' burglary conviction.) [133 S.Ct. 2290] Still worse, the Aguila–Montes approach will deprive some defendants of the benefits approach only to explicitly divisible statutes? Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

The simple answer is: Because only agree on whether the defendant used a gun or divisible statutes enable a sentencing court to a knife or a tire iron (or any other particular conclude that a jury (or judge at a plea weapon that might appear in an imagined hearing) has convicted the defendant of every divisible statute), because the actual statute element of the generic crime. A prosecutor requires the jury to find only a “weapon.” And charging a violation of a divisible statute must even if in many cases, the jury could have generally select the relevant element from its readily reached consensus on the weapon list of alternatives. See, e.g.,The Confiscation used, a later sentencing court cannot supply Cases, 20 Wall. 92, 104, 22 L.Ed. 320 (1874) that missing judgment. Whatever the (“[A]n indictment or a criminal information underlying facts or the evidence presented, which charges the person accused, in the the defendant still would not have been disjunctive, with being guilty of one or of convicted, in the deliberate and considered another of several offences, would be way the Constitution guarantees, of an destitute of the necessary certainty, and offense with the same (or narrower) elements would be wholly insufficient”).4 And the jury, as the supposed generic crime (assault with a as instructions in the case will make clear, gun). must then find that element, unanimously and beyond a reasonable doubt. So assume, Indeed, accepting the Ninth Circuit's along the lines of the Ninth Circuit's example, contrary reasoning would altogether collapse that a statute criminalizes assault with any of the distinction between a categorical and a eight specified weapons; and suppose further, fact-specific approach. After all, the Ninth as the Ninth Circuit did, that only assault with Circuit's “weapons” example is just the tip of a gun counts as an ACCA offense. A later the iceberg: Courts can go much further in sentencing court need only check the reconceiving indivisible statutes as impliedly charging documents and instructions (“Do divisible ones. In fact, every element of every they refer to a gun or something else?”) to statute can be imaginatively transformed as determine whether in convicting a defendant the Ninth under that divisible statute, the jury necessarily found that he committed the [133 S.Ct. 2291] ACCA-qualifying crime. Circuit suggests—so that every crime is seen None of that is true of an overbroad, as containing an infinite number of sub- indivisible statute. A sentencing court, to be crimes corresponding to “all the possible ways sure, can hypothetically reconceive such a an individual can commit” it. Aguila–Montes, statute in divisible terms. So, as Aguila– 655 F.3d, at 927. (Think: Professor Plum, in Montes reveals, a court blessed with sufficient the ballroom, with the candlestick?; Colonel time and imagination could devise a laundry Mustard, in the conservatory, with the rope, list of potential “weapons”—not just the eight on a snowy day, to cover up his affair with the Ninth Circuit mentioned, but also (for Mrs. Peacock?) If a sentencing court, as the starters) grenades, pipe bombs, spears, tire Ninth Circuit holds, can compare each of irons, BB guns, nunchucks, and crossbows. those “implied ... means of commission” to But the thing about hypothetical lists is that the generic ACCA offense, ibid. (emphasis they are, well, hypothetical. As long as the deleted), then the categorical approach is at statute itself requires only an indeterminate an end. At that point, the court is merely “weapon,” that is all the indictment must (or asking whether a particular set of facts is likely to) allege and all the jury instructions leading to a conviction conforms to a generic must (or are likely to) mention. And most ACCA offense. And that is what we have important, that is all the jury must find to expressly and repeatedly forbidden. Courts convict the defendant. The jurors need not all may modify the categorical approach to Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

accommodate alternative “statutory Although elaborately developed in the definitions.” Ibid.; cf. MCI Government's brief, this argument's first two Telecommunications Corp. v. American steps turn out to be sideshows. We may Telephone & Telegraph Co., 512 U.S. 218, reserve the question whether, in determining 225, 114 S.Ct. 2223, 129 L.Ed.2d 182 (1994) (“ a crime's elements, a sentencing court should ‘ [T]o modify’ means to change moderately or take account not only of the relevant statute's in minor fashion”). They may not, by text, but of judicial rulings interpreting it. pretending that every fact pattern is an And we may assume, as the Government “implied” statutory definition, Aguila– insists, that California caselaw treats § 459 as Montes, 655 F.3d, at 927, convert that including an element of entry “invading a approach into its opposite. possessory right”—although, truth be told, we find the state decisions on that score IV contradictory and confusing.5 Even on those assumptions, The Government tries to distance itself from the Ninth Circuit by offering a [133 S.Ct. 2292] purportedly narrower theory—that although an indivisible statute that is “truly missing” § 459's elements do not come into line with an element of the generic offense cannot give generic burglary's. As the Government rise to an ACCA conviction, California's concedes, almost every entry onto another's burglary law can do so because it merely property with intent to steal—including, for “contains a broader version of the [generic] example, a shoplifter's walking into an open element of unlawfulness of entry.” Brief for store—“invades a possessory right” under § United States 11–12. The Government's 459. See Brief for United States 38; Gauze, 15 argument proceeds in three steps. It begins Cal.3d, at 714, 125 Cal.Rptr. 773, 542 P.2d, at from the premise that sentencing courts 1367. By contrast, generic burglary's applying ACCA should consider not only the unlawful-entry element excludes any case in statute defining a prior crime but also any which a person enters premises open to the judicial interpretations of it. Next, the public, no matter his intent; the generic crime Government points to a California decision requires breaking and entering or similar holding (not surprisingly) that a defendant unlawful activity. See Brief for United States cannot “burglariz[e] his own home”; the 38; LaFave § 21.1(a). So everything rests on case's reasoning, the Government notes, is the Government's third point: that this that § 459 (though not saying so explicitly) mismatch does not preclude applying the requires “an entry which invades a possessory modified categorical approach, because it right.” People v. Gauze, 15 Cal.3d 709, 713– results not from a missing element but 716, 125 Cal.Rptr. 773, 542 P.2d 1365, 1367– instead from an element's overbreadth. 1368 (1975). Given that precedent, the Government contends, § 459 includes a kind But for starters, we see no principled way of “unlawful entry” element, although it is to make that distinction. Most overbroad broader than the generic crime's analogous statutes can also be characterized as missing requirement. Finally, the Government asserts an element; and most statutes missing an that sentencing courts may use the modified element can also be labeled overbroad. Here approach “to determine whether a particular is the only conclusion in Aguila–Montes we defendant's conviction under” such an agree with: “[I]t is difficult, if not impossible” overbroad statute actually “was for [the] to determine which is which. 655 F.3d, at 925. generic” crime. Brief for United States 11. The example that court gave was as follows: A statute of conviction punishes possession of pornography, but a federal law carries a Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

sentence enhancement for possession of child as we have explained, we adopted the pornography. Is the statute of conviction modified approach to help implement overbroad because it includes both adult and child pornography; or is that law instead [133 S.Ct. 2293] missing the element of involvement of minors? The same name game can be played the categorical inquiry, not to undermine it. with § 459. The Government labors mightily to turn what it fears looks like a missing- V element statute into an overbroad statute Descamps may (or may not) have broken through the incorporation of judicial and entered, and so committed generic decisions. But even putting those decisions burglary. But § 459—the crime of which he aside, the Government might have described was convicted—does not require the § 459 as merely having an overbroad element factfinder (whether jury or judge) to make because “entry” includes both the lawful and that determination. Because generic unlawful the unlawful kind. And conversely, Descamps entry is not an element, or an alternative could claim that even as judicially element, of § 459, a conviction under that interpreted, § 459 is entirely missing generic statute is never for generic burglary. And that burglary's element of breaking and entering decides this case in Descamps' favor; the or similar unlawful conduct. All is in the eye District Court should not have enhanced his of the beholder, and prone to endless sentence under ACCA.6 That court and the manipulation. Ninth Circuit erred in invoking the modified In any event, and more fundamentally, categorical approach to look behind we see no reason why the Government's Descamps' conviction in search of record distinction should matter. Whether the evidence that he actually committed the statute of conviction has an overbroad or generic offense. The modified approach does missing element, the problem is the same: not authorize a sentencing court to substitute Because of the mismatch in elements, a such a facts-based inquiry for an elements- person convicted under that statute is never based one. A court may use the modified convicted of the generic crime. In this case, approach only to determine which alternative for example, Descamps was not convicted of element in a divisible statute formed the basis generic burglary because § 459, whether of the defendant's conviction. Accordingly, we viewed as missing an element or containing reverse the judgment of the Court of Appeals. an overbroad one, does not require breaking It is so ordered. and entering. So every reason we have given— textual, constitutional, and practical—for Justice KENNEDY, concurring. rejecting the Ninth Circuit's proposed approach applies to the Government's as well. As the Court explains, this case concerns See supra, at 2287 – 2290. At bottom, the earlier convictions under state statutes Government wants the same thing as the classified by cases in the Courts of Appeals, Ninth Circuit (if nominally in a few fewer and now in today's opinion for the Court, as cases): It too wishes a sentencing court to “indivisible.” See, e.g.,United States v. look beyond the elements to the evidence or, Aguila–Montes de Oca, 655 F.3d 915 (C.A.9 otherwise said, to explore whether a person 2011) (en banc) ( per curiam ); United States convicted of one crime could also have been v. Beardsley, 691 F.3d 252 (C.A.2 2012). This convicted of another, more serious offense. category is used to describe a class of criminal But that circumstance-specific review is just statutes that are drafted with a single set of what the categorical approach precludes. And elements that are broader than those of the Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

generic definition of the corresponding crime post, at 2301 – 2302 (ALITO, J., dissenting). enumerated in the Armed Career Criminal If Congress wishes to pursue its policy in a Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). proper and efficient way without mandating uniformity among the States with respect to Just one of the substantial concerns that their criminal statutes for scores of serious the Court is correct to consider is that, in the offenses, and without requiring the regular course of the criminal process, amendment of any number of federal convictions may be entered, often by guilty criminal statutes as well, Congress should act pleas, when either the attorney or the client, at once. It may then determine whether or both, have given no consideration to ACCA's design and structure should be possible later consequences under ACCA. See modified to meet the concerns expressed both ante, at 2289 – 2290. As a result, certain facts by the Court and the dissenting opinion. in the documents approved for judicial examination in Shepard v. United States, 544 With these observations, I join the U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 opinion of the Court. (2005), may go uncontested because they do not alter the sentencing consequences of the Justice THOMAS, concurring in the crime, even though their effect is to require a judgment. later enhancement under ACCA. This significant risk of failing to consider the full Petitioner Matthew Descamps was consequences of the plea and conviction is convicted of being a felon in possession of a troubling. firearm, 18 U.S.C. § 922(g), which subjected him to a maximum sentence of 10 years' Balanced against this, as Justice ALITO imprisonment. The District Court, however, indicates, is that the dichotomy between applied an Armed Career Criminal Act divisible and indivisible state criminal (ACCA) enhancement with a mandatory statutes is not all that clear. See post, at 2301 minimum of 15 years based in part on – 2302 (dissenting opinion). The effect of Descamps' earlier California conviction for today's decision, moreover, is that an burglary. See § 924(e). The California law unspecified number, but likely a large says that any “person who enters” any of a number, of state criminal statutes that are number of structures “with intent to commit indivisible but that often do reach serious grand or petit larceny or any felony is guilty of crimes otherwise subject to ACCA's burglary.” California Penal Code Ann. § 459 provisions, (West 2010). That law does not, on its face, require the jury to determine whether the [133 S.Ct. 2294] entry itself was unlawful, a required element of the so-called “generic” offense of burglary now must be amended by state legislatures. that qualifies as an ACCA predicate. See Otherwise, they will not meet federal Taylor v. United States, 495 U.S. 575, 599, requirements even though they would have 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The come within ACCA's terms had the state majority holds that a court may not review statute been drafted in a different way. This is the underlying facts of Descamps' state crime an intrusive demand on the States. to determine whether he entered the building unlawfully and, thus, that his burglary On due consideration, the concerns well conviction may not be used as a predicate expressed by the Court persuade me that it offense under ACCA. While I agree with the reaches the correct result. The disruption to Court's conclusion, I disagree with its the federal policy underlying ACCA, reasoning. nevertheless, is troubling and substantial. See Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

I have previously explained that ACCA increases the statutory maximum in violation runs afoul of Apprendi v. New Jersey, 530 of the Sixth Amendment. However, because U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 today's opinion at least limits the situations in (2000), because it allows the judge to “mak[e] which courts make factual determinations a finding that raises [a defendant's] sentence about prior convictions, I concur in the beyond the sentence that could have lawfully judgment. been imposed by reference to facts found by the jury or admitted by the defendant.” James Justice ALITO, dissenting. v. United States, 550 U.S. 192, 231, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (dissenting The Court holds, on highly technical opinion) (internal quotation marks omitted). grounds, that no California burglary Under the logic of Apprendi, a court may not conviction qualifies as a burglary conviction find facts about a prior conviction when such under the Armed Career Criminal Act findings increase the statutory maximum. (ACCA), 18 U.S.C. § 924(c). This is so, This is so whether a court is determining according to the Court, because (1) burglary whether a prior conviction was entered, see under California law is broader than so-called 530 U.S., at 520–521, 120 S.Ct. 2348 “generic burglary”—unlawfully entering or (THOMAS, J., concurring), or attempting to remaining in a building with the intent to discern what facts were necessary to a prior commit a crime; (2) the California burglary conviction. See James, supra, at 231–232, 127 statute is not “divisible”; and (3) our S.Ct. 1586 (THOMAS, J., dissenting). In “modified categorical approach” cannot be either case, the court is inappropriately used in a case involving an indivisible statute. finding a fact that must be submitted to the Even when it is apparent that a California jury because it “increases the penalty for a burglary conviction was based on what crime beyond the prescribed statutory everyone imagines when the term “burglary” maximum.” Apprendi, supra, at 490, 120 is mentioned— e.g., breaking into a home to S.Ct. 2348 steal valuables—that conviction, the Court holds, must be ignored. In light of the foregoing, it does not matter whether a statute is “divisible” or I would give ACCA a more practical “indivisible,” see ante, at 2278 – 2280, and reading. When it is clear that a defendant courts should not have to struggle with the necessarily admitted or the jury necessarily found that the defendant committed the [133 S.Ct. 2295] elements of generic burglary, the conviction should qualify. Petitioner's burglary contours of the so-called “modified conviction meets that requirement, and I categorical” approach. Ibid. The only reason would therefore affirm the decision of the Descamps' ACCA enhancement is before us is Court of Appeals. “because this Court has not yet reconsidered Almendarez–Torres v. United States, 523 I U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998), which draws an exception to the Before petitioner was charged in the case Apprendi line of cases for judicial factfinding now before us, he had already compiled a that concerns a defendant's prior criminal record that included convictions in convictions.” Shepard v. United States, 544 Washington State for assault and threatening U.S. 13, 27, 125 S.Ct. 1254, 161 L.Ed.2d 205 to kill a judge, and convictions in California (2005) (THOMAS, J., concurring in part and for robbery and burglary. See App. 11a–12a; concurring in judgment). Regardless of the 466 Fed.Appx. 563, 565 (C.A.9 2012). After framework adopted, judicial factfinding his release from custody for these earlier Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

crimes, petitioner fired a gun in the direction Petitioner argues that his 1978 conviction of a man who supposedly owed him money for burglary under California Penal Code § for methamphetamine, and as a result, he was 459 does not qualify as a burglary conviction charged in federal court with possession of a for ACCA purposes because of the particular firearm by a convicted felon, in violation of § way in which this provision is worded. Section 922(g)(1). A jury found him guilty, and the 459 provides that a “person who enters” District Court imposed an enhanced sentence certain locations “with intent to commit under ACCA because he had the requisite grand or petit larceny or any felony is guilty of number of previous convictions for “a violent burglary.” Cal.Penal Code Ann. § 459 (West felony or a serious drug offense.” § 924(e). 2010). This provision is broader than generic ACCA defines a “violent felony” to include a burglary in two respects. “burglary” that is “punishable by imprisonment for a term exceeding one year,” The first, which does not preclude § 924(e)(2)(B), and both the District Court application of the modified categorical and the Court of Appeals found that approach, concerns the place burglarized. petitioner's California burglary conviction fit While generic burglary applies only to this definition. offenses involving the entry of a building, the California provision also reaches offenses While the concept of a conviction for involving the entry of some other locations, burglary might seem simple, things have not see ibid. Under our cases, however, a federal worked out that way under our case law. In court considering whether to apply ACCA Taylor v. United States, 495 U.S. 575, 599, may determine, based on an examination of 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), we certain relevant documents, whether the held that “burglary” under ACCA means what conviction was actually based on the entry of we called “generic burglary,” that is, the a building and, if it was, may impose an “unlawful or unprivileged entry into, or increased sentence. See Johnson v. United remaining in, a building or structure, with States, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 intent to commit a crime.” Determining L.Ed.2d 1 (2010); Nijhawan v. Holder, 557 whether a burglary conviction qualifies under U.S. 29, 35, 129 S.Ct. 2294, 174 L.Ed.2d 22 this definition is (2009); Shepard, supra, at 26, 125 S.Ct. 1254.

[133 S.Ct. 2296] The second variation is more consequential. Whereas generic burglary easy if the elements set out in the state statute requires an entry that is unlawful or are the same as or narrower than the unprivileged, the California statute refers elements of generic burglary, see ibid., but without qualification to “[e]very person who what if the state offense is broader? In that enters.” § 459. Petitioner argues, and the event, we have held, a federal court may Court agrees, that this discrepancy renders sometimes apply what we have termed the the modified categorical approach “modified categorical approach,” that is, it inapplicable to his California burglary may examine some items in the state-court conviction. record, including charging documents, jury instructions, and statements made at guilty II plea proceedings, to determine if the defendant was actually found to have The Court holds that “sentencing courts committed the elements of the generic may not apply the modified categorical offense. See Shepard v. United States, 544 approach when the crime of which the U.S. 13, 20, 125 S.Ct. 1254, 161 L.Ed.2d 205 defendant was convicted has a single, (2005); Taylor, supra, at 602, 110 S.Ct. 2143. indivisible set of elements.” Ante, at 2282. Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

Because the Court's holding is based on the Nothing in the text of ACCA mandates distinction between “divisible” and the Court's exclusive focus on the elements of “indivisible” statutes, it is important to an offense. ACCA increases the sentence of a identify precisely what this taxonomy means. defendant who has “three previous convictions ... for a violent felony,” 18 U.S.C. § My understanding is that a statute is 924(e)(1) (emphasis added), and the Court divisible, in the sense used by the Court, only claims that the word “convictions” mandates if the offense in question includes as separate a narrow, elements-based inquiry, see ante, at elements all of the elements of the generic 2287 – 2288. But “[i]n ordinary speech, when offense. By an element, I understand the it is said that a person was convicted of or for Court to mean something on which a jury doing something, the ‘something’ may include must agree by the vote required to convict facts that go beyond the bare elements of the under the law of the applicable jurisdiction. relevant criminal offense.” Moncrieffe v. See ante, at 2288 (citing Richardson v. Holder, 569 U.S. ––––, ––––, 133 S.Ct. 1678, United States, 526 U.S. 813, 817, 119 S.Ct. 1701, 185 L.Ed.2d 727 (2013) (ALITO, J., 1707, 143 L.Ed.2d 985 (1999)). And although dissenting). the Court reserves decision on the question whether a sentencing court may take Nor is an exclusively elements-based authoritative judicial decisions into account inquiry mandated by ACCA's definition of a in identifying the elements of a statute, see “violent felony” as “any crime ... that ... is ante, at 2291 – 2292 I will assume that a burglary,” § 924(e)(2)(B)(ii). In drafting that sentencing court may do so. While the provision, Congress did not say “any crime elements of a criminal offense are generally that has the elements of burglary.” Indeed, set out in the statutory text, courts sometimes the fact that Congress referred to “elements” find that unmentioned elements are implicit. elsewhere in the same subparagraph, see § See, e.g., Neder v. United States, 527 U.S. 1, 924(e)(2)(B)(i) (defining “violent felony” to 20, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) mean any crime that “has as an element the (holding that federal mail fraud, wire use, attempted use, or threatened use of physical force against the person of another” [133 S.Ct. 2297] (emphasis added)), but omitted any reference to elements from § 924(e)(2)(B)(ii) suggests, fraud, and bank fraud statutes require proof if anything, that it did not intend to focus of materiality even though that element is not exclusively on elements. Cf. Caraco mentioned in the statutory text). I cannot Pharmaceutical Laboratories, Ltd. v. Novo think of any reason why an authoritative Nordisk A/S, 566 U.S. ––––, ––––, 132 S.Ct. decision of this sort should be ignored, and 1670, 1682–83, 182 L.Ed.2d 678 (2012). the Court has certainly not provided any. I therefore proceed on the assumption that a B statute is divisible if the offense, as properly construed, has the requisite elements. The Court says that our precedents require an elements-based approach and The Court's holding that the modified accuses the Court of Appeals of “flout[ing] our categorical approach may be used only when reasoning” in Taylor,Shepard,Nijhawan, and a statute is divisible in this sense is not Johnson, see ante, at 2283 – 2285, 2288, but required by ACCA or by our prior cases and that charge is unfounded. In at least three of will cause serious practical problems. those cases, the Court thought that the modified categorical approach could be used A in relation to statutes that may not have been divisible. Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

Shepard concerned prior convictions A case that we decided earlier this Term under two Massachusetts burglary statutes illustrates why “building” and “vessel” may that applied not only to the entry of a have been means and not separate elements. “building” (as is the case with generic In Lozman v. Riviera Beach, 568 U.S. ––––, burglary) but also to the entry of a “ship, 133 S.Ct. 735, 184 L.Ed.2d 604 (2013), we vessel, or vehicle.” Mass. Gen. Laws Ann., ch. were required to determine whether a 266, § 16 (West 2000). See also § 18; 544 “floating home” (a buoyant but not very sea- U.S., at 17, 125 S.Ct. 1254. And the Shepard worthy dwelling) was a “vessel.” Seven of us Court did not think that this feature of the thought it was not; two of us thought it might Massachusetts statutes precluded the be. Compare id., at ––––, 133 S.Ct., at 739, application of the modified categorical with id., at ––––, 133 S.Ct., at 744–45. approach. See id., at 25–26, 125 S.Ct. (SOTOMAYOR, J., dissenting). Suppose that 1254;ante, at 2283 – 2284. See also a defendant in Massachusetts was charged Nijhawan, 557 U.S., at 35, 129 S.Ct. 2294 with breaking into a structure like the (discussing Shepard ). Lozman floating home. In order to convict, would it be necessary for the jury to agree In today's decision, the Court assumes whether this structure was a “building” or a that “building” and the other locations “vessel”? If some jurors insisted it was a enumerated in the Massachusetts statutes, building and others were convinced it was a such as “vessel,” were alternative elements, vessel, would the jury be hung? The Court's but that is questionable. It is quite likely that answer is “yes.” According to the Court, if a the entry of a building and the entry of a defendant had been charged with burglarizing vessel were simply alternative means of the Lozman floating home and this Court had satisfying an element. See been sitting as the jury, the defendant would have escaped conviction for burglary, no [133 S.Ct. 2298] matter how strong the evidence, because the “jury” could not agree on whether he Commonwealth v. Cabrera, 449 Mass. 825, burglarized a building or a vessel. 827, 874 N.E.2d 654, 657 (2007) (“The elements of breaking and entering in the I have not found a Massachusetts nighttime with intent to commit a felony are decision squarely on point, but there is surely (1) breaking and (2) entering a building, ship, an argument that the Massachusetts vessel or vehicle belonging to another (3) at Legislature did not want to demand juror night, (4) with the intent to commit a agreement on this question. In other words, felony”). “[L]egislatures frequently enumerate there is a strong argument that entry of a alternative means of committing a crime “building” and entry of a “vessel” are merely without intending to define separate elements alternative means, not alternative elements. or separate crimes.” Schad v. Arizona, 501 And if that is so, the reasoning in Shepard U.S. 624, 636, 111 S.Ct. 2491, 115 L.Ed.2d 555 undermines the Court's argument that the (1991) (plurality). The feature that modified categorical approach focuses solely distinguishes elements and means is the need on elements and not on conduct. for juror agreement, see Richardson, supra, at 817, 119 S.Ct. 1707, and therefore in Johnson, like Shepard, involved a statute determining whether the entry of a building that may have set out alternative means, and the entry of a vessel are elements or rather than alternative elements. Under the means, the critical question is whether a jury Florida statute involved in that case, a battery would have to agree on the nature of the place occurs when a person either “1. [a]ctually and that a defendant entered. intentionally touches or strikes another person against the will of the other; or 2. Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

[i]ntentionally causes bodily harm to another “circumstance-specific” approach. See 557 person.” Fla. Stat. § 784.03(1)(a) (2010). It is U.S., at 36, 38, 129 S.Ct. 2294. If anything, a distinct possibility (one not foreclosed by then, Nijhawan undermines the majority's any Florida decision of which I am aware) position that rigid adherence to elements is that a conviction under this provision does always required. not require juror agreement as to whether a defendant firmly touched or lightly struck the C victim. Nevertheless, in Johnson, we had no difficulty concluding that the modified The Court fears that application of the categorical approach could be applied.1 See modified categorical approach to statutes 559 U.S., at 137, 130 S.Ct. 1265.2 such as § 459 would be unfair to defendants, who “often ha[ve] little incentive to contest [133 S.Ct. 2299] facts that are not elements of the charged offense” and “may not wish to irk the Far from mandating the Court's prosecutor or court by squabbling about approach, these decisions support a practical superfluous factual allegations.” Ante, at understanding of the modified categorical 2289. This argument attributes to criminal approach. Thus, in Shepard, we observed that defendants and their attorneys a degree of the factual circumstances of a defendant's timidity that may not be realistic. But in any prior conviction may be relevant to event, even if a defendant does not think it determining whether it qualifies as a violent worthwhile to “squabbl[e]” about felony under ACCA. See 544 U.S., at 20–21, insignificant factual allegations, a defendant 125 S.Ct. 1254 (“With such material in a clearly has an incentive to dispute allegations pleaded case, a later court could generally tell that may have a bearing on his sentence. And whether the plea had ‘necessarily’ rested on that will the fact identifying the burglary as generic, just as the details of instructions could [133 S.Ct. 2300] support that conclusion in the jury case, or the details of a generically limited charging often be the case when alternative elements document would do in any sort of case” or means suggest different degrees of (emphasis added; citation omitted)); id., at culpability. Cf. Cal.Penal Code Ann. § 460 24, 125 S.Ct. 1254 (plurality opinion) (providing that burglary of certain inhabited (“Developments in the law since Taylor ... locations enumerated in § 459 is punishable provide a further reason to adhere to the in the first degree, and that burglary of all demanding requirement that ... a prior other locations is punishable in the second conviction ‘necessarily’ involved (and a prior degree). plea necessarily admitted) facts equating to generic burglary” (emphasis added)); id., at D 25, 125 S.Ct. 1254 (noting that, in the context The Court's approach, I must concede, of a nongeneric burglary statute, unless the does have one benefit: It provides an extra charging documents “narro[w] the charge to measure of assurance that a burglary generic limits, the only certainty of a generic conviction will not be counted as an ACCA finding lies in jury instructions, or bench-trial predicate unless the defendant, if he went to findings and rulings, or (in a pleaded case) in trial, was actually found by a jury to have the defendant's own admissions or accepted committed the elements of the generic findings of fact confirming the factual basis offense. But this extra bit of assurance will for a valid plea” (emphasis added)). And in generally be quite modest at best. Nijhawan, we departed from the categorical approach altogether and instead applied a Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

To see why this is so, compare what 835–840 (3d ed. 2007 and Supp. 2011– would happen under an indivisible burglary 2012), and the proffer of a factual basis will statute that simply requires entry invading a generally focus exclusively on one of the possessory right, and a divisible statute that alternative elements. has the following two alternative elements: (1) entry by trespass and (2) entry by invitation The Court nevertheless suggests that the but with an undisclosed criminal intent. extra modicum of assurance provided in cases Under the former statute, the jury would be involving divisible statutes is needed to required to agree only that the defendant prevent violations of the Sixth Amendment invaded a possessory right when entering the jury trial right, ante, at 2287 – 2289, but I place in question, and therefore it would be disagree. So long as a judge applying ACCA is possible for the jury to convict even if some determining, not what the defendant did jurors thought that the defendant entered by when the burglary in question was trespassing while others thought that he committed, but what the jury in that case entered by invitation but with an undisclosed necessarily found or what the defendant, in criminal intent. Under the latter statute, by pleading guilty, necessarily admitted, the jury contrast, the jury would have to agree either trial right is not infringed. See Almendarez– that he trespassed or that he entered by Torres v. United States, 523 U.S. 224, 118 invitation but with an undisclosed criminal S.Ct. 1219, 140 L.Ed.2d 350 (1998). When the intent. modified categorical approach is used to decide whether “a jury was actually required This requirement of unanimity would be to find all the elements of [a] generic of some practical value only if the evidence in [offense],” the defendant has already enjoyed a case pointed to both possibilities, and in a his Sixth Amendment right to a jury great many cases that will not be so. In cases determination prosecuted under the California burglary statute, I suspect, the evidence generally [133 S.Ct. 2301] points either to a trespassory entry, typically involving breaking into a building or other of those elements. Taylor, 495 U.S., at 602, covered place, or to an entry by invitation but 110 S.Ct. 2143. with an undisclosed criminal intent (in many cases, shoplifting). Cases in which the III evidence suggests that the defendant might While producing very modest benefits at have done either are probably not common. most, the Court's holding will create several And in cases where there is evidence serious problems. supporting both theories, the presence of a divisible statute containing alternative A elements will not solve the problem: A guilty verdict will not reveal the alternative on Determining whether a statute is which the jury agreed unless the jury was divisible will often be harder than the Court asked to return a special verdict, something acknowledges. What I have said about the that is not generally favored in criminal cases. statutes involved in Shepard and Johnson See 6 LaFave § 24.10(a), at 543–544. illustrates this point. The Court assumes that those statutes were divisible, but as I have In cases that end with a guilty plea—and explained, it is possible that they were not. most do—the benefit of divisibility is even See supra, at 2297 – 2298. less. A judge who accepts a guilty plea is typically required to confirm that there is a factual basis for the plea, see 5 id., § 21.4(f), at Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

To determine whether a statute contains statement that was falsely reported”); alternative elements, as opposed to merely Edwards v. State, 379 So.2d 336, 338 alternative means of satisfying an element, a (Ala.Crim.App.1979) (it is insufficient for an court called upon to apply ACCA will be indictment for robbery to allege the amount required to look beyond the text of the of money taken; it “must aver the statute, which may be deceptive. Take, for denomination of the money taken or that the example, Michigan Compiled Laws Annotated particular denomination is unknown to the § 750.82(1) (West 2004), which criminalizes grand jury”). Thus, the mere fact that state assault with “a gun, revolver, pistol, knife, law requires a particular fact to be alleged in a iron bar, club, brass knuckles, or other charging document does not mean that this dangerous weapon.” The Court seems to fact must be found by a jury or admitted by assume that a statute like this enumerates the defendant. alternative elements, ante, at 2290 – 2291, but the Michigan courts have held otherwise. The only way to be sure whether Under Michigan law, the elements of § particular items are alternative elements or 750.82(1) are “(1) an assault, (2) with a simply alternative means of satisfying an dangerous weapon, and (3) with the intent to element injure or place the victim in reasonable apprehension of an immediate battery.” [133 S.Ct. 2302] People v. Avant, 235 Mich.App. 499, 505, 597 N.W.2d 864, 869 (1999). Although the statute may be to find cases concerning the lists numerous types of weapons, the correctness of jury instructions that treat the particular type of weapon is not itself an items one way or the other. And such cases element that the prosecution must prove may not arise frequently. One of the Court's beyond a reasonable doubt. Instead, the list of reasons for adopting the modified categorical weapons in the statute merely enumerates approach was to simplify the work of ACCA alternative means of committing the crime.3 courts, see Shepard, 544 U.S., at 20, 125 S.Ct. 1254;Taylor, 495 U.S., at 601, 110 S.Ct. 2143, Even if a federal court applying ACCA but the Court's holding today will not serve discovers a state-court decision holding that a that end. particular fact must be alleged in a charging document, its research is not at an end. B Charging documents must generally include The Court's holding will also frustrate factual allegations that go beyond the bare fundamental ACCA objectives. We have elements of the crime—specifically, at least repeatedly recognized that Congress enacted enough detail to permit the defendant to ACCA to ensure (1) that violent, dangerous mount a defense. See 5 LaFave § 19.3(b), at recidivists would be subject to enhanced 276. And some jurisdictions require fairly penalties and (2) that those enhanced specific factual allegations. See, e.g., N.Y. penalties would be applied uniformly, Crim. Proc. Law Ann. § 200.50 (West 2007) regardless of state-law variations. See, e.g., (enumerating detailed requirements for id., at 587–589, 110 S.Ct. 2143. See also id., at indictment); People v. Swanson, 308 582, 110 S.Ct. 2143 (“ ‘[I]n terms of Ill.App.3d 708, 712, 242 Ill.Dec. 351, 721 fundamental fairness, the Act should ensure, N.E.2d 630, 633 (1999) (vacating conviction to the extent that it is consistent with the for disorderly conduct for submitting a false prerogatives of the States in defining their police report because information “d [id] not own offenses, that the same type of conduct is describe with particularity the time, date, or punishable on the Federal level in all cases' ” location of the alleged domestic battery and (quoting S.Rep. No. 98–190, p. 20 (1983))); the acts comprising the battery ... [or] the Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

495 U.S., at 591, 110 S.Ct. 2143 (rejecting California law to ensure that the plea had a disparate results across states based on label factual basis, see given by State to a particular crime). [133 S.Ct. 2303] The Court's holding will hamper the achievement of these objectives by artificially Cal.Penal Code Ann. § 1192.5 (1978); App. limiting ACCA's reach and treating similar 26a, and we must presume that the plea convictions differently based solely on the proceedings were conducted in a regular vagaries of state law. Defendants convicted of manner, see Parke v. Raley, 506 U.S. 20, 29– the elements of generic burglary in California 30, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). The will not be subject to ACCA, but defendants unmistakable inference arising from the plea who engage in exactly the same behavior in, transcript is that the trial judge—quite say, Virginia, will fall within ACCA's reach. reasonably—understood petitioner and his See Va.Code Ann. § 18.2–90 (Lexis 2009). attorney to assent to the factual basis provided by the prosecutor. Both the District I would avoid these problems by applying Court and the Court of Appeals concluded the modified categorical approach to § 459— that petitioner had admitted and, as a and any other similar burglary statute from practical matter, was convicted for having another State—and would ask whether the committed the elements of generic burglary, relevant portions of the state record clearly and we did not agree to review that fact- show that the jury necessarily found, or the bound determination, see 567 U.S. ––––, 133 defendant necessarily admitted, the elements S.Ct. 90, 183 L.Ed.2d 730 (2012) (granting of generic burglary. If the state-court record is certiorari “limited to Question 1 presented by inconclusive, then the conviction should not the petition”). count. But where the record is clear, I see no reason for granting a special dispensation. Even if that determination is reviewed, however, the lower courts' conclusion should IV be sustained. Under the California burglary statute, as interpreted by the State Supreme When the modified categorical approach Court, a defendant must either (a) commit a is applied to petitioner's conviction, it is clear trespass in entering the location in question that he “necessarily admitted”—and therefore or (b) enter in violation of some other was convicted for committing—the elements possessory right. See People v. Gauze, 15 of generic burglary: the unlawful or Cal.3d 709, 713–714, 125 Cal.Rptr. 773, 542 unprivileged entry of a building with the P.2d 1365, 1367 (1975).5 intent to commit a crime. In this case, the judge who accepted Both the complaint and information petitioner's guilty plea must have relied on alleged that petitioner “unlawfully and petitioner's implicit admission that he feloniously enter[ed]” a building (the “broke” into the store, for if petitioner had “CentroMart”) “with the intent to commit admitted only that he entered the store, the theft therein.” App. 14a–17a. When the trial judge would not have been able to assess court inquired into the factual basis for whether he had invaded a possessory right. petitioner's plea, the prosecutor stated that Nor would an admission to merely “entering” petitioner's crime involved “the breaking and the store have permitted the judge to assess entering of a grocery store.” Id., at 25a. whether petitioner entered with the intent to Neither petitioner nor his attorney voiced any commit a crime; petitioner's admission to objection.4Ibid. In order to accept petitioner's “breaking” was therefore critical to that plea, the trial court was required under element, as well. Cf. Black's Law Dictionary Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

236 (rev. 4th ed. 1968) (“Breaking” denotes banc) (same). the “tearing away or removal of any part of a house or of the locks, latches, or other fastenings intended to secure it, or otherwise 2. The dissent delves into the nuances of exerting force to gain an entrance, with the various States' laws in an effort to cast doubt intent to commit a felony”). on this understanding of our prior holdings, arguing that we used the modified categorical We have explained that burglary under § approach in cases like Taylor, Shepard, and 924(e) means “an unlawful or unprivileged Johnson “in relation to statutes that may not entry into, or remaining in, a building or have been divisible” in the way that we have other structure, with intent to commit a just described. Post, at 2297 (ALITO, J.). But crime.” Taylor, 495 U.S., at 598, 110 S.Ct. if, as the dissent claims, the state laws at issue 2143. Based on petitioner's guilty plea and the in those cases set out “merely alternative Shepard documents, it is clear that petitioner means, not alternative elements” of an necessarily admitted the elements of generic offense, post, at 2298, that is news to us. And burglary. He unlawfully entered a building more important, it would have been news to with the intent to commit a crime. the Taylor, Shepard, and Johnson Courts: All Accordingly, I would hold that petitioner's those decisions rested on the explicit premise conviction under § 459 qualifies as a that the laws “contain [ed] statutory phrases conviction for “burglary” under § 924(e). that cover several different ... crimes,” not several different methods of committing one For these reasons, I would affirm the offense. Johnson, 559 U.S., at 144, 130 S.Ct. decision of the Court of Appeals, and I 1265 (citing Nijhawan, 557 U.S., at 41, 129 therefore respectfully dissent. S.Ct. 2294). And if the dissent's real point is that distinguishing between “alternative elements” and “alternative means” is difficult, ------we can see no real-world reason to worry. Whatever a statute lists (whether elements or Notes: means), the documents we approved in Taylor and Shepard— i.e., indictment, jury * The syllabus constitutes no part of the instructions, plea colloquy, and plea opinion of the Court but has been prepared by agreement—would reflect the crime's the Reporter of Decisions for the convenience elements. So a court need not parse state law of the reader. See United States v. Detroit in the way the dissent suggests: When a state Timber & Lumber Co., 200 U.S. 321, 337, 26 law is drafted in the alternative, the court S.Ct. 282, 50 L.Ed. 499. merely resorts to the approved documents 1. Compare, e.g.,466 Fed.Appx. 563, 565 and compares the elements revealed there to (C.A.9 2012) (case below) (applying the those of the generic offense. modified categorical approach to § 459); United States v. Armstead, 467 F.3d 943, 947–950 (C.A.6 2006) (applying that 3. The dissent, as we understand it, takes approach to a similar, indivisible statute), the same view as the Ninth Circuit; with, e.g.,United States v. Beardsley, 691 accordingly, each of the reasons—statutory, F.3d 252, 268–274 (C.A.2 2012) (holding that constitutional, and practical—that leads us to the modified categorical approach applies reject Aguila–Montes proves fatal to the only to divisible statutes); United States v. dissent's position as well. The dissent several Giggey, 551 F.3d 27, 40 (C.A.1 2008) (en times obscures its call to explore facts with language from our categorical cases, asking Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

whether “the relevant portions of the state 263 (3d ed. 2007) (“[W]here a statute record clearly show that the jury necessarily specifies several different ways in which the found, or the defendant necessarily admitted, crime can be committed, [courts often] hold the elements of [the] generic [offense].” Post, that the pleading must refer to the particular at 2302; see Shepard, 544 U.S., at 24, 125 alternative presented in the individual case”). S.Ct. 1254 (plurality opinion) (reiterating Taylor 's “demanding requirement that ... a prior conviction ‘ necessarily’ involve[ ] ” a 5. Several decisions treat “invasion of a jury finding on each element of the generic possessory right” as an aspect of § 459's entry offense) (emphasis added). But the dissent element, see, e.g., People v. Waidla, 22 nowhere explains how a factfinder can have Cal.4th 690, 723, 94 Cal.Rptr.2d 396, 996 “necessarily found” a non-element—that is, a P.2d 46, 65 (2000); Fortes v. Sacramento fact that by definition is not necessary to Munic. Ct. Dist., 113 Cal.App.3d 704, 712– support a conviction. The dissent's 714, 170 Cal.Rptr. 292, 296–297 (1980), but fundamental view is that a sentencing court others view the issue of possessory right as should be able to make reasonable bearing only on the affirmative defense of “inference[s]” about what the factfinder really consent, see, e.g., People v. Sherow, 196 (even though not necessarily) found. See post, Cal.App.4th 1296, 1303–1305, 1311, and n. 9, at 2302 – 2303. That position accords with 128 Cal.Rptr.3d 255, 260–261, 266, and n. 9 our dissenting colleague's previously (2011); People v. Felix, 23 Cal.App.4th 1385, expressed skepticism about the categorical 1397, 28 Cal.Rptr.2d 860, 867 (1994). And approach. See Moncrieffe v. Holder, 569 U.S. California's pattern jury instructions do not ––––, ––––, 133 S.Ct. 1678, 1701, 185 require the jury to find invasion of a L.Ed.2d 727 (2013) (ALITO, J., dissenting) (“I possessory right before convicting a would hold that the categorical approach is defendant of burglary. See 1 Cal. Jury Instr., not controlling where the state conviction at Crim., No. 1700 (2012). issue was based on a state statute that encompasses both a substantial number of cases that qualify under the federal standard 6. The Government here forfeited an and a substantial number that do not. In such alternative argument that § 459 qualifies as a situations, it is appropriate to look beyond the predicate offense under ACCA's “residual elements of the state offense and to rely as clause,” which covers statutes “involv[ing] well on facts that were admitted in state court conduct that presents a serious potential risk or that, taking a realistic view, were clearly of physical injury to another.” 18 U.S.C. § proved”). But there are several decades of 924(e)(2)(B)(ii). We express no view on that water over that dam, and the dissent offers no argument's merits. Compare United States v. newly persuasive reasons for revisiting our Mayer, 560 F.3d 948, 960–963 (C.A.9 2009) precedents. (holding that Oregon's burglary statute falls within the residual clause, even though it does not include all of generic burglary's 4. See also 1 C. Wright & A. Leipold, elements), with id., at 951 (Kozinski, C.J., Federal Practice and Procedure: Criminal § dissenting from denial of rehearing en banc) 125, pp. 550–551 (4th ed. 2008) (“If a single (arguing that the panel opinion “is a train statute sets forth several different offenses, wreck in the making”). [a] pleading ... that does not indicate which crime [the] defendant allegedly committed is insufficient”); 5 W. LaFave, J. Israel, N. King, 1. However, because the Shepard & O. Kerr, Criminal Procedure § 19.3(a), p. documents did not reveal whether Johnson Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438, 81 USLW 4490 (2013)

had been found to have touched or struck, we candlestick, wrench, or lead pipe. But in real had to determine whether the relatively life, the colonel would almost certainly not innocuous phrase—“[a]ctually and escape conviction simply because the jury was intentionally touch[ing]” another person— unable to agree on the particular type of blunt constituted physical force for purposes of § instrument that he used to commit the 924(e)(2)(B)(i). See Johnson, 559 U.S., at 137, murder. 130 S.Ct. 1265. 4. The Ninth Circuit has held that a court 2. The remaining case, Taylor v. United applying the modified categorical approach States, 495 U.S. 575, 110 S.Ct. 2143, 109 may rely on a prosecutor's statement as to the L.Ed.2d 607 (1990), may also have involved a factual basis for a guilty plea when that statute that was not divisible, but the statement is offered on the record in the situation is less clear. There, the defendant defendant's presence and the defendant does had several Missouri burglary convictions, not object. United States v. Hernandez– and Missouri had several different burglary Hernandez, 431 F.3d 1212, 1219 (2005). provisions in effect at the time in question. Petitioner has not challenged the Ninth See id., at 578, n. 1, 110 S.Ct. 2143. The Circuit's rule, and that issue is not within the particular provision involved in each of those scope of the question on which we granted cases was not certain. Ibid. At least one of certiorari. Accordingly, I would apply it for those provisions, however, may not have been purposes of this case. divisible. That provision, Mo.Rev.Stat. § 560.070 (1969) (repealed), applied not only 5. The majority suggests that California to buildings but also to “any booth or tent,” law is ambiguous as to this requirement, see “any boat or vessel,” or a “railroad car.” It is ante, at 2291 – 2292, n. 5, but any confusion not entirely clear whether a Missouri court appears to have arisen after petitioner's 1978 would have required jurors to agree on a conviction and is therefore irrelevant for particular choice from this list. In State v. purposes of this case. Cf. McNeill v. United Vandergriff, 403 S.W.2d 579, 581 (Mo.1966), States, 563 U.S. ––––, ––––, 131 S.Ct. 2218, the Missouri Supreme Court held that an 2219, 180 L.Ed.2d 35 (2011) (“The only way to information was deficient because it “omitted answer [ACCA's] backward-looking question a description of the type of building that [whether a previous conviction was for a might be burglarized as defined by § 560.070, serious drug offense] is to consult the law that and thereby omitted an essential element of applied at the time of that conviction”). the offense of burglary in the second degree.” Because an information must generally include factual details that go beyond the elements of an offense, see 5 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 19.3(b), p. 276 (3d ed. 2007) (hereinafter LaFave), it is possible that the Missouri court did not mean to say that the type of building was an element in the sense in which I understand the Court to use the term here.

3. The board game Clue, to which the Court refers, see ante, at 2290 – 2291, does not provide sound legal guidance. In that game, it matters whether Colonel Mustard bashed in the victim's head with a Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

569 U.S. 184 Attorney General from granting discretionary 133 S.Ct. 1678 relief from removal to an aggravated felon, no 185 L.Ed.2d 727 matter how compelling his case. Among the crimes that are classified as aggravated Adrian MONCRIEFFE, Petitioner felonies, and thus lead to these harsh v. consequences, are illicit drug trafficking Eric H. HOLDER, Jr., Attorney offenses. We must decide whether this General. category includes a state criminal statute that extends to the social sharing of a small No. 11–702. amount of marijuana. We hold it does not.

Supreme Court of the United States I

Argued Oct. 10, 2012. A Decided April 23, 2013. The INA allows the Government to deport Thomas C. Goldstein, Washington, DC, for various classes of noncitizens, such as those Petitioner. who overstay their visas, and those who are convicted of certain crimes while in the Pratik A. Shah, Washington, DC, for United States, including drug offenses. § Respondent. 1227. Ordinarily, when a noncitizen is found to be deportable on one of these grounds, he Pamela S. Karlan, Jeffrey L. Fisher, Stanford may ask the Attorney General for certain Law School, Supreme Court Litigation Clinic, forms of discretionary relief from removal, Stanford, CA, Angel L. Arias, Arias Law like asylum (if he has a well-founded fear of Group, P.A., Hollywood, FL, Thomas C. persecution in his home country) and Goldstein, Counsel of Record, Kevin K. cancellation of removal (if, among other Russell, Amy Howe, Tejinder Singh, things, he has been lawfully present in the Goldstein & Russell, P.C., Washington, DC, United States for a number of years). §§ 1158, for Petitioner. 1229b. But if a noncitizen has been convicted of one of a narrower set of crimes classified as Donald B. Verrilli, Jr., Solicitor General, "aggravated felonies," then he is not only Stuart F. Delery, Acting Assistant Attorney deportable, § 1227(a)(2)(A)(iii), but also General, Edwin S. Kneedler, Deputy Solicitor ineligible for these discretionary forms of General, Pratik A. Shah, Assistant to the relief. See §§ 1158(b)(2)(A)(ii), (B)(i); §§ Solicitor General, Counsel of Record, Donald 1229b(a)(3), (b)(1)(C).1 E. Keener, W. Manning Evans, Attorneys, Department of Justice, Washington, DC, for [133 S.Ct. 1683] Respondent. [569 U.S. 188] Justice SOTOMAYOR delivered the opinion of the Court. The INA defines "aggravated felony" to include a host of offenses. § 1101(a)(43). [569 U.S. 187] Among them is "illicit trafficking in a controlled substance." § 1101(a)(43)(B). This The Immigration and Nationality Act (INA), general term is not defined, but the INA 66 Stat. 163, 8 U.S.C. § 1101 et seq., provides states that it "includ[es] a drug trafficking that a noncitizen who has been convicted of crime (as defined in section 924(c) of title 18 an " aggravated felony" may be deported from )." Ibid. In turn, 18 U.S.C. § 924(c)(2) defines this country. The INA also prohibits the Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

"drug trafficking crime" to mean "any felony Government reasoned that possession of punishable under the Controlled Substances marijuana with intent to distribute is an Act," or two other statutes not relevant here. offense under the CSA, 21 U.S.C. § 841(a), The chain of definitions ends with § punishable by up to five years' imprisonment, 3559(a)(5), which provides that a "felony" is § 841(b)(1)(D), and thus an aggravated felony. an offense for which the "maximum term of An Immigration Judge agreed and ordered imprisonment authorized" is "more than one Moncrieffe removed. App. to Pet. for Cert. year." The upshot is that a noncitizen's 14a–18a. The Board of Immigration Appeals conviction of an offense that the Controlled (BIA) affirmed that conclusion on appeal. Id., Substances Act (CSA) makes punishable by at 10a–13a. more than one year's imprisonment will be counted as an "aggravated felony" for The Court of Appeals denied Moncrieffe's immigration purposes. A conviction under petition for review. The court rejected either state or federal law may qualify, but a Moncrieffe's reliance upon § 841(b)(4), a "state offense constitutes a 'felony punishable provision that, in effect, makes marijuana under the Controlled Substances Act' only if it distribution punishable only as a proscribes conduct punishable as a felony misdemeanor if the offense involves a small under that federal law." Lopez v. Gonzales, amount of marijuana for no remuneration. It 549 U.S. 47, 60, 127 S.Ct. 625, 166 L.Ed.2d held that in a federal criminal prosecution, 462 (2006). "the default sentencing range for a marijuana distribution offense is the CSA's felony B provision, § 841(b)(1)(D), rather than the misdemeanor provision." Petitioner Adrian Moncrieffe is a Jamaican citizen who came to the United States legally [133 S.Ct. 1684] in 1984, when he was three. During a 2007 traffic stop, police found 1.3 grams of 662 F.3d 387, 392 (C.A.5 2011). Because marijuana in his car. This is the equivalent of Moncrieffe's Georgia offense penalized about two or three marijuana cigarettes. possession of marijuana with intent to Moncrieffe pleaded guilty to possession of distribute, the court concluded that it was marijuana with intent to distribute, a "equivalent to a federal felony." Ibid. violation of Ga.Code Ann. § 16–13–30(j)(1) (2007). Under a Georgia statute providing We granted certiorari, 566 U.S. ––––, 132 more lenient treatment to first-time S.Ct. 1857, 182 L.Ed.2d 642 (2012), to resolve offenders, a conflict among the Courts of Appeals with respect to whether a conviction under a [569 U.S. 189] statute that criminalizes conduct described by both § 841's felony provision and its § 42–8–60(a) (1997), the trial court withheld misdemeanor provision, such as a statute that entering a judgment of conviction or punishes all imposing any term of imprisonment, and instead required that Moncrieffe complete [569 U.S. 190] five years of probation, after which his charge will be expunged altogether.2 App. to Brief for marijuana distribution without regard to the Petitioner 11–15. amount or remuneration, is a conviction for an offense that "proscribes conduct Alleging that this Georgia conviction punishable as a felony under" the CSA.3 constituted an aggravated felony, the Federal Lopez, 549 U.S., at 60, 127 S.Ct. 625. We now Government sought to deport Moncrieffe. The reverse. Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

II States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ; see Guarino, 107 F.2d, at A 400. But this rule is not without qualification. First, our cases have addressed state statutes When the Government alleges that a state that contain several different crimes, each conviction qualifies as an "aggravated felony" described separately, and we have held that a under the INA, we generally employ a court may determine which particular offense "categorical approach" to determine whether the noncitizen was convicted of by examining the state offense is comparable to an offense the charging document and jury instructions, listed in the INA. See, e.g., Nijhawan v. or in the case of a guilty plea, the plea Holder, 557 U.S. 29, 33–38, 129 S.Ct. 2294, agreement, plea colloquy, or " 'some 174 L.Ed.2d 22 (2009) ; Gonzales v. Duenas– comparable judicial record' of the factual Alvarez, 549 U.S. 183, 185–187, 127 S.Ct. 815, basis for the plea." Nijhawan, 557 U.S., at 35, 166 L.Ed.2d 683 (2007). Under this approach 129 S.Ct. 2294 (quoting Shepard, 544 U.S., at we look "not to the facts of the particular 26, 125 S.Ct. 1254). Second, our focus on the prior case," but instead to whether "the state minimum conduct criminalized by the state statute defining the crime of conviction" statute is not an categorically fits within the "generic" federal definition of a corresponding aggravated [133 S.Ct. 1685] felony. Id., at 186, 127 S.Ct. 815 (citing Taylor v. United States, 495 U.S. 575, 599–600, 110 invitation to apply "legal imagination" to the S.Ct. 2143, 109 L.Ed.2d 607 (1990) ). By state offense; there must be "a realistic "generic," we mean the offenses must be probability, not a theoretical possibility, that viewed in the abstract, to see whether the the State would apply its statute to conduct state statute shares the nature of the federal that falls outside the generic definition of a offense that serves as a point of comparison. crime." Duenas–Alvarez, 549 U.S., at 193, 127 Accordingly, a state offense is a categorical S.Ct. 815. match with a generic federal offense only if a conviction of the state offense " 'necessarily' This categorical approach has a long pedigree involved ... facts equating to [the] generic in our Nation's immigration law. See Das, The [federal offense]." Shepard v. United States, Immigration Penalties of Criminal 544 U.S. 13, 24, 125 S.Ct. 1254, 161 L.Ed.2d Convictions: Resurrecting Categorical 205 (2005) (plurality opinion). Whether the Analysis in Immigration Law, 86 noncitizen's actual conduct involved such N.Y.U.L.Rev. 1669, 1688–1702, 1749–1752 facts "is quite irrelevant." United States ex (2011) (tracing judicial decisions back to rel. Guarino v. Uhl, 107 F.2d 399, 400 (C.A.2 1913). The reason is that the INA asks what 1939) (L. Hand, J.). offense the noncitizen was "convicted" of, 8 U.S.C. § 1227(a)(2)(A)(iii), not what acts he Because we examine what the state conviction committed. "[C]onviction" is "the relevant necessarily involved, not the facts underlying statutory hook."4 Carachuri–Rosendo v. the case, we must presume Holder, 560 U.S. ––––, ––––, 130 S.Ct. 2577, 2588, 177 L.Ed.2d 68 (2010); see [569 U.S. 191] United States ex rel. Mylius v. Uhl, 210 F. 860, 862 (C.A.2 1914). that the conviction " rested upon [nothing] more than the least of th[e] acts" B criminalized, and then determine whether even those acts are encompassed by the [569 U.S. 192] generic federal offense. Johnson v. United Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

The aggravated felony at issue here, "illicit Section 841 is divided into two subsections trafficking in a controlled substance," is a that are relevant here: (a), titled "Unlawful "generic crim[e]." Nijhawan, 557 U.S., at 37, acts," which includes the offense just 129 S.Ct. 2294. So the categorical approach described, and (b), titled "Penalties." applies. Ibid. As we have explained, supra, at Subsection (b) tells us how "any person who 1682 – 1683, this aggravated felony violates subsection (a)" shall be punished, encompasses all state offenses that "proscrib[e] conduct punishable as a felony [133 S.Ct. 1686] under [the CSA]." Lopez, 549 U.S., at 60, 127 S.Ct. 625. In other words, to satisfy the depending on the circumstances of his crime categorical approach, a state drug offense (e.g., the type and quantity of controlled must meet two conditions: It must substance involved, whether it is a repeat "necessarily" proscribe conduct that is an offense).6 Subsection (b)(1)(D) provides that offense under the CSA, and the CSA must if a person commits a violation of subsection "necessarily" prescribe felony punishment for (a) involving "less than 50 kilograms of that conduct. marihuana," then "such person shall, except as provided in paragraphs (4) and (5) of this Moncrieffe was convicted under a Georgia subsection, be sentenced to a term of statute that makes it a crime to "possess, have imprisonment of not more than 5 years," i.e., under [one's] control, manufacture, deliver, as a felon. But one of the exceptions is distribute, dispense, administer, purchase, important here. Paragraph (4) provides, sell, or possess with intent to distribute "Notwithstanding paragraph (1)(D) of this marijuana." Ga.Code Ann. § 16–13–30(j)(1). subsection, any person who violates We know from his plea agreement that subsection (a) of this section by distributing a Moncrieffe was convicted of the last of these small amount of marihuana for no offenses. App. to Brief for Petitioner 11; remuneration shall be treated as" a simple Shepard, 544 U.S., at 26, 125 S.Ct. 1254. We drug possessor, 21 U.S.C. § 844, which therefore must determine whether possession of marijuana with intent to distribute is [569 U.S. 194] "necessarily" conduct punishable as a felony 7 under the CSA. for our purposes means as a misdemeanant. These dovetailing provisions create two We begin with the relevant conduct mutually exclusive categories of punishment criminalized by the CSA. There is no question for CSA marijuana distribution offenses: one that it is a federal crime to "possess with a felony, and one not. The only way to know intent to ... distribute ... a controlled whether a marijuana distribution offense is substance," 21 U.S.C. § 841(a)(1), one of "punishable as a felony" under the CSA, which is marijuana, § 812(c).5 So far, the state Lopez, 549 U.S., at 60, 127 S.Ct. 625, is to and federal provisions correspond. But this is know whether the conditions described in not enough, because the generically defined paragraph (4) are present or absent. federal crime is "any felony punishable under the Controlled Substances Act," 18 U.S.C. § A conviction under the same Georgia statute 924(c)(2), not just any "offense under the for "sell[ing]" marijuana, for example, would seem to establish remuneration. The presence [569 U.S. 193] of remuneration would mean that paragraph (4) is not implicated, and thus that the CSA." Thus we must look to what punishment conviction is necessarily for conduct the CSA imposes for this offense. punishable as a felony under the CSA (under paragraph (1)(D)). In contrast, the fact of a Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

conviction for possession with intent to First, the Government reads our cases to hold distribute marijuana, standing alone, does that the categorical approach is concerned not reveal whether either remuneration or only with the "elements" of an offense, so § more than a small amount of marijuana was 841(b)(4)"is not relevant" to the categorical involved. It is possible neither was; we know analysis. Id., at 20. It is enough to satisfy the that Georgia prosecutes this offense when a categorical inquiry, the Government suggests, defendant possesses only a small amount of that the "elements" of Moncrieffe's Georgia marijuana, see, e.g., Taylor v. State, 260 offense are the same as those of the CSA Ga.App. 890, 581 S.E.2d 386, 388 (2003) (6.6 offense: (1) possession (2) of marijuana (a grams), and that "distribution" does not controlled substance), (3) with intent to require remuneration, see, e.g., Hadden v. distribute it. But that understanding is State, 181 Ga.App. 628, 628–629, 353 S.E.2d inconsistent with Carachuri–Rosendo, our 532, 533–534 (1987). So Moncrieffe's only decision to address both "elements" and "sentencing factors." There we recognized [133 S.Ct. 1687] that when Congress has chosen to define the generic federal offense by reference to conviction could correspond to either the CSA punishment, it may be necessary to take felony or the CSA misdemeanor. Ambiguity account of federal sentencing factors too. See on this point means that the conviction did 560 U.S., at ––––, 130 S.Ct., at 2581–2582. not "necessarily" involve In that case the relevant CSA offense was simple possession, which "becomes a 'felony [569 U.S. 195] punishable under the [CSA]' only because the sentencing factor of recidivism authorizes facts that correspond to an offense punishable additional punishment beyond one year, the as a felony under the CSA. Under the criterion for a felony." Id., at ––––, 130 S.Ct., categorical approach, then, Moncrieffe was at 2590 (SCALIA, J., concurring in not convicted of an aggravated felony. judgment). We therefore called

III [569 U.S. 196]

A the generic federal offense "recidivist simple possession," even though such a crime is not The Government advances a different actually "a separate offense" under the CSA, approach that leads to a different result. In its but rather an " 'amalgam' " of offense view, § 841(b)(4)'s misdemeanor provision is elements and sentencing factors. Id., at ––––, irrelevant to the categorical analysis because and n. 3, ––––, 130 S.Ct., at 2581–2582, and paragraph (4) is merely a "mitigating n. 3, 2583–2584 (majority opinion). exception," to the CSA offense, not one of the "elements" of the offense. Brief for In other words, not only must the state Respondent 12. And because possession with offense of conviction meet the "elements" of intent to distribute marijuana is the generic federal offense defined by the "presumptive[ly]" a felony under the CSA, the INA, but the CSA must punish that offense as Government asserts, any state offense with a felony. Here, the facts giving rise to the CSA the same elements is presumptively an offense establish a crime that may be either a aggravated felony. Id., at 37. These two felony or a misdemeanor, depending upon the contentions are related, and we reject both of presence or absence of certain factors that are them. not themselves elements of the crime. And so to qualify as an aggravated felony, a Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

conviction for the predicate offense must factors in each case. See, e.g., United States v. necessarily establish those factors as well. Outen, 286 F.3d 622, 636–639 (C.A.2 2002) (describing § 841(b)(4) as a "mitigating The Government attempts to distinguish exception"); United States v. Hamlin, 319 Carachuri–Rosendo on the ground that the F.3d 666, 670–671 (C.A.4 2003) (collecting sentencing factor there was a "narrow" cases). Instead, the burden is on the aggravating exception that turned a defendant to show that he qualifies for the misdemeanor into a felony, whereas here § lesser sentence under § 841(b) (4). Cf. id., at 841(b)(4) is a narrow mitigation exception 671. that turns a felony into a misdemeanor. Brief for Respondent 40–43. This argument hinges We cannot discount § 841's text, however, upon the Government's second assertion: that which creates no default punishment, in favor any marijuana distribution conviction is of the procedural overlay or burdens of proof "presumptively" a felony. But that is simply that would apply in a hypothetical federal incorrect, and the Government's argument criminal prosecution. In Carachuri–Rosendo, collapses as a result. Marijuana distribution is we rejected the Fifth Circuit's " 'hypothetical neither a felony nor a misdemeanor until we approach,' " which examined whether know whether the conditions in paragraph (4) conduct " 'could have been punished as a felony' 'had [it] been prosecuted in federal [133 S.Ct. 1688] court.' " 560 U.S., at ––––, ––––, 130 S.Ct., at 2584, 2585–2586.8 The outcome in a attach: Section 841(b)(1)(D) makes the crime hypothetical prosecution is not the relevant punishable by five years' imprisonment inquiry. Rather, our "more focused, "except as provided" in paragraph (4), and § categorical inquiry" is whether the record of 841(b)(4) makes it punishable as a conviction of the predicate misdemeanor "[n]otwithstanding paragraph (1)(D)" when only "a small amount of [569 U.S. 198] marihuana for no remuneration" is involved. (Emphasis added.) The CSA's text makes offense necessarily establishes conduct that neither provision the default. Rather, each is the CSA, on its own terms, makes punishable drafted to be exclusive of the other. as a felony. Id., at ––––, 130 S.Ct., at 2588– 2589. Like the BIA and the Fifth Circuit, the Government believes the felony provision to The analogy to a federal prosecution is be the default because, in practice, that is how misplaced for another reason. The Court of federal criminal prosecutions for marijuana Appeals cases the Government cites distinguished between elements and [569 U.S. 197] sentencing factors to determine which facts must be proved to a jury, in light of the Sixth distribution operate. See 662 F.3d, at 391– Amendment concerns addressed in Apprendi 392; Matter of Aruna, 24 I. & N. Dec. 452, v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 456–457 (2008) ; Brief for Respondent 18– 147 L.Ed.2d 435 (2000). The courts 23. It is true that every Court of Appeals to considered which "provision ... states a have considered the question has held that a complete crime upon the fewest facts, " defendant is eligible for a 5–year sentence Outen, 286 F.3d, at 638, which was under § 841(b)(1)(D) if the Government significant after Apprendi to identify what a proves he possessed marijuana with the jury had to find before a defendant could intent to distribute it, and that the receive § 841(b)(1)(D)'s maximum 5–year Government need not negate the § 841(b)(4) Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

sentence. But those concerns do not apply in 625. Consider a conviction under a New York this context. Here we consider a "generic" statute that provides, "A person is guilty of criminal sale of marihuana in the fifth degree [133 S.Ct. 1689] when he knowingly and unlawfully sells, without consideration, [marihuana] of an federal offense in the abstract, not an actual aggregate weight of two grams or less ; or federal offense being prosecuted before a jury. one cigarette containing marihuana." N.Y. Our concern is only which facts the CSA relies Penal Law Ann. § 221.35 (West 2008) upon to distinguish between felonies and (emphasis added). This statute criminalizes misdemeanors, not which facts must be found only the distribution of a small amount of by a jury as opposed to a judge, nor who has marijuana for no remuneration, and so all the burden of proving which facts in a federal convictions under the statute would fit within prosecution.9 the CSA misdemeanor provision, § 841(b)(4). But the Government would categorically Because of these differences, we made clear in deem a conviction under this statute to be an Carachuri–Rosendo that, for purposes of the aggravated felony, because the statute INA, a generic federal offense may be defined contains the corresponding "elements" of (1) by reference to both " 'elements' in the distributing (2) marijuana, and the traditional sense" and sentencing factors. 560 Government believes all marijuana U.S., at ––––, n. 3, ––––, 130 S.Ct., at 2581– distribution offenses are punishable as 2582, and n. 3, 2583–2584; see also id., at –– felonies. ––, 130 S.Ct., at 2581–2582 (SCALIA, J., concurring in judgment) (describing the The same anomaly would result in the case of generic federal offense there as "the a noncitizen convicted of a misdemeanor in Controlled Substances Act felony of federal court under § 841(a) and (b)(4) possession-plus-recidivism"). Indeed, the directly. Even in that case, under the distinction between "elements" and Government's logic, we would need to treat "sentencing factors" did not exist when the federal misdemeanor conviction as an Congress added illicit drug trafficking to the aggravated felony, because the conviction list of aggravated felonies, Anti–Drug Abuse establishes elements of an offense that is Act of 1988, 102 presumptively a felony. This cannot be. "We cannot imagine that Congress took the [569 U.S. 199] trouble to incorporate its own statutory scheme of felonies and misdemeanors," only Stat. 4469–4470, and most courts at the time to have courts presume felony treatment and understood both § 841(b)(1)(D) and § ignore the very factors that distinguish 841(b)(4) to contain sentencing factors that felonies from misdemeanors. Lopez, 549 U.S., draw the line between a felony and a at 58, 127 S.Ct. 625. misdemeanor. See, e.g., United States v. Campuzano, 905 F.2d 677, 679 (C.A.2 1990). [133 S.Ct. 1690] Carachuri–Rosendo controls here. B Finally, there is a more fundamental flaw in the Government's approach: It would render [569 U.S. 200] even an undisputed misdemeanor an aggravated felony. This is "just what the Recognizing that its approach leads to English language tells us not to expect," and consequences Congress could not have that leaves us "very wary of the Government's intended, the Government hedges its position." Lopez, 549 U.S., at 54, 127 S.Ct. argument by proposing a remedy: Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

Noncitizens should be given an opportunity long after the fact. Chambers v. United during immigration proceedings to States, 555 U.S. 122, 125, 129 S.Ct. 687, 172 demonstrate that their predicate marijuana L.Ed.2d 484 (2009) ; see also Mylius, 210 F., distribution convictions involved only a small at 862–863. Yet the Government's approach amount of marijuana and no remuneration, would have our Nation's overburdened just as a federal criminal defendant could do immigration courts entertain and weigh at sentencing. Brief for Respondent 35–39. testimony from, for example, the friend of a This is the procedure adopted by the BIA in noncitizen who may have shared a marijuana Matter of Castro Rodriguez, 25 I. & N. Dec. cigarette with him at a party, or the local 698, 702 (2012), and endorsed by Justice police officer who recalls to the contrary that ALITO's dissent, post, at 1701 – 1702. cash traded hands. And, as a result, two noncitizens, each "convicted of" the same This solution is entirely inconsistent with offense, might obtain different aggravated both the INA's text and the categorical felony determinations depending on what approach. As noted, the relevant INA evidence remains available or how it is provisions ask what the noncitizen was perceived by an individual immigration judge. "convicted of," not what he did, and the The categorical approach was designed to inquiry in immigration proceedings is limited avoid this "potential unfairness." Taylor, 495 accordingly. 8 U.S.C. §§ 1227(a)(2)(A)(iii), U.S., at 601, 110 S.Ct. 2143; see also Mylius, 1229b(a)(3) ; see Carachuri–Rosendo, 560 210 F., at 863. U.S., at ––––, 130 S.Ct., at 2585–2586. The Government cites no statutory authority for Furthermore, the minitrials the Government such case-specific factfinding in immigration proposes would be possible only if the court, and none is apparent in the INA. noncitizen could locate witnesses years after Indeed, the Government's main categorical the fact, notwithstanding that during removal argument would seem to preclude this proceedings noncitizens are not guaranteed inquiry: If the Government were correct that legal representation and are often subject to "the fact of a marijuana-distribution mandatory detention, § 1226(c)(1)(B), where conviction alone constitutes a CSA felony," they have little ability to collect evidence. See Brief for Respondent 37, then all marijuana Katzmann, The Legal Profession and the distribution convictions would categorically Unmet Needs of the Immigrant Poor, 21 Geo. be convictions of the drug trafficking J. Legal Ethics 3, 5–10 (2008) ; Brief for aggravated felony, mandatory deportation National Immigrant Justice Center et al. as would follow under the statute, and there Amici Curiae 5–18; Brief for Immigration would be no room for the Government's Law Professors as Amici Curiae 27–32. A follow-on factfinding procedure. The noncitizen in removal proceedings is not at all Government cannot have it both ways. similarly situated to a defendant in a federal criminal prosecution. The Government's Moreover, the procedure the Government suggestion that the CSA's procedures could envisions would require precisely the sort of readily be replicated in immigration post hoc investigation into the facts of predicate offenses that we have long deemed [133 S.Ct. 1691] undesirable. The categorical approach serves "practical" purposes: It promotes judicial and proceedings is therefore misplaced. Cf. administrative efficiency by precluding the Carachuri–Rosendo, 560 U.S., at ––––, 130 relitigation of past convictions in minitrials S.Ct., at 2587–2588 (rejecting the conducted Government's argument that procedures governing determination of the recidivism [569 U.S. 201] Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

sentencing factor could "be satisfied during facts found in immigration proceedings. But the immigration proceeding"). where, as here, the INA incorporates other criminal statutes wholesale, we have held it The Government defends its proposed "must refer to generic crimes," to which the immigration court proceedings as "a categorical approach applies. Id., at 37, 129 subsequent step outside the categorical S.Ct. 2294. approach in light of Section 841(b)(4)'s 'circumstance-specific' Finally, the Government suggests that the immigration court's task would not be so [569 U.S. 202] daunting in some cases, such as those in which a noncitizen was convicted under the nature." Brief for Respondent 37. This New York statute previously discussed or argument rests upon Nijhawan, in which we convicted directly under § 841(b)(4). True, in considered another aggravated felony, "an those cases, the record of conviction might offense that ... involves fraud or deceit in reveal on its face that the predicate offense which the loss to the victim or victims exceeds was $10,000." 8 U.S.C. § 1101(a)(43)(M) (i). We held that the $10,000 threshold was not to be [569 U.S. 203] applied categorically as a required component of a generic offense, but instead called for a " punishable only as a misdemeanor. But most circumstance-specific approach" that allows States do not have stand-alone offenses for for an examination, in immigration court, of the social sharing of marijuana, so minitrials the "particular circumstances in which an concerning convictions from the other States, offender committed the crime on a particular such as Georgia, would be inevitable.10 The occasion." Nijhawan, 557 U.S., at 38–40, 129 Government suggests that even in these other S.Ct. 2294. The Government suggests the § States, the record of conviction may often 841(b)(4) factors are like the monetary address the § 841(b)(4) factors, because threshold, and thus similarly amenable to a noncitizens "will be advised of the circumstance-specific inquiry. immigration

We explained in Nijhawan, however, that [133 S.Ct. 1692] unlike the provision there, "illicit trafficking in a controlled substance" is a "generic consequences of a conviction," as defense crim[e]" to which the categorical approach counsel is required to do under Padilla v. applies, not a circumstance-specific provision. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 Id., at 37, 129 S.Ct. 2294; see also Carachuri– L.Ed.2d 284 (2010), and as a result counsel Rosendo, 560 U.S., at ––––, n. 11, 130 S.Ct., can build an appropriate record when the at 2586–2587 n. 11. That distinction is facts are fresh. Brief for Respondent 38. Even evident in the structure of the INA. The assuming defense counsel "will" do monetary threshold is a limitation, written something simply because it is required of into the INA itself, on the scope of the effective counsel (an assumption experience aggravated felony for fraud. And the does not always bear out), this argument is monetary threshold is set off by the words "in unavailing because there is no reason to which," which calls for a circumstance- believe that state courts will regularly or specific examination of "the conduct involved uniformly admit evidence going to facts, such 'in ' the commission of the offense of as remuneration, that are irrelevant to the conviction." Nijhawan, 557 U.S., at 39, 129 offense charged. S.Ct. 2294. Locating this exception in the INA proper suggests an intent to have the relevant Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

In short, to avoid the absurd consequences member of one "of the world's most that would flow from the Government's dangerous drug cartels," post, at 1696 narrow understanding of the categorical (opinion of ALITO, J.), just as he may deny approach, the Government proposes a relief if he concludes the negative equities solution that largely undermines the outweigh the positive equities of the categorical approach. That the only cure is noncitizen's case for other reasons. As a worse than the disease suggests the result, "to the extent that our rejection of the Government is simply wrong. Government's broad understanding of the scope of 'aggravated felony' may have any C practical effect on policing our Nation's borders, it is a limited one." Carachuri– The Government fears the consequences of Rosendo, 560 U.S., at ––––, 130 S.Ct., at our decision, but its concerns are 2589. exaggerated. The Government observes In any event, serious drug traffickers may be [569 U.S. 204] adjudicated aggravated felons regardless, because they will likely be convicted under that, like Georgia, about half the States greater "trafficking" offenses that necessarily criminalize marijuana distribution through establish that more than a small amount of statutes that do not require remuneration or marijuana was involved. See, e.g., Ga.Code any minimum quantity of marijuana. Id., at Ann. § 16–13–31(c)(1) (Supp.2012) 26–28. As a result, the Government contends, noncitizens convicted of marijuana [569 U.S. 205] distribution offenses in those States will avoid "aggravated felony" determinations, purely (separate provision for trafficking in more because their convictions do not resolve than 10 pounds of marijuana). Of course, whether their offenses involved federal felony some offenders' conduct will fall between § conduct or misdemeanor conduct, even 841(b)(4) conduct and the more serious though many (if not most) prosecutions conduct required to trigger a "trafficking" involve either remuneration or larger statute. Brief for Respondent 30. Those amounts of marijuana (or both). offenders may avoid aggravated felony status by operation of the categorical approach. But Escaping aggravated felony treatment does the Government's objection to that not mean escaping deportation, though. It underinclusive result is little more than an means only avoiding mandatory removal. See attack on the Carachuri–Rosendo, 560 U.S., at ––––, 130 S.Ct., at 2589. Any marijuana distribution [133 S.Ct. 1693] offense, even a misdemeanor, will still render a noncitizen deportable as a controlled categorical approach itself.11 We prefer this substances offender. 8 U.S.C. § degree of imperfection to the heavy burden of 1227(a)(2)(B)(i). At that point, having been relitigating old prosecutions. See supra, at found not to be an aggravated felon, the 1690 – 1691. And we err on the side of noncitizen may seek relief from removal such underinclusiveness because ambiguity in as asylum or cancellation of removal, criminal statutes referenced by the INA must assuming he satisfies the other eligibility be construed in the noncitizen's favor. See criteria. §§ 1158(b), 1229b(a)(1)-(2). But those Carachuri–Rosendo, 560 U.S., at ––––, 130 forms of relief are discretionary. The Attorney S.Ct., at 2589 ; Leocal v. Ashcroft, 543 U.S. 1, General may, in his discretion, deny relief if 11, n. 8, 125 S.Ct. 377, 160 L.Ed.2d 271 he finds that the noncitizen is actually a (2004). Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

Finally, the Government suggests that our "trafficking," which " 'ordinarily ... means holding will frustrate the enforcement of some sort of commercial dealing.' " other aggravated felony provisions, like § Carachuri–Rosendo, 560 U.S., at ––––, 130 1101(a)(43)(C), which refers to a federal S.Ct., at 2584–2585 (quoting Lopez, 549 U.S., firearms statute that contains an exception at 53–54, 127 S.Ct. 625). Nor is it sensible for "antique firearm[s]," 18 U.S.C. § 921(a)(3). that a state statute that criminalizes conduct The Government fears that a conviction under that the CSA treats as a misdemeanor should any state firearms law that lacks such an be designated an "aggravated felony." We exception will be deemed to fail the hold that it may not be. If a noncitizen's categorical inquiry. But Duenas–Alvarez conviction for a marijuana distribution offense fails to establish that the offense [569 U.S. 206] involved either remuneration or more than requires that there be "a realistic probability, [133 S.Ct. 1694] not a theoretical possibility, that the State would apply its statute to conduct that falls a small amount of marijuana, the conviction outside the generic definition of a crime." 549 is not for an aggravated felony under the INA. U.S., at 193, 127 S.Ct. 815. To defeat the The contrary judgment of the Court of categorical comparison in this manner, a Appeals noncitizen would have to demonstrate that the State actually prosecutes the relevant [569 U.S. 207] offense in cases involving antique firearms. Further, the Government points to § 1101 is reversed, and the case is remanded for (a)(43)(P), which makes passport fraud an further proceedings consistent with this aggravated felony, except when the noncitizen opinion. shows he committed the offense to assist an immediate family member. But that exception It is so ordered. is provided in the INA itself. As we held in Justice THOMAS, dissenting. Nijhawan, a circumstance-specific inquiry would apply to that provision, so it is not A plain reading of 18 U.S.C. § 924(c)(2) comparable. 557 U.S., at 37–38, 129 S.Ct. identifies two requirements that must be 2294. satisfied for a state offense to qualify as a "felony punishable under the Controlled * * * Substances Act [ (CSA) ]." "First, the offense This is the third time in seven years that we must be a felony; second, the offense must be have considered whether the Government has capable of punishment under the [CSA]." properly characterized a low-level drug Lopez v. Gonzales, 549 U.S. 47, 61, 127 S.Ct. offense as "illicit trafficking in a controlled 625, 166 L.Ed.2d 462 (2006) (THOMAS, J., substance," and thus an "aggravated felony." dissenting). Moncrieffe's offense of Once again we hold that the Government's possession of marijuana with intent to approach defies "the 'commonsense distribute satisfies both elements. No one conception' " of these terms. Carachuri– disputes that Georgia punishes Moncrieffe's Rosendo, 560 U.S., at ––––, 130 S.Ct., at offense as a felony. See Ga.Code Ann. § 16– 2584–2585 (quoting Lopez, 549 U.S., at 53, 13–30(j)(2) (Supp.2012). ("Except as 127 S.Ct. 625). Sharing a small amount of otherwise provided in subsection (c) of Code marijuana for no remuneration, let alone Section 16–13–31 or in Code Section 16–13– possession with intent to do so, "does not fit 2, any person who violates this subsection easily into the 'everyday understanding' " of shall be guilty of a felony and, upon Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

conviction thereof, shall be punished by as a misdemeanor, but his offense would have imprisonment for not less than one year nor been a felony under the CSA because he had a more than ten years").1 And, the offense is prior conviction. 560 U.S., at ––––, 130 S.Ct., "punishable under the [CSA]," 18 U.S.C. § at ––––. The Court held that the offense did 924(c)(2), because it involved "possess[ion] not constitute an "aggravated felony" because with intent to manufacture, distribute, or the state prosecutor had not charged the dispense, a controlled substance," 21 U.S.C. § existence of a prior conviction and, thus, the 841(a)(1). Accordingly, Moncrieffe's offense is defendant was not "actually convicted of a a "drug trafficking crime," 18 U.S.C. § crime that is itself punishable as a felony 924(c)(2), which constitutes under federal law." Id., at ––––, 130 S.Ct., at 2589. Concurring in the judgment, I [569 U.S. 208] [569 U.S. 209] an "aggravated felony" under the Immigration and Nationality Act (INA), 8 explained that the Court's decision was U.S.C. § 1101(a)(43)(B).2 inconsistent with Lopez because the defendant's conduct was punishable as a The Court rejected the plain meaning of 18 felony under the CSA, but that Lopez was U.S.C. § 924(c)(2) in Lopez, 549 U.S., at 50, wrongly decided and that a proper reading of 127 S.Ct. 625. There, the defendant was § 924(c)(2) supported the Court's result. 560 convicted of a state felony, but his offense U.S., at ––––, 130 S.Ct., at 2580. Carachuri– would have been a misdemeanor under the Rosendo's crime of conviction was a state-law CSA. Id., at 53, 127 S.Ct. 625. The Court held misdemeanor and, as a result, it did not that the offense did not constitute a " 'felony qualify as a "felony punishable under the punishable under the [CSA]' " because it was [CSA]." See ibid. not "punishable as a felony under that federal law." Id., at 60, 127 S.Ct. 625 (quoting § I declined to apply Lopez in Carachuri– 924(c)(2) ; emphasis added). I dissented in Rosendo, and I am unwilling to apply it here. Lopez and warned that an inquiry into Indeed, the Court itself declined to follow the whether a state offense would constitute a logic of Lopez to its natural end in felony in a hypothetical federal prosecution Carachuri–Rosendo . And, now the majority's would cause "significant inconsistencies." Id., ill-advised approach once again leads to an at 63, 127 S.Ct. 625. I explained that one such anomalous result. It is undisputed that, for inconsistency would arise if an alien federal sentencing purposes, Moncrieffe's defendant never convicted of an actual state offense would constitute a federal felony felony were subject to deportation based on a unless he could prove that he distributed only hypothetical federal prosecution. Id., at 67, a small amount of marijuana for no 127 S.Ct. 625. remuneration. Cf. United States v. Outen, 286 F.3d 622, 637–639 (C.A.2 2002) (Sotomayor, [133 S.Ct. 1695] J.) (agreeing with the Government that 21 U.S.C. § 841(b)(4) is a mitigating exception to This precise issue arose in Carachuri– the "default provision" under § 841(b)(1)(D) Rosendo v. Holder, 560 U.S. ––––, 130 S.Ct. and that it need not negate the § 841(b)(4) 2577, 177 L.Ed.2d 68 (2010). Instead of factors to support a sentence under § following the logic of Lopez, however, the 841(b)(1)(D) ). But, the Court holds that, for Court contorted the law to avoid the harsh purposes of the INA, Moncrieffe's offense result compelled by that decision. In would necessarily correspond to a federal Carachuri–Rosendo, the defendant was misdemeanor, regardless of whether he could convicted of a crime that the State categorized in fact prove that he distributed only a small Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

amount of marijuana for no remuneration. 1229b(a)(3) (2006 ed.). Among the serious Ante, at 1687 – 1688 (asserting that neither § crimes that carry this consequence is "illicit 841(b)(1)(D) nor § 841(b)(4) is the "default" trafficking in a controlled substance." § provision). The Court's decision, thus, has the 1101(a)(43)(B). effect of treating a substantial number of state felonies as federal misdemeanors, even when Under the Court's holding today, however, they would result in federal felony drug traffickers in about half the States are convictions. granted a dispensation. In those States, even if an alien is convicted of possessing tons of The majority notes that "[t]his is the third marijuana with the intent to distribute, the time in seven years that we have considered alien is eligible to remain in this country. whether the Government has properly Large-scale marijuana distribution is a major characterized a low-level drug offense as ... an source of income for some of the world's most 'aggravated felony.' " Ante, at 1693. The Court dangerous drug cartels, Dept. of Justice, has brought this upon itself. The only National Drug Intelligence Center, National principle uniting Lopez, Carachuri–Rosendo, Drug Threat Assessment 2, 7 (2011), but the and the decision today appears to be Court now holds that an alien convicted of

[569 U.S. 210] [569 U.S. 211] that the Government consistently loses. If the participating in such activity may petition to Court continues to disregard the plain remain in this country. meaning of § 924(c)(2), I expect that these types of cases will endlessly—and needlessly— The Court's decision also means that the recur. consequences of a conviction for illegal possession with intent to distribute will vary I respectfully dissent. radically depending on the State in which the case is prosecuted. Consider, for example, an Justice ALITO, dissenting. alien who is arrested near the Georgia– Florida border in possession of a large supply The Court's decision in this case is not of marijuana. Under the Court's holding, if supported by the language of the Immigration the alien is prosecuted and convicted in and Nationality Act (INA) or by this Court's Georgia for possession with intent to precedents, and it leads to results that distribute, he is eligible for cancellation of Congress clearly did not intend. removal. But if instead he is caught on the Florida side of the line and is convicted in a 1 Under the INA, aliens who are convicted of Florida court—where possession with intent certain offenses may be removed to distribute a small amount of marijuana for no remuneration is covered by a separate [133 S.Ct. 1696] statutory provision, compare Fla. Stat. § 893.13(3) (2010) with § 893.13(1)(a)(2) —the from this country, 8 U.S.C. § 1227(a)(2) alien is likely to be ineligible. Can this be what (2006 ed. and Supp. V), but in many Congress intended? instances, the Attorney General (acting through the Board of Immigration Appeals I (BIA)) has the discretion to cancel removal, §§ 1229b(a), (b). Aliens convicted of Certainly the text of the INA does not support especially serious crimes, however, are such a result. In analyzing the relevant INA ineligible for cancellation of removal. § provisions, the starting point is 8 U.S.C. § Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

1229b(a)(3), which provides that a lawful turning to that question, however, some permanent resident alien subject to removal preliminary principles should be established. may apply for discretionary cancellation of removal if he has not been convicted of any In Lopez v. Gonzales, 549 U.S. 47, 50, 127 "aggravated felony." The term "aggravated S.Ct. 625, 166 L.Ed.2d 462 (2006), we held felony" encompasses "illicit tracking in a that felony status is controlled by federal, not controlled substance ... including a drug state, law. As a result, once the relevant trafficking crime (as defined in [ 18 U.S.C. § conduct is identified, it must be determined 924(c) ] )." 8 U.S.C. § 1101(a)(43)(B). And this whether proof of that conduct would support latter provision defines a "drug trafficking a felony conviction under the CSA. The crime" to include "any felony punishable federal definition of a felony is a crime under the Controlled Substances Act ( 21 punishable by imprisonment for more than U.S.C. 801 et seq. )." 18 U.S.C. § 924(c)(2). one year. 18 U.S.C. § 3559(a)(1)-(5). Thus "any felony punishable under the [CSA]" Consequently, if the is an "aggravated felony." [569 U.S. 213] Where an alien has a prior federal conviction, it is a straightforward matter to determine proof of the relevant conduct would support a whether the conviction was for a "felony conviction under the CSA for which the punishable under the [CSA]." But 8 U.S.C. § maximum term of imprisonment is more than 1101(a)(43) introduces a complication. That one year, the state conviction qualifies as a provision conviction for an "aggravated felony."

[569 U.S. 212] II states that the statutory definition of This brings us to the central question "aggravated felony" " applies to an offense presented in this case: how to determine and described in this paragraph whether in evaluate the conduct that constitutes the state violation of Federal or State law ." "offense." One possibility is that actual (Emphasis added.) As noted, the statutory conduct is irrelevant, and that only the definition of "aggravated felony" includes a elements of the state crime for which the alien "felony punishable under the [CSA]," and was convicted matter. We have called this the therefore "categorical approach," Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 [133 S.Ct. 1697] L.Ed.2d 607 (1990), and we have generally used this approach in determining whether a § 1101(a)(43)(B) makes it necessary to state conviction falls within a federal determine what is meant by a state "offense" definition of a crime, see id., at 600–601, 110 that is a "felony punishable under the [CSA]." S.Ct. 2143 (" Section 924(e)(2)(B)(i) defines 'violent felony' as any crime punishable by What § 1101(a)(43) obviously contemplates is imprisonment for more than a year that 'has that the BIA or a court will identify conduct as an element'—not any crime that, in a associated with the state offense and then particular case, involves—the use or threat of determine whether that conduct would have force. Read in this context, the phrase 'is supported a qualifying conviction under the burglary' in § 924(e)(2)(B)(ii) most likely federal CSA.2 Identifying and evaluating this refers to the elements of the statute of relevant conduct is the question that conviction, not to the facts of each confounds the Court's analysis. Before defendant's conduct"). But, as will be discussed below, we have also departed in Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

important ways from a pure categorical Supp. V). Reading this provision together approach. with § 841(a), the Court proceeds as if the CSA created a two-tiered possession-with- The Court's opinion in this case conveys the intent-to-distribute offense: a base offense impression that its analysis is based on the that is punishable as a misdemeanor and a categorical approach, but that is simply not second-tier offense (possession with intent to so. On the contrary, a pure categorical distribute more than a "small amount" of approach leads very quickly to the conclusion marijuana or possession with intent to that petitioner's Georgia conviction was a distribute for remuneration) that is conviction for an "aggravated felony." punishable as a felony.

The elements of the Georgia offense were as If the CSA actually created such a two-tiered follows: knowledge, possession of offense, the pure categorical approach would lead to the conclusion that petitioner's [133 S.Ct. 1698] Georgia conviction was not for an "aggravated felony." The elements of the Georgia offense marijuana, and the intent to distribute it. would not suffice to prove the second-tier Ga.Code Ann. § 16–13–30(j)(1) (2007); offense, which would require proof that Jackson v. State, 295 Ga.App. 427, 435, n. 28, petitioner possessed more than a "small 671 S.E.2d 902, 909, n. 28 (2009). Proof of amount" of marijuana or that he intended to those elements would be sufficient to support obtain remuneration for its distribution. a conviction under 21 U.S.C. § 841(a), and the Instead, proof of the elements of the Georgia maximum crime would merely establish a violation of the base offense, which would be a [569 U.S. 214] misdemeanor. punishment for that offense is imprisonment The CSA, however, does not contain any such for up to five years, § 841(b)(1)(D) (2006 ed., two-tiered provision. And § 841(b)(4) does Supp. V), more than enough to qualify for not alter the elements of the felony treatment. Thus, under a pure categorical approach, petitioner's Georgia [569 U.S. 215] conviction would qualify as a conviction for an "aggravated felony" and would render him § 841(a) offense. As the Court notes, every ineligible for cancellation of removal. Court of Appeals to consider the question has held that § 841(a) is the default offense and The Court departs from this analysis because that § 841(b)(4) is only a mitigating § 841(b)(4) provides a means by which a sentencing guideline, see United States v. defendant convicted of violating § 841(a) Outen, 286 F.3d 622, 636–639 (C.A.2 2002) (2006 ed.) may lower the maximum term of (Sotomayor, J.) (describing § 841(b)(4) as a " imprisonment to no more than one year. That mitigating exception"); United States v. provision states that "any person who violates Hamlin, 319 F.3d 666, 670 (C.A.4 2003) [ § 841(a) ] by distributing a small amount of (collecting cases), and the Court does not marihuana for no remuneration shall be disagree, ante, at 1687 – 1689. treated as" a defendant convicted of simple possession, and a defendant convicted of that Confirmation of this interpretation is lesser offense faces a maximum punishment provided by the use of the term "small of one year's imprisonment (provided that the amount" in § 841(b)(4). If § 841(b)(4) had defendant does not have a prior simple been meant to alter the elements of § 841(a), possession conviction), § 844 (2006 ed., Congress surely would not have used such a Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

vague term. Due process requires that the that Carachuri–Rosendo was ineligible for elements of a criminal statute be defined with cancellation of removal, the Government specificity. Connally v. General Constr. Co., maintained that his second simple possession 269 U.S. 385, 393, 46 S.Ct. 126, 70 L.Ed. 322 conviction qualified under the INA as a (1926). Accordingly, it is apparent that § conviction for an " aggravated felony." Id ., at 841(b)(4) does not modify the elements of § ––––, 130 S.Ct., at 2582–2583. This was so, 841(a) but instead constitutes what is in the Government contended, because, if essence a mandatory sentencing guideline. Carachuri–Rosendo's second simple- Under this provision, if a defendant is possession prosecution had been held in convicted of violating § 841(a), the defendant federal court, he could have been punished by may attempt to prove that he possessed only a a sentence of up to two years due to his prior "small amount" of marijuana and that he did simple possession conviction. Id ., at ––––, not intend to obtain remuneration for its 130 S.Ct., at 2582–2583. distribution. If the defendant succeeds in convincing the sentencing judge, the This more severe sentence, however, would maximum term of imprisonment is lowered have required the federal prosecutor to file a to one year. formal charge alleging the prior conviction; Carachuri–Rosendo would have been given [133 S.Ct. 1699] the opportunity to defend against that charge; and the heightened sentence could not have In sum, contrary to the impression that the been imposed unless the court found that the Court's opinion seeks to convey, the Court's prior conviction had occurred. Id ., at ––––, analysis does not follow the pure categorical 130 S.Ct., at 2587–2588. approach. Our rejection of the Government's argument III thus represented a straightforward application of the pure categorical approach. Nor is the Court's analysis supported by prior The elements of the Texas offense for which case law. The Court claims that its approach Carachuri–Rosendo was convicted were follows from our decision in Carachuri– knowledge or intent, possession of a Rosendo v. Holder, 560 U.S. ––––, 130 S.Ct. controlled substance without a prescription, 2577, 177 L.Ed.2d 68 (2010), but that case— and nothing more. Id., at ––––, 130 S.Ct., at unlike the Court's opinion—faithfully applied 2583; Tex. Health & Safety Code Ann. § the pure categorical approach. 481.117(a), (b) (West 2010). Proof of a prior simple possession conviction was not In Carachuri–Rosendo, the alien had been required, and no such proof appears to have convicted in a Texas court for simple been offered. The maximum penalty that possession of a controlled substance. Id ., at – could have been imposed under federal law –––, 130 S.Ct., at 2583. At the time of that for simple possession (without proof of a conviction, Carachuri–Rosendo had a prior prior simple possession conviction) was one state conviction for simple year's imprisonment. Thus, proof in federal court of the elements of the Texas offense [569 U.S. 216] would not have permitted a felony-length sentence, and consequently the state possession, but this fact was not charged or conviction did not qualify as a felony proved at his trial and was apparently not punishable under the CSA. taken into account in setting his sentence, which was 10 days in jail. Id ., at ––––, –––– IV – ––––, 130 S.Ct., at 2582–2583. Arguing Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

[569 U.S. 217] In addition, the Court's approach leads to the strange and disruptive results noted at the Unsupported by either the categorical beginning of this opinion. As an initial approach or our prior cases, the decision of matter, it leads to major drug trafficking the Court rests instead on the Court's belief— crimes in about half the States being excluded which I share—that the application of the from the category of "illicit trafficking in a pure categorical approach in this case would controlled substance." Moreover, it leads to lead to results that Congress surely did not significant disparities between equally intend. culpable defendants. We adopted the categorical approach to avoid disparities in Suppose that an alien who is found to possess our treatment of defendants convicted in two marijuana cigarettes is convicted in a different States for committing the same state court for possession with intent to criminal conduct. See Taylor, 495 U.S., at distribute based on evidence that he intended 590–591, 110 S.Ct. 2143 (rejecting the view to give one of the cigarettes to a friend. Under that state law determined the meaning of the pure categorical approach, this alien "burglary" because "[t]hat would mean that a would be regarded as having committed an person convicted of unlawful possession of a "aggravated felony." But this classification is firearm would, or would not, receive a plainly out of step with the CSA's assessment sentence enhancement based on exactly the of the severity of the alien's crime because same conduct, depending on whether the under the CSA State of his prior conviction happened to call that conduct 'burglary' "). Yet the Court [133 S.Ct. 1700] reintroduces significant disparity into our treatment of drug offenders. All of this can be the alien could obtain treatment as a avoided by candidly acknowledging that the misdemeanant by taking advantage of 21 categorical approach is not the be-all and U.S.C. § 841(b)(4). end-all.

For this reason, I agree with the Court that When Congress wishes to make federal law such an alien should not be treated as having dependent on certain prior state convictions, committed an "aggravated felony." In order to it faces a difficult task. The INA provisions avoid this result, however, it is necessary to discussed above confront this problem, and depart from the categorical approach, and their clear objective is to identify categories of that is what the Court has done. But the criminal conduct that evidence such a high particular way in which the Court has degree of societal danger that an alien found departed has little to recommend it. to have engaged in such conduct should not be allowed to obtain permission to remain in To begin, the Court's approach is analytically this country. Since the vast majority of crimes confused. As already discussed, the Court are prosecuted in the state courts, Congress treats § 841(b)(4) as if it modified the naturally looked to state, as well as federal, elements of § 841(a), when in fact § 841(b)(4) convictions as a metric for identifying these does no such thing. And the Court obviously dangerous aliens. knows this because it does not suggest that § 841(b)(4) changes the elements of § 841(a) for [569 U.S. 219] criminal law purposes.3 But state criminal codes vary widely, and [569 U.S. 218] some state crimes are defined so broadly that they encompass both very serious and much Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

less serious cases. In cases involving such Consistent with the flexibility that the Court state provisions, a has already recognized, I would hold that the categorical approach is not controlling where [133 S.Ct. 1701] the state conviction at issue was based on a state statute that encompasses both a pure categorical approach may frustrate substantial number of cases that qualify Congress' objective. under the federal standard and a substantial number that do not. In such situations, it is The Court has said that the categorical appropriate to look beyond the elements of approach finds support in the term the state offense and to rely as well on facts "conviction." Taylor, supra, at 600, 110 S.Ct. that were admitted in state court or that, 2143; Shepard v. United States, 544 U.S. 13, taking a realistic view, were clearly proved. 19, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). Such a look beyond the elements is But the Court has never held that a pure particularly appropriate in a case like this, categorical approach is dictated by the use of which involves a civil proceeding before an 4 that term, and I do not think that it is. In expert agency that regularly undertakes ordinary speech, when it is said that a person factual inquiries far more daunting than any was convicted of or for doing something, the that would be involved here. See, e.g., "something" may include facts that go beyond Negusie v. Holder, 555 U.S. 511, 129 S.Ct. the bare elements of the relevant criminal 1159, 173 L.Ed.2d 20 (2009). offense. For example, it might be said that an art thief was convicted of or for stealing a Applying this approach in the present case, Rembrandt oil painting even though neither what we find is that the Georgia statute under the identity of the artist nor the medium used which petitioner was convicted broadly in the painting are elements of the standard encompasses both relatively minor offenses offense of larceny. See 3 W. LaFave, (possession of a small amount of marijuana Substantive Criminal Law § 19.1(a) (2d with the intent to share) and serious crimes ed.2003). (possession with intent to distribute large amounts of marijuana in exchange for For these reasons, departures from the millions of dollars of profit). We also find that categorical approach are warranted, and this petitioner had the opportunity before the BIA Court has already sanctioned such departures to show that his criminal conduct fell into the in several circumstances. See Taylor, supra, category of relatively minor offenses carved at 602, 110 S.Ct. 2143 (modified categorical out by § 841(b)(4). Administrative Record approach); Gonzales v. Duenas–Alvarez, 549 16–26. The BIA takes the entirely sensible U.S. 183, 193, 127 S.Ct. 815, 166 L.Ed.2d 683 view that an alien who is convicted for (2007) (categorical approach does not possession with intent to distribute may show exclude state-law convictions unless there is that his conviction was not for an "aggravated "a realistic probability, not a theoretical felony" by proving that his conduct fell within possibility, that the State would apply its § 841(b)(4). statute to conduct that falls outside the generic definition of a crime"); Nijhawan v. [133 S.Ct. 1702] Holder, 557 U.S. 29, 32, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009) (interpreting an Matter of Castro Rodriguez, 25 I. & N. Dec. enumerated "aggravated felony" in 8 U.S.C. § 698, 701–702 (2012). Petitioner, for whatever 1101(a)(43) not to be a generic crime). reason, availed himself only of the opportunity to show that his conviction had [569 U.S. 220] involved a small amount of marijuana and did not present evidence—or even contend—that Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

his offense had not involved remuneration. cancellation of removal, which also requires Administrative Record 16–26, 37. As a result, determining whether the noncitizen has been I think we have no alternative but to affirm "convicted of any aggravated felony." 8 U.S.C. the decision of the Court of Appeals, which in § 1229b(a)(3) (emphasis added). Our analysis turn affirmed the BIA. is the same in both contexts.

------5 In full, 21 U.S.C. § 841(a)(1) provides,

Notes: "Except as authorized by this subchapter, it shall be unlawful 1 In addition to asylum, a noncitizen who for any person knowingly or fears persecution may seek withholding of intentionally— removal, 8 U.S.C. § 1231(b)(3)(A), and deferral of removal under the Convention "(1) to manufacture, distribute, Against Torture and Other Cruel, Inhuman or or dispense, or possess with Degrading Treatment or Punishment (CAT), intent to manufacture, Art. 3, Dec. 10, 1984, S. Treaty Doc. No. 100– distribute, or dispense, a 20, p. 20, 1465 U.N.T.S. 85; 8 CFR § controlled substance...." 1208.17(a) (2012). These forms of relief require the noncitizen to show a greater 6 In pertinent part, § 841(b)(1)(D) and (b)(4) likelihood of persecution or torture at home (2006 ed. and Supp. V) provide, than is necessary for asylum, but the Attorney "Except as otherwise provided in section 849, General has no discretion to deny relief to a 859, 860, or 861 of this title, any person who noncitizen who establishes his eligibility. A violates subsection (a) of this section shall be conviction of an aggravated felony has no sentenced as follows: effect on CAT eligibility, but will render a noncitizen ineligible for withholding of . . . . . removal if he "has been sentenced to an aggregate term of imprisonment of at least 5 "[ (1) ](D) In the case of less than 50 years" for any aggravated felonies. 8 U.S.C. § kilograms of marihuana, except in the case of 1231(b)(3)(B). 50 or more marihuana plants regardless of weight, 10 kilograms of hashish, or one 2 The parties agree that this resolution of kilogram of hashish oil, such person shall, Moncrieffe's Georgia case is nevertheless a except as provided in paragraphs (4) and (5) "conviction" as the INA defines that term, 8 of this subsection, be sentenced to a term of U.S.C. § 1101(a)(48)(A). See Brief for imprisonment of not more than 5 years, a fine Petitioner 6, n. 2; Brief for Respondent 5, n. not to exceed the greater of that authorized in 2. accordance with the provisions of title 18 or $250,000 if the defendant is an individual or 3 Compare 662 F.3d 387 (C.A.5 2011) (case $1,000,000 if the defendant is other than an below), Garcia v. Holder, 638 F.3d 511 (C.A.6 individual, or both.... 2011) (is an aggravated felony), and Julce v. Mukasey, 530 F.3d 30 (C.A.1 2008) (same), . . . . . with Martinez v. Mukasey, 551 F.3d 113 (C.A.2 2008) (is not an aggravated felony), "(4) Notwithstanding paragraph (1)(D) of this and Wilson v. Ashcroft, 350 F.3d 377 (C.A.3 subsection, any person who violates 2003) (same). subsection (a) of this section by distributing a small amount of marihuana for no 4 Carachuri–Rosendo construed a different remuneration shall be treated as provided in provision of the INA that concerns Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

section 844 of this title and section 3607 of 9 The Government also cites 21 U.S.C. § title 18." 885(a)(1), which provides that the Government need not "negative any 7 Although paragraph (4) speaks only of exemption or exception set forth" in the CSA, "distributing" marijuana, the parties agree and instead "the burden of going forward that it also applies to "the more inchoate with the evidence with respect to any such offense of possession with intent to distribute exemption or exception shall be upon the that drug." Matter of Castro Rodriguez, 25 I. person claiming its benefit." Brief for & N. Dec. 698, 699, n. 2 (BIA 2012) ; see Brief Respondent 21. Even assuming § 841(b)(4) is for Petitioner 6, n. 2; Brief for Respondent 8, such an "exception," § 885(a)(1) applies, by n. 5. its own terms, only to "any trial, hearing, or other proceeding under" the CSA itself, not to The CSA does not define "small amount." The the rather different proceedings under the BIA has suggested that 30 grams "serve[s] as INA. a useful guidepost," Castro Rodriguez, 25 I. & N. Dec., at 703, noting that the INA exempts 10 In addition to New York, it appears that 13 from deportable controlled substances other States have separate offenses for § offenses "a single offense involving possession 841(b)(4) conduct. See Cal. Health & Safety for one's own use of 30 grams or less of Code Ann. § 11360(b) (West Supp.2013); marijuana," 8 U.S.C. § 1227(a)(2)(B)(i). The Colo.Rev.Stat. Ann. § 18–18–406(5) (2012) ; meaning of "small amount" is not at issue in Fla. Stat. § 893.13(2)(b)(3) (2010) ; Ill. Comp. this case, so we need not, and do not, define Stat., ch. 20, §§ 550/3, 550/4, 550/6 (West the term. 2010); Iowa Code § 124.410 (2009); Minn.Stat. § 152.027(4)(a) (2010) ; N.M. Stat. 8 Justice ALITO states that the statute Ann. § 30–31–22(E) (Supp.2011); Ohio "obviously" requires examination of whether Rev.Code Ann. § 2925.03(C)(3)(h) ( Lexis "conduct associated with the state offense ... 2012 Cum.Supp.); Ore.Rev.Stat. § 475.860(3) would have supported a qualifying conviction (2011); Pa. Stat. Ann., Tit. 35, § 780– under the federal CSA." Post, at 1697 113(a)(31) (Purdon Supp.2012); S.D. Codified (dissenting opinion) (emphasis added); see Laws § 22–42–7 (Supp.2012); Tex. Health & also post, at 1699. But this echoes the Fifth Safety Code Ann. § 481.120(b)(1) (West Circuit's approach in Carachuri–Rosendo . As 2010); W. Va.Code Ann. § 60A–4–402(c) noted in the text, our opinion explicitly (Lexis 2010). rejected such reasoning based on conditional perfect formulations. See also, e.g., 11 Similarly, Justice ALITO's dissent suggests Carachuri–Rosendo, 560 U.S., at ––––, 130 that he disagrees with the first premises of the S.Ct., at 2588–2589 (criticizing approach that categorical approach. He says it is a "strange "focuses on facts known to the immigration and disruptive resul[t]" that "defendants court that could have but did not serve as the convicted in different States for committing basis for the state conviction and the same criminal conduct" might suffer punishment" (emphasis altered)). Instead, as different collateral consequences depending we have explained, supra, at 1687 – 1688, our upon how those States define their statutes of holding depended upon the fact that conviction. Post, at 9. Yet that is the Carachuri–Rosendo's conviction did not longstanding, natural result of the categorical establish the fact necessary to distinguish approach, which focuses not on the criminal between misdemeanor and felony conduct a defendant "commit[s]," but rather punishment under the CSA. The same is true what facts are necessarily established by a here. conviction for the state offense. Different state offenses will necessarily establish Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

different facts. Some will track the "uniform" 1 "Alien" is the term used in the relevant federal definition of the generic offense, and provisions of the Immigration and Nationality some will not. Taylor v. United States, 495 Act, and this term does not encompass all U.S. 575, 590, 110 S.Ct. 2143, 109 L.Ed.2d 607 noncitizens. Compare 8 U.S.C. § 1101(a)(3) (1990). Whatever disparity this may create as (defining "alien" to include "any person not a between defendants whose real-world citizen or national of the United States") with conduct was the same, it ensures that all § 1101(a)(22) (defining "national of the defendants whose convictions establish the United States"). See also Miller v. Albright, same facts will be treated consistently, and 523 U.S. 420, 467, n. 2, 118 S.Ct. 1428, 140 thus predictably, under federal law. This was L.Ed.2d 575 (1998) (GINSBURG, J., Taylor 's chief concern in adopting the dissenting). categorical approach. See id., at 599–602, 110 2 S.Ct. 2143. The Court's disagreement with this proposition, ante at 1688, n. 8, is difficult to 1 Section 16–13–31(c) (Supp.2012) increases understand. If, as 8 U.S.C. § 1101(a)(43) quite the punishment for trafficking in marijuana, plainly suggests and the Court has held, a while § 16–13–2(b) (2011) decreases the state conviction can qualify as an "aggravated punishment for simple possession of 1 ounce felony," we must determine what is meant by or less of marijuana. Neither provision is a state "offense" that is a "felony punishable applicable to Moncrieffe's offense of under the [CSA]." There is no way to do this possession of marijuana with intent to other than by identifying a set of relevant distribute. conduct and asking whether, based on that conduct, the alien could have been convicted The Court correctly points out that of a felony if prosecuted under the CSA in Moncrieffe was sentenced pursuant to § 16– federal court. In rejecting what it referred to 13–2(a) because he was a first-time offender. as a "hypothetical approach," the Carachuri– Ante, at 1683. That provision does not alter Rosendo Court was addressing an entirely the felony status of the offense. Rather, it different question, specifically, which set of gives courts discretion to impose probation conduct is relevant. Carachuri–Rosendo v. instead of imprisonment and to do so without Holder, 560 U.S. ––––, –––– – ––––, 130 entering a conviction. As the majority S.Ct. 2577, 2584, 2588–2589, 177 L.Ed.2d 68 recognizes, petitioner has waived any (2010). We held that the relevant set of argument that he was not convicted for conduct consisted of that which was in fact purposes of the Immigration and Nationality charged and proved in the state-court Act. Ante, at 1683, n. 2. proceeding, not the set of conduct that could have been proved in a hypothetical federal 2 See 8 U.S.C. § 1227(a)(2)(A)(iii) (providing proceeding. that aliens convicted of an "aggravated felony" after admission are deportable); § 3 The Court defends its interpretation of 21 1229b(a)(3) (providing that aliens convicted U.S.C. § 841(a), (b)(4) by arguing that of an "aggravated felony" are ineligible for Carachuri–Rosendo v. Holder, 560 U.S. ––– cancellation of removal); § 1101(a)(43)(B) –, 130 S.Ct. 2577, 177 L.Ed.2d 68 (2010), (defining "aggravated felony" as "illicit rejected any recourse to a "hypothetical trafficking in a controlled substance ... approach" for determining how a criminal including a drug trafficking crime (as defined prosecution likely would have proceeded, see in [18 U.S.C. § 924(c) ] )"); 18 U.S.C. § ante, at 1688, and that is true enough. But, as 924(c)(2) (defining "drug trafficking crime" discussed above, see n. 2, supra, just because as "any felony punishable under the [CSA]"). the categorical approach does not require conjecture as to whether a hypothetical Moncrieffe v. Holder, 133 S. Ct. 1678, 185 L. Ed. 2d 727, 569 U. S. 184 (2013)

federal prosecutor would be likely to charge and prove a prior conviction does not mean that it also precludes analysis of the structure of the federal criminal statute at hand. Indeed, our categorical-approach cases have done little else. See, e.g., Carachuri– Rosendo, supra, at ––––, 130 S.Ct., at 2587– 2588 (discussing procedural protections Carachuri–Rosendo would have enjoyed had he been prosecuted federally); Gonzales v. Duenas–Alvarez, 549 U.S. 183, 185, 189–194, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (the term "theft offense" in 8 U.S.C. § 1101(a)(43)(G) includes the crime of aiding and abetting a theft offense).

4 Instead, the Court adopted the categorical approach based on a combination of factors, including judicial efficiency. See Taylor, 495 U.S., at 601, 110 S.Ct. 2143 ("[T]he practical difficulties and potential unfairness of a factual approach are daunting. In all cases where the Government alleges that the defendant's actual conduct would fit the generic definition of burglary, the trial court would have to determine what that conduct was").

------Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

136 S.Ct. 2243 the offense as commonly understood. For 195 L.Ed.2d 604 more than 25 years, our decisions have held that the prior crime qualifies as an ACCA Richard MATHIS, Petitioner predicate if, but only if, its elements are the v. same as, or narrower than, those of the UNITED STATES. generic offense. The question in this case is

No. 15–6092. [136 S.Ct. 2248]

Supreme Court of the United States whether ACCA makes an exception to that rule when a defendant is convicted under a Argued April 26, 2016. statute that lists multiple, alternative means Decided June 23, 2016. of satisfying one (or more) of its elements. We decline to find such an exception. Mark C. Fleming, Boston, MA, for Petitioner. I Nicole A. Saharsky, Washington, DC, for Respondent. A

James Whalen, Federal Public Defender's ACCA prescribes a 15–year mandatory Office, Des Moines, David M. Lehn, Joshua minimum sentence if a defendant is convicted M. Koppel, Wilmer Cutler Pickering Hale and of being a felon in possession of a firearm Dorr LLP, Washington, DC, Mark C. Fleming, following three prior convictions for a "violent Eric F. Fletcher, Wilmer Cutler Pickering felony." § 924(e)(1). (Absent that sentence Hale and Dorr LLP, Boston, MA, Alan E. enhancement, the felon-in-possession statute Schoenfeld, Wilmer Cutler Pickering Hale sets a 10–year maximum penalty. See § and Dorr LLP, New York, NY, for Petitioner. 924(a)(2).) ACCA defines the term "violent felony" to include any felony, whether state or Donald B. Verrilli, Jr., Solicitor General, federal, that "is burglary, arson, or extortion." Leslie R. Caldwell, Assistant Attorney § 924(e)(2)(B)(ii). In listing those crimes, we General, Michael R. Dreeben, Deputy have held, Congress referred only to their Solicitor General, Nicole A. Saharsky, usual or (in our terminology) generic Assistant to the Solicitor General, John M. versions—not to all variants of the offenses. Pellettieri, Attorney, Department of Justice, See Taylor v. United States, 495 U.S. 575, Washington, DC, for Respondent. 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). That means as to burglary—the offense Justice KAGAN delivered the opinion of the relevant in this case—that Congress meant a Court. crime "contain[ing] the following elements: an unlawful or unprivileged entry into ... a The Armed Career Criminal Act (ACCA or building or other structure, with intent to Act), 18 U.S.C. § 924(e), imposes a 15–year commit a crime." Ibid. mandatory minimum sentence on certain federal defendants who have three prior To determine whether a prior conviction is for convictions for a "violent felony," including generic burglary (or other listed crime) courts "burglary, arson, or extortion." To determine apply what is known as the categorical whether a past conviction is for one of those approach: They focus solely on whether the offenses, courts compare the elements of the elements of the crime of conviction crime of conviction with the elements of the sufficiently match the elements of generic "generic" version of the listed offense—i.e., burglary, while ignoring the particular facts of Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

the case. See id., at 600–601, 110 S.Ct. 2143. steal, and thus encompassed mere Distinguishing between elements and facts is shoplifting. See therefore central to ACCA's operation. "Elements" are the "constituent parts" of a [136 S.Ct. 2249] crime's legal definition—the things the "prosecution must prove to sustain a id., at 591, 110 S.Ct. 2143 ; Descamps v. conviction." Black's Law Dictionary 634 (10th United States, 570 U.S. ––––, –––– – ––––, ed. 2014). At a trial, they are what the jury 133 S.Ct. 2276, 2283–2284, 186 L.Ed.2d 438 must find beyond a reasonable doubt to (2013). Accordingly, no conviction under that convict the defendant, see Richardson v. law could count as an ACCA predicate, even if United States, 526 U.S. 813, 817, 119 S.Ct. the defendant in fact made an illegal entry 1707, 143 L.Ed.2d 985 (1999) ; and at a plea and so committed burglary in its generic hearing, they are what the defendant form. See id., at –––– – ––––, 133 S.Ct., at necessarily admits when he pleads guilty, see 2292–2293. McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Some statutes, however, have a more Facts, by contrast, are mere real-world complicated (sometimes called "divisible") things—extraneous to the crime's legal structure, making the comparison of elements requirements. (We have sometimes called harder. Id., at ––––, 133 S.Ct., at 2283. A them "brute facts" when distinguishing them single statute may list elements in the from elements. Richardson, 526 U.S., at 817, alternative, and thereby define multiple 119 S.Ct. 1707.) They are "circumstance[s]" or crimes. Suppose, for example, that the "event[s]" having no "legal effect [or] California law noted above had prohibited consequence": In particular, they need "the lawful entry or the unlawful entry" of a neither be found by a jury nor admitted by a premises with intent to steal, so as to create defendant. Black's Law Dictionary 709. And two different offenses, one more serious than ACCA, as we have always understood it, cares the other. If the defendant were convicted of not a whit about them. See, e.g., Taylor, 495 the offense with unlawful entry as an element, U.S., at 599–602, 110 S.Ct. 2143. A crime then his crime of conviction would match counts as "burglary" under the Act if its generic burglary and count as an ACCA elements are the same as, or narrower than, predicate; but, conversely, the conviction those of the generic offense. But if the crime would not qualify if it were for the offense of conviction covers any more conduct than with lawful entry as an element. A sentencing the generic offense, then it is not an ACCA court thus requires a way of figuring out "burglary"—even if the defendant's actual which of the alternative elements listed— conduct (i.e., the facts of the crime) fits within lawful entry or unlawful entry—was integral the generic offense's boundaries. to the defendant's conviction (that is, which was necessarily found or admitted). See id., at The comparison of elements that the ––––, 133 S.Ct., at 2283. To address that categorical approach requires is need, this Court approved the "modified straightforward when a statute sets out a categorical approach" for use with statutes single (or "indivisible") set of elements to having multiple alternative elements. See, define a single crime. The court then lines up e.g., Shepard v. United States, 544 U.S. 13, that crime's elements alongside those of the 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). generic offense and sees if they match. So, for Under that approach, a sentencing court example, this Court found that a California looks to a limited class of documents (for statute swept more broadly than generic example, the indictment, jury instructions, or burglary because it criminalized entering a plea agreement and colloquy) to determine location (even if lawfully) with the intent to what crime, with what elements, a defendant Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

was convicted of. See ibid. ; Taylor, 495 U.S., The issue before us is whether ACCA treats at 602, 110 S.Ct. 2143. The court can then this kind of statute as it does all others, compare that crime, as the categorical imposing a sentence enhancement only if the approach commands, with the relevant state crime's elements correspond to those of generic offense. a generic offense—or instead whether the Act makes an exception for such a law, so that a This case concerns a different kind of sentence can be enhanced when one of the alternatively phrased law: not one that lists statute's specified means creates a match with multiple elements disjunctively, but instead the generic offense, even though the broader one that enumerates various factual means of element would not. committing a single element. See generally Schad v. Arizona, 501 U.S. 624, 636, 111 S.Ct. B 2491, 115 L.Ed.2d 555 (1991) (plurality opinion) ("[L]egislatures frequently Petitioner Richard Mathis pleaded guilty to enumerate alternative means of committing a being a felon in possession of a firearm. See § crime without intending to define separate 922(g). At sentencing, the Government asked elements or separate crimes"). To use a the District Court to impose ACCA's 15–year hypothetical adapted from two of our prior minimum penalty based on Mathis's five prior decisions, suppose a statute requires use of a convictions for burglary under Iowa law. "deadly weapon" as an element of a crime and further provides that the use of a "knife, gun, Iowa's burglary statute, all parties agree, bat, or similar weapon" would all qualify. See covers more conduct than generic burglary Descamps, 570 U.S., at ––––, 133 S.Ct., at does. See Brief for Petitioner 36; Brief for 2289 ; Richardson, 526 U.S., at 817, 119 S.Ct. United States 44. The generic offense requires 1707. Because that kind of list merely unlawful entry into a "building or other specifies diverse means of satisfying a single structure." Taylor, 495 U.S., at 598, 110 S.Ct. element of a single crime—or otherwise said, 2143 ; supra, at 2248. Iowa's statute, by spells out various factual ways of committing contrast, reaches a broader range of places: some component of the offense—a jury need "any building, structure, [or] land, water, or not find (or a defendant admit) any particular air vehicle ." Iowa Code § 702.12 (2013) item: A jury could convict even if some jurors (emphasis added). And those listed locations "conclude[d] that the defendant used a knife" are not alternative elements, going toward the while others "conclude[d] he used a gun," so creation of separate crimes. To the contrary, long as all agreed that the defendant used a they lay out alternative ways of satisfying a "deadly weapon." Ibid. ; see Descamps, 570 single locational element, as the Iowa U.S., at ––––, 133 S.Ct., at 2288 (describing Supreme Court has held: Each of the terms means, for this reason, as "legally extraneous serves as an "alternative method of circumstances"). And similarly, to bring the committing [the] single crime" of burglary, so discussion back to burglary, a statute might— that a jury need not agree on which of the indeed, as soon discussed, Iowa's burglary locations was actually involved. State v. law does—itemize the various places that Duncan, 312 N.W.2d 519, 523 (Iowa 1981) ; crime could occur as disjunctive factual see State v. Rooney, 862 N.W.2d 367, 376 scenarios rather than separate elements, so (Iowa 2015) (discussing the single "broadly that a jury need not make any specific phrased ... element of place" in Iowa's findings (or a defendant admissions) on that burglary law). In short, the statute defines score. one crime, with one set of elements, broader than generic burglary—while specifying [136 S.Ct. 2250] multiple means of fulfilling its locational element, some but not all of which (i.e., Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

buildings and other structures, but not defendant's crime of conviction can count as a vehicles) satisfy the generic definition. predicate only if its elements match those of a generic offense—gives way when a statute The District Court imposed an ACCA happens to list various means by which a enhancement on Mathis after inspecting the defendant can satisfy an element.1 We records of his prior convictions and granted certiorari to resolve that division, 577 determining that he had burgled structures, U.S. ––––, 136 S.Ct. 894, 193 L.Ed.2d 788 rather than vehicles. See App. 34–35. The (2016), and now reverse. Court of Appeals for the Eighth Circuit affirmed. 786 F.3d 1068 (2015). It II acknowledged that Iowa's burglary statute, by covering vehicles in addition to structures, A swept more broadly than generic burglary. See id., at 1074. But it noted that if structures As just noted, the elements of Mathis's crime and vehicles were separate elements, each of conviction (Iowa burglary) cover a greater part of a different crime, then a sentencing swath of conduct than the elements of the court could invoke the modified categorical relevant ACCA offense (generic burglary). See approach and look to old record materials to supra, at 2249 – 2250. Under our precedents, see which of those crimes the defendant had that undisputed disparity resolves this case. been convicted of. See id., at 1072–1074. And We have often held, and in no uncertain the Court of Appeals thought nothing terms, that a state crime cannot qualify as an changed if structures and vehicles were not ACCA predicate if its elements are broader distinct elements but only alternative means: than those of a listed generic offense. See, "Whether [such locations] amount to e.g., Taylor, 495 U.S., at 602, 110 S.Ct. 2143. alternative elements or merely alternative How a given defendant actually perpetrated means to fulfilling an element," the Eighth the crime—what we have referred to as the Circuit held, a sentencing court "must apply "underlying brute facts or means" of the modified categorical approach" and commission, Richardson, 526 U.S., at 817, inspect the records of prior cases. Id., at 1075. 119 S.Ct. 1707 —makes no difference; even if If the court found from those materials that his conduct fits within the generic offense, the the defendant had in fact committed the mismatch of elements saves the defendant offense in a way that satisfied the definition of from an ACCA sentence. Those longstanding generic burglary—here, by burgling a principles, and the reasoning that underlies structure rather than a vehicle—then the them, apply regardless of whether a statute court should treat the conviction as an ACCA omits or instead specifies alternative possible predicate. And that was so, the Court of means of commission. The itemized Appeals stated, even though the elements of construction gives a sentencing court no the crime of conviction, in encompassing both special warrant to explore the facts of an types of locations, were broader than those of offense, rather than to determine the crime's the relevant generic offense. See id., at 1074– elements and compare them with the generic 1075. In this circumstance, the court definition.

[136 S.Ct. 2251] Taylor set out the essential rule governing ACCA cases more than a quarter century ago. thus found, ACCA's usual elements-based All that counts under the Act, we held then, inquiry would yield to a facts-based one. are "the elements of the statute of conviction." 495 U.S., at 601, 110 S.Ct. 2143. So, for That decision added to a Circuit split over example, the label a State assigns to a crime— whether ACCA's general rule—that a whether "burglary," "breaking and entering," Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

or something else entirely—has no relevance Our decisions have given three basic reasons to whether that offense is an ACCA predicate. for adhering to an elements-only inquiry. See id., at 590–592, 110 S.Ct. 2143. And more First, ACCA's text favors that approach. By to the point here: The same is true of "the enhancing the sentence of a defendant who particular facts underlying [the prior] has three "previous convictions" for generic convictions"—the means by which the burglary, § 924(e)(1) —rather than one who defendant, in real life, committed his crimes. has thrice committed that crime—Congress Id., at 600, 110 S.Ct. 2143. That rule can seem indicated that the sentencer should ask only counterintuitive: In some cases, a sentencing about whether "the defendant had been judge knows (or can easily discover) that the convicted of crimes falling within certain defendant carried out a "real" burglary, even categories," and not about what the defendant though the crime of conviction also extends to had actually done. Taylor, 495 U.S., at 600, other conduct. No matter. Under ACCA, 110 S.Ct. 2143. Congress well knows how to Taylor stated, it is impermissible for "a instruct sentencing judges to look into the particular crime [to] sometimes count facts of prior crimes: In other statutes, using towards enhancement and sometimes not, different language, it has done just that. See depending on the facts of the case." Id., at United States v. Hayes, 555 U.S. 415, 421, 129 601, 110 S.Ct. 2143. Accordingly, a sentencing S.Ct. 1079, 172 L.Ed.2d 816 (2009) judge may look only to "the elements of the (concluding that the phrase "an offense ... [offense], not to the facts of [the] defendant's committed" charged sentencers with conduct." Ibid . considering non-elemental facts); Nijhawan v. Holder, 557 U.S. 29, 36, 129 S.Ct. 2294, 174 That simple point became a mantra in our L.Ed.2d 22 (2009) (construing an subsequent ACCA decisions.2 At the immigration statute to "call[ ] for a ‘circumstance-specific,’ not a ‘categorical’ [136 S.Ct. 2252] interpretation"). But Congress chose another course in ACCA, focusing on only "the risk of repetition (perhaps downright elements of the statute of conviction." Taylor, tedium), here are some examples. In Shepard 495 U.S., at 601, 110 S.Ct. 2143. : ACCA "refers to predicate offenses in terms not of prior conduct but of prior ‘convictions' Second, a construction of ACCA allowing a and the ‘element[s]’ of crimes." 544 U.S., at sentencing judge to go any further would 19, 125 S.Ct. 1254 (alteration in original). In raise serious Sixth Amendment concerns. James v. United States : "[W]e have avoided This Court has held that only a jury, and not a any inquiry into the underlying facts of [the judge, may find facts that increase a defendant's] particular offense, and have maximum penalty, except for the simple fact looked solely to the elements of [burglary] as of a prior conviction. See Apprendi v. New defined by [state] law." 550 U.S. 192, 214, 127 Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, S.Ct. 1586, 167 L.Ed.2d 532 (2007). In Sykes 147 L.Ed.2d 435 (2000). That means a judge v. United States : "[W]e consider [only] the cannot go beyond identifying the crime of elements of the offense [,] without inquiring conviction to explore the manner in which the into the specific conduct of this particular defendant committed that offense. See offender." 564 U.S. 1, 7, 131 S.Ct. 2267, 180 Shepard, 544 U.S., at 25, 125 S.Ct. 1254 L.Ed.2d 60 (2011) (quoting James, 550 U.S., (plurality opinion); id., at 28, 125 S.Ct. 1254 at 202, 127 S.Ct. 1586 ; emphasis in original). (THOMAS, J., concurring in part and And most recently (and tersely) in Descamps concurring in judgment) (stating that such an : "The key [under ACCA] is elements, not approach would amount to "constitutional facts." 570 U.S., at ––––, 133 S.Ct., at 2283. error"). He is prohibited from conducting such an inquiry himself; and so too he is Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

barred from making a disputed determination finally, a statute's listing of disjunctive means about "what the defendant and state judge does nothing to mitigate the possible must have understood as the factual basis of unfairness of basing an increased penalty on the prior plea" or "what the jury in a prior something not legally necessary to a prior trial must have accepted as the theory of the conviction. Whatever the statute says, or crime." See id., at 25, 125 S.Ct. 1254 (plurality leaves out, about diverse ways of committing opinion); Descamps, 570 U.S., at ––––, 133 a crime makes no difference to the S.Ct., at 2288. He can do no more, consistent defendant's incentives (or lack thereof) to with the Sixth Amendment, than determine contest such matters. what crime, with what elements, the defendant was convicted of. For these reasons, the court below erred in applying the modified categorical approach to [136 S.Ct. 2253] determine the means by which Mathis committed his prior crimes. 786 F.3d, at And third, an elements-focus avoids 1075. ACCA, as just explained, treats such unfairness to defendants. Statements of "non- facts as irrelevant: Find them or not, by elemental fact" in the records of prior examining the record or anything else, a court convictions are prone to error precisely still may not use them to enhance a sentence. because their proof is unnecessary. Id., at –– And indeed, our cases involving the modified ––, 133 S.Ct., at 2288–2289. At trial, and still categorical approach have already made more at plea hearings, a defendant may have exactly that point. "[T]he only [use of that no incentive to contest what does not matter approach] we have ever allowed," we stated a under the law; to the contrary, he "may have few Terms ago, is to determine "which good reason not to"—or even be precluded element[s] played a part in the defendant's from doing so by the court. Ibid. When that is conviction." Descamps, 570 U.S., at ––––, –– true, a prosecutor's or judge's mistake as to ––, 133 S.Ct., at 2283, 2285 (emphasis means, reflected in the record, is likely to go added); see Taylor, 495 U.S., at 602, 110 S.Ct. uncorrected. See ibid.3 Such inaccuracies 2143 (noting that the modified approach may should not come back to haunt the defendant be employed only to determine whether "a many years down the road by triggering a jury necessarily had to find" each element of lengthy mandatory sentence. generic burglary). In other words, the modified approach serves—and serves Those three reasons stay as strong as ever solely—as a tool to identify the elements of when a statute, instead of merely laying out a the crime of conviction when a statute's crime's elements, lists alternative means of disjunctive phrasing renders one (or more) of fulfilling one (or more) of them. ACCA's use them opaque. See of the term "convictions" still supports an elements-based inquiry; indeed, that [136 S.Ct. 2254] language directly refutes an approach that would treat as consequential a statute's Descamps, 570 U.S., at ––––, 133 S.Ct., at reference to factual circumstances not 2285.4 It is not to be repurposed as a essential to any conviction. Similarly, the technique for discovering whether a Sixth Amendment problems associated with a defendant's prior conviction, even though for court's exploration of means rather than a too-broad crime, rested on facts (or elements do not abate in the face of a statute otherwise said, involved means) that also like Iowa's: Whether or not mentioned in a could have satisfied the elements of a generic statute's text, alternative factual scenarios offense. remain just that—and so remain off-limits to judges imposing ACCA enhancements. And B Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

The Government and Justice BREYER claim to convict a defendant (or what he necessarily that our longtime and exclusive focus on admitted). Descamps, 570 U.S., at ––––, ––– elements does not resolve this case because –, 133 S.Ct., at 2287, 2290. And elements (so they say) when we talked about alone fit that bill; a means, or (as we have "elements," we did not really mean it. "[T]he called it) "non-elemental fact," is "by Court used ‘elements,’ " the Government definition[ ] not necessary to support a informs us, "not to distinguish between conviction." Id., at ––––, n. 3, ––––, 133 ‘means' and ‘elements,’ " but instead to refer S.Ct., at 2286, n. 3, 2288 ; see supra, at to whatever the statute lists—whether means 2248.6 Accordingly, Descamps made clear or elements. Brief for United States 8; see id., that when the Court had earlier said (and said at 19. In a similar vein, Justice BREYER and said) "elements," it meant just that and posits that every time we said the word nothing else. "element," we "used the word generally, simply to refer to the matter at issue," without For that reason, this Court (including Justice "intend[ing] to set forth a generally applicable BREYER) recently made clear that a court rule." Post, at 2265 (dissenting opinion). may not look behind the elements of a generally drafted statute to identify the means But a good rule of thumb for reading our by which a defendant committed a crime. See decisions is that what they say and what they Descamps, 570 U.S., at ––––, 133 S.Ct., at mean are one and the same; and indeed, we 2282–2282. Consider if Iowa defined have previously insisted on that point with burglary as involving merely an unlawful reference to ACCA's elements-only approach. entry into a "premises"—without any further In Descamps, the sole dissenting Justice elaboration of the types of premises that exist made an argument identical to the one now in the world (e.g., a house, a building, a car, a advanced by the Government and Justice boat). Then, all agree, ACCA's elements-focus BREYER: that our prior caselaw had not would apply. No matter that the record of a intended to distinguish between statutes prior conviction clearly indicated that the listing alternative elements and those setting defendant burgled a house at 122 Maple out "merely alternative means" of Road—and that the jury found as much; commission. 570 U.S., at ––––, 133 S.Ct., at because Iowa's (hypothetical) law included an 2298 (opinion of ALITO, J.).5 The Court element broader than that of the generic rejected that contention, stating that "[a]ll offense, the defendant could not receive an those decisions rested on the explicit premise ACCA sentence. Were that not so, this Court that the laws contain[ed] statutory phrases stated, "the categorical approach [would be] that cover several different crimes, not several at an end"; the court would merely be asking different methods of committing one "whether a particular set of facts leading to a offense"—in other words, that they listed conviction conforms to a generic ACCA offense." Id., at ––––, 133 S.Ct., at 2291. That [136 S.Ct. 2255] conclusion is common ground, and must serve as the baseline for anything Justice alternative elements, not alternative means. BREYER (or the Government) here argues. Id., at ––––, n. 2, 133 S.Ct., at 2285, n. 2 (ellipsis and internal quotation marks And contrary to his view, that baseline not omitted); see, e.g., Johnson v. United States, only begins but also ends the analysis, 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d because nothing material changes if Iowa's 1 (2010) ; Nijhawan, 557 U.S., at 35, 129 S.Ct. law further notes (much as it does) that a 2294. That premise was important, we "premises" may include "a house, a building, explained, because an ACCA penalty may be a car, or a boat." That fortuity of legislative based only on what a jury "necessarily found" drafting affects neither the oddities Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

[136 S.Ct. 2256] This threshold inquiry—elements or means?—is easy in this case, as it will be in of applying the categorical approach nor the many others. Here, a state court decision reasons for doing so. On the one hand, a definitively answers the question: The listed categorical inquiry can produce the same premises in Iowa's burglary law, the State counter-intuitive consequences however a Supreme Court held, are "alternative state law is written. Whether or not the method[s]" of committing one offense, so that statute lists various means of satisfying the a jury need not agree whether the burgled "premises" element, the record of a prior location was a building, other structure, or conviction is just as likely to make plain that vehicle. See Duncan, 312 N.W.2d, at 523 ; the defendant burgled that house on Maple supra, at 2250. When a ruling of that kind Road and the jury knew it. On the other hand exists, a sentencing judge need only follow (and as already shown), the grounds— what it says. See Schad, 501 U.S., at 636, 111 constitutional, statutory, and equitable—that S.Ct. 2491 (plurality opinion). Likewise, the we have offered for nonetheless using the statute on its face may resolve the issue. If categorical approach lose none of their force statutory alternatives carry different in the switch from a generally phrased statute punishments, then under Apprendi they must (leaving means implicit) to a more particular be elements. See, e.g., Colo.Rev.Stat. § 18–4– one (expressly enumerating them). See supra, 203 (2015) ; Vt. Stat. Ann., Tit. 13, § 1201 at 2253. In every relevant sense, both (Cum. Supp. 2015); see also 530 U.S., at 490, functional and legal, the two statutes—one 120 S.Ct. 2348 (requiring a jury to agree on saying just "premises," the other listing any circumstance increasing a statutory structures and vehicles—are the same. And so penalty); supra, at 2252. Conversely, if a the same rule must apply: ACCA disregards statutory list is drafted to offer "illustrative the means by which the defendant committed examples," then it includes only a crime's his crime, and looks only to that offense's means of commission. United States v. elements. Howard, 742 F.3d 1334, 1348 (C.A.11 2014) ; see United States v. Cabrera–Umanzor, 728 C F.3d 347, 353 (C.A.4 2013). And a statute may itself identify which things must be charged The first task for a sentencing court faced (and so are elements) and which need not be with an alternatively phrased statute is thus (and so are means). See, e.g., Cal.Penal Code to determine whether its listed items are Ann. § 952 (West 2008). Armed with such elements or means. If they are elements, the authoritative sources of state law, federal court should do what we have previously sentencing courts can readily determine the approved: review the record materials to nature of an alternatively phrased list. discover which of the enumerated alternatives played a part in the defendant's prior And if state law fails to provide clear answers, conviction, and then compare that element federal judges have another place to look: the (along with all others) to those of the generic record of a prior conviction itself. As Judge crime. See ibid. But if instead they are means, Kozinski has explained, such a "peek at the the court has no call to decide which of the [record] documents" is for "the sole and statutory alternatives was at issue in the limited purpose of determining whether [the earlier prosecution. Given ACCA's listed items indifference to how a defendant actually committed a prior offense, the court may ask [136 S.Ct. 2257] only whether the elements of the state crime and generic offense make the requisite match. are] element[s] of the offense." Rendon v. Holder, 782 F.3d 466, 473–474 (C.A.9 2015) Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

(opinion dissenting from denial of reh'g en commission: Whether or not made explicit, banc).7 (Only if the answer is yes can the court they remain what they ever were—just the make further use of the materials, as facts, which ACCA (so we have held, over and previously described, see supra, at 2253 – over) does not care about. 2254.) Suppose, for example, that one count of an indictment and correlative jury Some have raised concerns about this line of instructions charge a defendant with burgling decisions, and suggested to Congress that it a "building, structure, or vehicle"—thus reconsider how ACCA is written. See, e.g., reiterating all the terms of Iowa's law. That is Chambers v. United States, 555 U.S. 122, 133, as clear an indication as any that each 129 S.Ct. 687, 172 L.Ed.2d 484 (2009) alternative is only a possible means of (ALITO, J., concurring in judgment); commission, not an element that the Descamps, 570 U.S., at ––––, 133 S.Ct., at prosecutor must prove to a jury beyond a 2293–2294 (KENNEDY, J., concurring). But reasonable doubt. So too if those documents whether for good or for ill, the elements- use a single umbrella term like "premises": based approach remains the law. And we will Once again, the record would then reveal not introduce inconsistency and arbitrariness what the prosecutor has to (and does not have into our ACCA decisions by here declining to to) demonstrate to prevail. See Descamps, follow its requirements. Everything this Court 570 U.S., at ––––, 133 S.Ct., at 2290. has ever said about ACCA runs counter to the Conversely, an indictment and jury Government's position. That alone is instructions could indicate, by referencing sufficient reason to reject it: Coherence has a one alternative term to the exclusion of all claim on the law. others, that the statute contains a list of elements, each one of which goes toward a Because the elements of Iowa's burglary law separate crime. Of course, such record are broader than those of generic burglary, materials will not in every case speak plainly, Mathis's convictions under that law cannot and if they do not, a sentencing judge will not give rise to an ACCA sentence. We be able to satisfy "Taylor 's demand for accordingly reverse the judgment of the Court certainty" when determining whether a of Appeals. defendant was convicted of a generic offense. Shepard, 544 U.S., at 21, 125 S.Ct. 1254. But It is so ordered. between those documents and state law, that [136 S.Ct. 2258] kind of indeterminacy should prove more the exception than the rule. Justice KENNEDY, concurring. III The Court's opinion is required by its precedents, and so I join it, with one Our precedents make this a straightforward reservation set forth below. case. For more than 25 years, we have repeatedly made clear that application of In no uncertain terms, the Court has held that ACCA involves, and involves only, comparing the word "burglary" in the Armed Career elements. Courts must ask whether the crime Criminal Act (ACCA) "refers to the elements of conviction is the same as, or narrower of the statute of conviction, not to the facts of than, the relevant generic offense. They may each defendant's conduct." Taylor v. United not ask whether the defendant's conduct—his States, 495 U.S. 575, 601, 110 S.Ct. 2143, 109 particular means of committing the crime— L.Ed.2d 607 (1990). An enhancement is falls within the generic definition. And that proper, the Court has said, if a defendant is rule does not change when a statute happens convicted of a crime "having the elements" of to list possible alternative means of Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

generic burglary, "regardless of its exact that each year proves more unworkable definition or label" under state law. Id., at should require this Court to revisit its 599, 110 S.Ct. 2143. See also Descamps v. precedents in an appropriate case. United States, 570 U.S. ––––, ––––, 133 S.Ct. 2276, 2285, 186 L.Ed.2d 438 (2013) Justice THOMAS, concurring. ("[T]he categorical approach's central feature [is] a focus on the elements, rather than the I join the Court's opinion, which faithfully facts, of a crime"). In the instant case, then, applies our precedents. The Court holds that the Court is correct to conclude that "an the modified categorical approach cannot be elements-based approach remains the law." used to determine the specific means by Ante. at 2255. And it is correct to note further which a defendant committed a crime. Ante, that it would "introduce inconsistency and at 2253 – 2254. By rightly refusing to apply arbitrariness into our ACCA decisions by here the modified categorical approach, the Court declining to follow its requirements," without avoids further extending its precedents that reconsidering our precedents as a whole. Ibid. limit a criminal defendant's right to a public trial before a jury of his peers. My one reservation to the Court's opinion concerns its reliance on Apprendi v. New In Almendarez–Torres v. United States, 523 Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 U.S. 224, 246–247, 118 S.Ct. 1219, 140 L.Ed.2d 435 (2000). Ante at 2252. In my L.Ed.2d 350 (1998), the Court held that the view, Apprendi was incorrect and, in any existence of a prior conviction triggering event, does not compel the elements based enhanced penalties for a recidivist was a fact approach. That approach is required only by that could be found by a judge, not an the Court's statutory precedents, which element of the crime that must be found by a Congress remains free to overturn. jury. Two years later, the Court held that "any fact that increases the penalty for a crime As both dissenting opinions point out, today's beyond the prescribed statutory maximum" is decision is a stark illustration of the arbitrary an element and inequitable results produced by applying an elements based approach to this [136 S.Ct. 2259] sentencing scheme. It could not have been Congress' intent for a career offender to of a crime and therefore "must be submitted escape his statutorily mandated punishment to a jury, and proved beyond a reasonable "when the record makes it clear beyond any doubt." Apprendi v. New Jersey, 530 U.S. possible doubt that [he] committed generic 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 burglary." Post, at 2270 (opinion of ALITO, (2000) ; see id., at 489–490, 120 S.Ct. 2348. J.). Congress also could not have intended But Apprendi recognized an exception for the vast sentencing disparities for defendants "fact of a prior conviction," instead of convicted of identical criminal conduct in overruling Almendarez–Torres. See 530 U.S., different jurisdictions. at 490, 120 S.Ct. 2348. I continue to believe that the exception in Apprendi was wrong, Congress is capable of amending the ACCA to and I have urged that Almendarez–Torres be resolve these concerns. See, e.g., Nijhawan v. reconsidered. See Descamps v. United States, Holder, 557 U.S. 29, 38, 129 S.Ct. 2294, 174 570 U.S. ––––, ––––, 133 S.Ct. 2276, 2294– L.Ed.2d 22 (2009) (interpreting the language 2295, 186 L.Ed.2d 438 (2013) (THOMAS, J., Congress used in 8 U.S.C. § 1101(a)(43)(M)(i) concurring in judgment). as requiring a "circumstance-specific" rather than categorical approach). But continued Consistent with this view, I continue to congressional inaction in the face of a system believe that depending on judge-found facts Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

in Armed Career Criminal Act (ACCA) cases firearm if that person also has three previous violates the Sixth Amendment and is convictions for (among several other things) irreconcilable with Apprendi . ACCA "burglary." 18 U.S.C. § 924(e)(2)(B)(ii). The improperly "allows the judge to ‘mak[e] a petitioner here has been convicted of being a finding that raises [a defendant's] sentence felon in possession, and he previously was beyond the sentence that could have lawfully convicted of three other crimes that qualify been imposed by reference to facts found by him for the federal mandatory minimum if, the jury or admitted by the defendant.’ " but only if, those previous convictions count Descamps, supra, at –––– – ––––, 133 S.Ct., as "burglary." To decide whether he has at 2294–2295 (opinion of THOMAS, J.) committed what the federal statute calls a (brackets in original; internal quotation "burglary," we must look to the state statute marks omitted). This Sixth Amendment that he violated. problem persists regardless of whether "a court is determining whether a prior The relevant state statute, an Iowa statute, conviction was entered, or attempting to says that a person commits a crime if he (1) discern what facts were necessary to a prior "enters an occupied structure," (2) "having no conviction." Id., at ––––, 133 S.Ct., at 2294 right ... to do so," (3) with "the intent to (citation omitted). commit a felony." Iowa Code § 713.1 (2013). It then goes on to define "occupied structure" as Today, the Court "at least limits the situations including any (1) "building," (2) "structure," in which courts make factual determinations (3) "land" vehicle, (4) "water" vehicle, or (5) about prior convictions." Ibid. As the Court "air vehicle, or similar place." § 702.12. The explains, the means of committing an offense problem arises because, as we have previously are nothing more than "various factual ways held, see Taylor v. United of committing some component of the offense." Ante, at 2249. Permitting judges to [136 S.Ct. 2260] determine the means of committing a prior offense would expand Almendarez–Torres . States, Therefore, I join the Court's opinion refusing to allow judges to determine, without a jury, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d which alternative means supported a 607 (1990), if the structure that an offender defendant's prior convictions. unlawfully entered (with intent to commit a felony) was a "building," the state crime that Justice BREYER, with whom Justice he committed counts under the federal GINSBURG joins, dissenting. statute as "burglary." But if the structure that the offender unlawfully entered was a land, The elements/means distinction that the water, or air vehicle, the state crime does not Court draws should not matter for sentencing count as a "burglary." Thus, a conviction for purposes. I fear that the majority's contrary violating the state statute may, or may not, view will unnecessarily complicate federal count as a "burglary," depending upon sentencing law, often preventing courts from whether the structure that he entered was, properly applying the sentencing statute that say, a "building" or a "water vehicle." Congress enacted. I consequently dissent. Here, if we look at the court documents I charging Mathis with a violation of the state statute, they tell us that he was charged with The federal statute before us imposes a entering, for example, a "house and garage." mandatory minimum sentence upon a person App. 60–73 (charging documents). They say convicted of being a felon in possession of a nothing about any other structure, say, a Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

"water vehicle." Thus, to convict him, the U.S. 13, 20–21, 125 S.Ct. 1254, 161 L.Ed.2d jury—which had to find that he unlawfully 205 (2005).) entered an "occupied structure"—must have found that he entered a "house and garage," So, again, what is the problem? The State's which concededly count as "building [s]." So "burglary statut[e] include[s] entry" of a why is that not the end of this matter? Why vehicle as well as a "building." Taylor, 495 does the federal statute not apply? U.S., at 602, 110 S.Ct. 2143. The conviction document might not specify what kind of a Just to be sure, let us look at how we structure the defendant entered (i.e., whether previously treated an almost identical a building or an automobile). But the federal instance. In Taylor, a state statute made sentencing judge can look at the charging criminal the "breaking and entering [of] a documents (or plea colloquy) to see whether building, booth, tent, boat, or railroad car." "the defendant was charged only with a 495 U.S., at 579, n. 1, 110 S.Ct. 2143. We burglary of a building." Ibid. And here that explained that breaking into a building would was so. In addition, since the charging amount to "burglary" under the federal documents show that the defendant was statute, but breaking into a railroad car would charged only with illegal entry of a not. But the conviction document itself said "building"—not a tent or a railroad car—the only that the offender had violated the jury, in order to find (as it did) that the statute; it did not say whether he broke into a defendant broke into an occupied structure, building or a railroad car. See id., at 598– would "necessarily [have] had to find an entry 602, 110 S.Ct. 2143. We said that in such a of a building." Ibid. Hence, "the Government case the federal sentencing judge could look should be allowed to use the conviction for at the charging papers and the jury enhancement." Ibid. instructions in the state case to try to determine what the state conviction was The majority, however, does not agree that actually for: building, tent, or railroad car. We the two cases I have described are almost wrote that identical. To the contrary, it notes correctly that our precedent often uses the word "in a State whose burglary "element" to describe the relevant statutes include entry of an automobile as well as a building, [136 S.Ct. 2261] if the indictment or information and jury instructions show that facts to which a statute refers when it uses the defendant was charged only words such as "building," "tent," "boat," or with a burglary of a building, "railroad car." See, e.g., ante, at 2251 – 2252. and that the jury necessarily It points out that, here, the Iowa Supreme had to find an entry of a Court described those words as referring, not building to convict, then the to "elements" of a crime, but rather to Government should be allowed "means" through which a crime was to use the conviction for committed. See ante, at 2249 – 2250. And enhancement." Id., at 602, 110 that fact, in the majority's view, makes all the S.Ct. 2143. difference. See ante, at 2254 – 2256. But why? I, of course, see that there is a (We later added that where a conviction rests distinction between means and elements in upon an offender's guilty plea, the federal the abstract, but—for sentencing purposes—I judge can look to the facts that the offender believe that it is a distinction without a admitted at his plea colloquy for the same difference. purpose. See Shepard v. United States, 544 Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

II boat—then the defendant loses, for (as long as the jury decides unanimously that the I begin with a point about terminology. All defendant broke into an occupied structure of the relevant words in this case, such as whichever kind) the jury need not decide "building," "structure," "water vehicle," and unanimously which particular means the the like, are statutory words. Moreover, the defendant used to commit the crime. See statute uses those words to help describe a ante, at 2248 – 2250. crime. Further, the statute always uses those words to designate facts . Whether the I accept that reasoning. But I do not see what offender broke into a building is a fact; it has to do with sentencing. In the majority's whether he broke into a water vehicle is a fact. view, the label "means" opens up the Sometimes, however, a State may treat possibility of a six-to-six jury split, and it certain of those facts as elements of a crime. believes that fact would prevent us from And sometimes a State may treat certain of knowing whether the conviction was for those facts as means of committing a crime. breaking into a "building" or a "boat." See So far, everyone should agree. See ante, at 2249 – 2250. But precisely the same Richardson v. United States, 526 U.S. 813, is true were we to use the label "element" to 817, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) describe the facts set forth in the state statute. (describing both "elements" and "means" as The federal sentencing judge may see on the "facts"). Where we disagree is whether that defendant's record a conviction for violating a difference, relevant to the application of state particular provision of the state criminal law, should make a difference for federal code; that code may list in a single sentence sentencing purposes. both "buildings" and "boats"; the State may interpret the two words as separate elements III of two separate crimes; and the federal judge will not know from the simple fact of Whether a State considers the statutory conviction for violating the statute (without words "boat" or "building" to describe more) which of the elements of a crime or a means of committing a crime can make a difference for purposes of [136 S.Ct. 2262] applying the State's criminal law, but it should not make a difference in respect to the two crimes was at issue (that is, was it the one sentencing question at issue here. The aimed at burglaries of buildings, or the one majority, I believe, reasons something like aimed at burglaries of boats?). That is why the this: Suppose the jury unanimously agreed Court said in Taylor that in such a case the that the defendant unlawfully entered some federal judge may look to the "indictment or kind of structure with felonious intent, but information and jury instructions" to the jury is deadlocked six to six as to whether determine whether "the jury necessarily had that structure is (1) a "boat" or (2) a "house." to find an entry of a building," rather than a If the statute uses those two words to describe boat, "to convict." 495 U.S., at 602, 110 S.Ct. two different elements of two different 2143. If so, the federal judge may count the crimes—i.e., (1) breaking into a boat, and (2) conviction as falling within the federal breaking into a house—then the defendant statutory word "burglary" and use it for wins, for the jury has not found unanimously sentencing. each element of either crime. But if the statute uses those two words to describe two In my view, precisely the same is true if the different means of committing the same state courts label the statute-mentioned facts crime—i.e., breaking into an occupied ("building," "boat," etc.) as "means" rather structure that consists of either a house or a than "elements." The federal judge should be Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

able to "look ... to" the charging documents we would know that—if the charging and the plea agreement to see if "the jury documents claim only that the defendant necessarily had to find an entry of a building," broke into a house, and the Government rather than a boat, "to convict." Ibid. If so, the presented proof only of that kind of federal judge should be able to count the burglary—the jury had to find unanimously conviction as a federal-statute "burglary" that he broke into a house, not a boat. And conviction and use it for sentencing. that is so whether state law considers the statutory word "house" to be an element or a Of course, sometimes the charging documents means. I have not found any nonfanciful will not give us the answer to the question. example to the contrary. But often they will. If, for example, the charging document accuses Smith of breaking IV and entering into a house (and does not mention any other structure), then (1) the Consider the federal statute before us—the jury had to find unanimously that he broke statute that contains the word "burglary"— into a "house," if "house" is an element, and from a more general sentencing perspective. (2) the jury had to find unanimously that he By way of background, it is important to broke into a "house," if "house" is the only understand that, as a general matter, any means charged. (Otherwise the jury would sentencing system must embody a host of not have unanimously found that he broke compromises between theory and practicality. into an "occupied structure," which is an From the point of view of pure theory, there is element of the statutory crime.) much to be said for "real offense" sentencing. Such a system would require a commission or Suppose, for example, that breaking into a a sentencing judge to determine in some "building" is an element of Iowa's burglary crime; and suppose the State charges that [136 S.Ct. 2263] Smith broke into a building located in Des Moines (and presents evidence at trial detail "the actual conduct in which the concerning only a Des Moines offense), but defendant engaged," i.e., what the defendant the jury returns its verdict on a special-verdict really did now and in the past. United States form showing that six jurors voted for guilt on Sentencing Commission (USSC), Guidelines the theory that he broke into a building Manual ch. 1, pt. A, p. 5 (Nov. 2015). Such a located in Detroit—not Des Moines. The system would produce greater certainty that conviction would fail (at least in Iowa), would two offenders who engaged in (and had it not? See, e.g., State v. Bratthauer, 354 previously engaged in) the same real conduct N.W.2d 774, 776 (Iowa 1984) ("If substantial would be punished similarly. See ibid. evidence is presented to support each alternative method of committing a single Pure "real offense" sentencing, however, is crime, and the alternatives are not repugnant too complex to work. It requires a sentencing to each other, then unanimity of the jury as to judge (or a sentencing commission) to know the mode of commission of the crime is not all kinds of facts that are difficult to discover required. At the root of this standard is the as to present conduct and which a present principle that the unanimity rule requires sentencing judge could not possibly know jurors to be in substantial agreement as to when he or she seeks to determine what just what a defendant did as a step conduct underlies a prior conviction. Because preliminary to determining whether the of these practical difficulties, the USSC defendant is guilty of the crime charged" created Guidelines that in part reflect a (emphasis added; citation, brackets, and "charge offense" system, a system based internal quotation marks omitted)). Similarly, "upon the conduct that constitutes the Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

elements of the offense for which the constraints—they must try to determine defendant was charged and of which he was whether a prior conviction reflects the kind of convicted." Ibid. behavior that Congress intended its proxy (i.e., "burglary") to cover. A pure "charge offense" system, however, also has serious problems. It can place great The majority's approach, I fear, is not authority to determine a sentence in the practical. Perhaps the statutes of a few States hands of the prosecutor, not the judge, say whether words like "boat" or "building" creating the very nonuniformity that a stand for an element of a crime or a means to commission would hope to minimize. Hence, commit a crime. I do not know. I do know, the actual federal sentencing system retains however, that many States have burglary "a significant number of real offense statutes that look very much like the Iowa elements," allowing adjustments based upon statute before us today. See, e.g., the facts of a defendant's case. Id., at 6. And Colo.Rev.Stat. §§ 18–4–101, 18–4–202, 18– the Commission is currently looking for new 4–203 (2015) ; Mont.Code Ann. §§ 45–2–101, ways to create a better compromise. See, e.g., 45–6–201, 45–6–204 (2015); N.H.Rev.Stat. USSC, Amendments to the Sentencing Ann. § 635:1 (2015) ; N.D. Cent. Code Ann. §§ Guidelines, at 24 (Apr. 2016) (effective Nov. 1, 12.1–22–02, 12.1–22–06 (2012); Ohio 2016) (creating a "sentence-imposed model Rev.Code Ann. §§ 2909.01, 2911.11 –2911.13 for determining" whether prior convictions (Lexis 2014) ; 18 Pa. Cons.Stat. Ann. §§ 3501, count for sentence-enhancement purposes in 3502 (2015); S.D. Codified Laws §§ 22–1–2, the context of certain immigration crimes). [136 S.Ct. 2264] With this background in mind, turn to the federal statute before us. The statute, 22–32–1, 22–32–3, 22–32–8 (2006) ; Wyo. reflecting the impossibility of knowing in Stat. Ann. §§ 6–1–104, 6–3–301 (2015) ; see detail the conduct that underlies a prior also ALI, Model Penal Code §§ 221.0, 221.1 conviction, uses (in certain cases involving (1980); cf. Taylor, 495 U.S., at 598, 110 S.Ct. possession of weapons) the fact of certain 2143 ("burglary" in the federal statute should convictions (including convictions for reflect the version of burglary "used in the burglary) as (conclusive) indications that the criminal codes of most States"). I also know present defendant has previously engaged in that there are very few States where one can highly undesirable conduct. And, for the find authoritative judicial opinions that general reasons earlier described, it is decide the means/element question. In fact, practical considerations, not a general theory, the Government told us at oral argument that that would prevent Congress from listing the it had found only "two States" that, in the specific prior conduct that would warrant a context of burglary, had answered the higher present sentence. Practical means/elements question. Tr. of Oral Arg. 45; considerations, particularly of administration, see id., at 37. can explain why Congress did not tell the courts precisely how to apply its statutory The lack of information is not surprising. word "burglary." And similar practical After all, a prosecutor often will charge just considerations can help explain why this one (e.g., a "building") of several statutory Court, in Taylor and later cases, described a alternatives. See Descamps v. United States, modified categorical approach for separating 570 U.S. ––––, ––––, 133 S.Ct. 2276, 2283– the sheep from the goats. Those cases 2284, 186 L.Ed.2d 438 (2013). A jury that recognize that sentencing judges have limited convicts, then, would normally have to agree time, they have limited information about unanimously about the existence of that prior convictions, and—within practical particular fact. See Richardson, 526 U.S., at Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

818, 119 S.Ct. 1707 ("Our decision [whether especially difficult to comprehend the something is an element or a means] will distinction" (emphasis deleted)). make a difference where ... the Government introduces evidence that the defendant has V committed more underlying drug crimes than legally necessary to make up a ‘series' "). The majority bases its conclusion primarily Hence, it will not matter for that particular upon precedent. In my view, precedent does case whether the State, as a general matter, not demand the conclusion that the majority would categorize that fact (to which the reaches. I agree with the majority that our statute refers) as an "element" or as a cases on the subject have all used the word "means." "element" in contexts similar to the present context. But that fact is hardly surprising, for So on the majority's approach, what is a all the cases in which that word appears federal sentencing judge to do when facing a involved elements—or at least the Court state statute that refers to a "building," a assumed that was so. See Descamps, 570 "boat," a "car," etc.? The charging documents U.S., at ––––, n. 2, 133 S.Ct., at 2285, n. 2. In will not answer the question, for—like the each of documents at issue here—they will simply charge entry into, say, a "building," without [136 S.Ct. 2265] more. But see ante, at 2256 – 2257 (suggesting that a defendant's charging those cases, the Court used the word documents will often answer the question). generally, simply to refer to the matter at The parties will have to look to other state issue, without stating or suggesting any view cases to decide whether that fact is a "means" about the subject of the present case. See, or an "element." That research will take time e.g., id., at ––––, 133 S.Ct., at 2283 and is likely not to come up with an answer. ("Sentencing courts may look only to the What was once a simple matter will produce a statutory definitions—i.e., the elements—of a time-consuming legal tangle. See, e.g., State defendant's prior offenses" (internal v. Peterson, 168 Wash.2d 763, 769, 230 P.3d quotation marks omitted)); Shepard, 544 588, 591 (2010) ( " ‘There is simply no bright- U.S., at 16–17, 125 S.Ct. 1254 (using the terms line rule by which the courts can determine "statutory definition" and "statutory whether the legislature intended to provide elements" interchangeably); Taylor, 495 U.S., alternate means of committing a particular at 602, 110 S.Ct. 2143 ("[A]n offense crime. Instead, each case must be evaluated constitutes ‘burglary’ for purposes of [the on its own merits' " (brackets omitted)); State Armed Career Criminal Act] if either its v. Brown, 295 Kan. 181, 192, 284 P.3d 977, statutory definition substantially corresponds 987 (2012) (the "alternative means" definition to ‘generic’ burglary, or the charging paper is "mind-bending in its application"). That is and jury instructions actually required the why lower court judges have criticized the jury to find all the elements of generic approach the majority now adopts. See, e.g., burglary"). Omargharib v. Holder, 775 F.3d 192, 200 The genius of the common law consists in (C.A.4 2014) (Niemeyer, J., concurring) part in its ability to modify a prior holding in ("Because of the ever-morphing analysis and light of new circumstances, particularly the increasingly blurred articulation of where, as Justice Holmes said, an existing applicable standards, we are being asked to principle runs up against a different principle decide, without clear and workable standards, that requires such modification. See Holmes, whether disjunctive phrases in a criminal law The Path of the Law, 10 Harv. L. Rev. 457, define alternative elements of a crime or 469 (1897). A fortiori, we should not apply alternative means of committing it.... I find it Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

this Court's use of a word in a prior case—a constituent of the federal statute's version of word that was not necessary to the decision of "burglary." If the entry is lawful, the crime the prior case, and not intended to set forth a does not fall within the scope of that word. generally applicable rule—to a new circumstance that differs significantly in We held that a conviction under this statute respect to both circumstances and the legal did not count as a "burglary" for federal question at issue. purposes. We reasoned that the statute required the Government only to prove Does Apprendi v. New Jersey, 530 U.S. 466, "entry," that there was no reason to believe 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), that charging documents would say whether require the majority's result here? There we the entry was lawful or unlawful, and that, held that any fact ("[o]ther than the fact of a "most important[ly]," even if they did, the prior conviction") that must be proved in jury did not have to decide that order to increase the defendant's sentence above what would otherwise be the statutory [136 S.Ct. 2266] maximum must be proved to a jury beyond a reasonable doubt. Id., at 490, 120 S.Ct. 2348. the entry was unlawful in order to convict Where, as here, the State charges only one (that is, any description in the charging kind of "occupied structure"—namely, entry document that would imply or state that the into a "garage"—that criterion is met. The entry was illegal, say, at 2:00 in the morning, State must prove to the jury beyond a would be coincidental). Id., at ––––, 133 reasonable doubt that the defendant S.Ct., at 2290 ; see id., at ––––, 133 S.Ct., at unlawfully entered a garage. And that is so, 2288. whether the statute uses the term "garage" to refer to a fact that is a means or a fact that is Here, by way of contrast, the charging an element. If the charging papers simply said documents must allege entry into an "occupied structure," leaving the jury free to "occupied structure," and that "structure" can disagree about whether that structure was a consist of one of several statutory "garage" or was, instead, a "boat," then we alternatives. Iowa Code §§ 713.1, 702.12. The lack the necessary assurance about jury present law thus bears little resemblance to unanimity; and the sentencing judge the hypothetical statute the majority consequently cannot use that conviction as a describes. That hypothetical statute makes it basis for an increased federal sentence. And a crime to break into a "premises" without that is true whether the state statute, when saying more. Ante, at 2255 – 2256. Thus, to using the words "garage" and "boat," intends apply the federal sentencing statute to such a them to refer to a fact that is a means or a fact nonspecific, hypothetical statute would that is an element. require sentencing judges to "imaginatively transfor[m]" "every element of [the] statute ... What about Descamps ? The statute there at so that [the] crime is seen as containing an issue made it a crime to "ente [r] certain infinite number of sub-crimes corresponding locations with intent to commit grand or petit to ‘all the possible ways an individual can larceny or any felony." 570 U.S., at ––––, 133 commit’ " the crime—an impossibly difficult S.Ct., at 2282 (internal quotation marks task. Descamps, 570 U.S., at –––– – ––––, omitted). The statute made no distinction 133 S.Ct. at 2291. between (1) lawful entry (e.g., entering a department store before closing time) and (2) But the Iowa statute before us contains unlawful entry (e.g., breaking into a store explicit (not hypothetical) statutory after it has closed). See ibid. The difference alternatives, and therefore it is likely (not matters because unlawful entry is a critical unlikely) that the charging documents will list Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

one or more of these alternatives. Indeed, that Sabine Moreau lives in Solre–sur–Sambre, a is the case with each of Mathis' charging town in Belgium located 38 miles south of documents. See App. 60–73. And if the Brussels. One day she set out in her car to charging documents list only one of these pick up a friend at the Brussels train station, a alternatives, say, a "building," the jury trip that should have taken under an hour. normally would have to find unanimously She programmed her GPS and headed off. that the defendant entered into a building in Although the GPS sent her south, not north, order to convict. See Bratthauer, 354 N.W.2d, she apparently thought nothing of it. She at 776. To repeat my central point: In my dutifully stayed view, it is well within our precedent to count a state burglary conviction as a "burglary" [136 S.Ct. 2267] within the meaning of the federal law where (1) the statute at issue lists the alternative on the prescribed course. Nor was she means by which a defendant can commit the deterred when she saw road signs in German crime (e.g., burgling a "building" or a "boat") for Cologne, Aachen, and Frankfurt. "I asked and (2) the charging documents make clear myself no questions," she later recounted. "I that the state alleged (and the jury or trial kept my foot down."1 judge necessarily found) only an alternative that matches the federal version of the crime. Hours passed. After crossing through Germany, she entered Austria. Twice she Descamps was not that kind of case. It stopped to refuel her car. She was involved in concerned a statute that did not explicitly list a minor traffic accident. When she tired, she alternative means for commission of the pulled over and slept in her car. She crossed crime. And it concerned a fact extraneous to the Alps, drove through Slovenia, entered the crime—the fact (whether entry into the Croatia, and finally arrived in Zagreb—two burgled structure was lawful or unlawful) was days and 900 miles after leaving her home. neither a statutory means nor an element. As Either she had not properly set her GPS or the the Court in that case described it, the fact at device had malfunctioned. But Ms. Moreau issue was, under the state statute, a "legally apparently refused to entertain that thought extraneous circumstanc[e]" of the State's until she arrived in the Croatian capital. Only case. 570 U.S., at ––––, 133 S.Ct., at 2288. then, she told reporters, did she realize that But this case concerns a fact necessary to the she had gone off course, and she called home, crime (regardless of whether the Iowa where the police were investigating her Supreme Court generally considers that fact disappearance. to be a means or an element). Twenty-six years ago, in Taylor v. United Precedent, by the way, also includes Taylor . States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 And, as I have pointed out, Taylor says that L.Ed.2d 607 (1990), this Court set out on a the modified categorical approach it sets forth journey like Ms. Moreau's. Our task in may "permit the sentencing court to go Taylor, like Ms. Moreau's short trip to the beyond the mere fact of conviction in a train station, might not seem very difficult— narrow range of cases where a jury was determining when a conviction for burglary actually required to find all the elements of counts as a prior conviction for burglary generic burglary." 495 U.S., at 602, 110 S.Ct. under the Armed Career Criminal Act 2143. Taylor is the precedent that I believe (ACCA), 18 U.S.C. § 924(e). But things have governs here. Because the majority takes a not worked out that way. different view, with respect, I dissent. Congress enacted ACCA to ensure that violent Justice ALITO, dissenting. repeat criminal offenders could be subject to Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

enhanced penalties—that is, longer prison convictions in a great many States may be sentences—in a fair and uniform way across disqualified from counting as predicate States with myriad criminal laws. See offenses under ACCA. This conclusion should Descamps v. United States, 570 U.S. ––––, – set off a warning bell. Congress indisputably ––– – ––––, 133 S.Ct. 2276, 2301–2302, 186 wanted burglary to count under ACCA; our L.Ed.2d 438 (2013) (ALITO, J., dissenting). course has led us to the conclusion that, in ACCA calls for an enhanced sentence when a many States, no burglary conviction will defendant, who has three or more prior count; maybe we made a wrong turn at some convictions for a "violent felony," is found point (or perhaps the Court is guided by a guilty of possession of a firearm. § 924(e)(1). malfunctioning navigator). But the Court is And ACCA provides that the term "violent unperturbed by its anomalous result. Serenely felony" means, among other things, "any chanting its mantra, "Elements," see ante, at crime punishable by imprisonment for a term 2251, the Court keeps its foot down and drives exceeding one year ... that ... is burglary." § on. 924(e)(2)(B). In other words, "burglary" = "violent felony." The Court's approach calls for sentencing judges to delve into pointless abstract While this language might seem questions. In Descamps, the Court gave straightforward, Taylor introduced two sentencing judges the assignment of complications. First, Taylor held that determining whether a state statute is "burglary" under ACCA means offenses that "divisible." See 570 U.S., at ––––, 133 S.Ct., have the elements of what the Court called at 2293. When I warned that this novel "generic" burglary, defined as unlawfully inquiry would prove to be difficult, the entering or remaining in a building or opinion of the Court brushed off that concern, structure with the intent to commit a crime. see id., at ––––, 133 S.Ct., at 2285, n. 2 495 U.S., at 598, 110 S.Ct. 2143. This ("[W]e can see no real-world reason to definition is broader than that of the common worry"). But lower court judges, who must law but does not include every offense that regularly grapple with the modified States have labeled burglary, such as the categorical approach, struggled to understand burglary of a boat or vehicle. Second, Taylor Descamps . Compare Rendon v. Holder, 764 and subsequent cases have limited the ability F.3d 1077, 1084–1090 (C.A.9 2014) (panel of sentencing judges to examine the record in opinion), with 782 F.3d 466, 466–473 (C.A.9 prior cases for the purpose of determining 2015) (eight judges dissenting from denial of whether the convictions in those cases were reh'g en banc), and id., at 473–474 (Kozinski, for "generic burglary." See, e.g., J., dissenting from denial of reh'g en banc). Now the Court tells them they must decide [136 S.Ct. 2268] whether entering or remaining in a building is an "element" of committing a crime or merely Shepard v. United States, 544 U.S. 13, 26, 125 a "means" of doing so. I wish them good luck. S.Ct. 1254, 161 L.Ed.2d 205 (2005). We have called this the "modified categorical The distinction between an "element" and a approach." Descamps, supra, at –––– – ––– "means" is important in a very different –, 133 S.Ct., at 2281–2282. context: The requisite number of jurors (all 12 in most jurisdictions) must agree that a Programmed in this way, the Court set out on defendant committed each element of an a course that has increasingly led to results offense, but the jurors need not agree on the that Congress could not have intended.2 And means by which an element was committed. finally, the Court arrives at today's decision, So if entering or remaining in a building is an the upshot of which is that all burglary element, the jurors must agree that the Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

defendant entered or remained in a building burglary statutes like Iowa's that apply to the and not, say, a boat. But if the element is burglary of places other than a building, entering or remaining within one of a list of neither the Government nor petitioner has places specified in the statute (say, building, found a single case in any of these boat, vehicle, tent), then entering or jurisdictions resolving the question whether remaining in a building is simply a means. the place burglarized is an element or a Jurors do not need to agree on the means by means. which an offense is committed, and therefore whether a defendant illegally entered a The Court assures the federal district judges building or a boat would not matter for who must apply ACCA that they do not need purposes of obtaining a conviction. such state-court decisions, that it will be easy for federal judges to predict how state courts In the real world, there are not many cases in would resolve this question if it was ever which the state courts are required to decide presented to them. Ante, at 2256 – 2257. But whether jurors in a burglary case must agree the Court has not shown how this can be on the building vs. boat issue, so the question done. The Government's brief cites numerous whether buildings and boats are elements or state statutes like Iowa's. Brief for United means does not often arise. As a result, state- States 42, n. 12. If this task is so easy, let the court Court pick a few of those States and give the lower court judges a demonstration. [136 S.Ct. 2269] Picking up an argument tossed off by Judge cases on the question are rare. The Kozinski, the Court argues that a federal Government has surveyed all the state sentencing judge can get a sense of whether burglary statutes and has found only one— the places covered by a state burglary statute Iowa, the State in which petitioner was are separate elements or means by examining convicted for burglary—in which the status of the charging document. Ante, at 2256 – 2257 the places covered as elements or means is (citing Rendon, supra, at 473–474 (Kozinski, revealed. See Brief for United States 43, and J., dissenting from denial of reh'g en banc)). n. 13. Petitioner's attorneys have not cited a If, for example, the charging document similar decision from any other State. alleges that the defendant burglarized a house, that is a clue, according to the Court, How, then, are federal judges sentencing that "house" is an element. See ibid . I pointed under ACCA to make the element/means out the problem with this argument in determination? The Court writes: "This Descamps . See 570 U.S., at –––– – ––––, threshold inquiry—elements or means?—is 133 S.Ct., at 2301–2302 (dissenting opinion). easy in this case, as it will be in many others." State rules and practices regarding the Ante, at 2256. Really?3 The determination is wording of charging documents differ, and easy in this case only because the fortified just because something is specifically alleged legal team that took over petitioner's in such a document, it does not follow that representation after this Court granted review this item is an element and not just a means. found an Iowa case on point, but this See ibid . discovery does not seem to have been made until the preparation of the brief filed in this The present case illustrates my point. Court. Brief for United States 43, and n. 13. Petitioner has five prior burglary convictions "Petitioner's belated identification of a in Iowa. In Iowa, the places covered are relevant state decision confirms that the task "means." See ante, at 2254. Yet the charging is not an easy one." Ibid . And that is not the documents in all these cases set out the worst of it. Although many States have specific places that petitioner burglarized—a Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

"house and garage," a "garage," a "machine shed," and a "storage shed." See Brief for DEFENDANT: That's it. Petitioner 9. COURT: Now, are you sure A real-world approach would avoid the mess about that? I mean, are you sure that today's decision will produce. Allow a that 10 Main St. is a house? sentencing court to take a look at the record Could it have actually been a in the earlier case to see if the boat?

[136 S.Ct. 2270] DEFENDANT: No, it was a house. I climbed in through a place that was burglarized was a building or window on the second floor. something else. If the record is lost or inconclusive, the court could refuse to count COURT: Well, there are yachts the conviction. But where it is perfectly clear that have multiple decks. Are that a building was burglarized, count the you sure it is not a yacht? conviction. DEFENDANT: It's a little house. The majority disdains such practicality, and as a result it refuses to allow a burglary PROSECUTOR: Your Honor, conviction to be counted even when the here is a photo of the house. record makes it clear beyond any possible doubt that the defendant committed generic COURT: Give the defendant the burglary. Consider this hypothetical case. photo. Mr. Defendant, is this Suppose that a defendant wishes to plead the place you burglarized? guilty to burglary, and the following occurs in open court on the record at the time of the DEFENDANT: Yes, like I said. plea: COURT: Could it once have PROSECUTOR: I am informed been a boat? Maybe it was that the defendant wishes to originally a house boat and was plead guilty to the charge set out later attached to the ground. in the complaint, namely, "on What about that? June 27, 2016, he broke into a house at 10 Main Street with the DEFENSE COUNSEL: Your intent to commit larceny." honor, we stipulate that it is not a boat. DEFENSE COUNSEL: That is correct. COURT: Well, could it be a vehicle? COURT: Mr. Defendant, what did you do? DEFENDANT: No, like I said, it's a house. It doesn't have any DEFENDANT: I broke into a wheels. house to steal money and jewelry. COURT: There are trailers that aren't on wheels. COURT: Was that the house at 10 Main St.? DEFENSE COUNSEL: Your Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

Honor, my client wants to plead For aficionados of pointless formalism, guilty to burglarizing the house today's decision is a wonder, the veritable ne at 10 Main St. plus ultra of the genre.4

PROSECUTOR: Your Honor, if Along the way from Taylor to the present necessary I will call the owners, case, there have been signs that the Court was Mr. and Mrs. Landlubbers– off course and opportunities to alter its Stationary. They have lived course. Now the Court has reached the legal there for 40 years. They will equivalent of Ms. Moreau's Zagreb. But the testify that it is a building. I also Court, unlike Ms. Moreau, is determined to have the town's tax records. The stay the course and continue on, traveling house has been at that location even further away from the intended since it was built in 1926. It destination. Who knows when, if ever, the hasn't moved. Court will call home.

COURT: What do you say, ------defense counsel? Are those Notes: records accurate? 1 Compare 786 F.3d 1068 (C.A.8 2015) (case DEFENSE COUNSEL: Yes, we below) (recognizing such an exception); so stipulate. Again, my client United States v. Ozier, 796 F.3d 597 (C.A.6 wishes to plead guilty to the 2015) (same); United States v. Trent, 767 burglary of a house. He wants to F.3d 1046 (C.A.10 2014) (same), with Rendon take responsibility for what he v. Holder, 764 F.3d 1077 (C.A.9 2014) did, and as to sentencing,.... (rejecting that exception); Omargharib v. Holder, 775 F.3d 192 (C.A.4 2014) (same). COURT: We'll get to that later. Mr. Defendant, what do you 2 So too in our decisions applying the say? Is 10 Main St. possibly a categorical approach outside the ACCA vehicle? context—most prominently, in immigration cases. See, e.g., Kawashima v. Holder, 565 DEFENDANT: Your Honor, I U.S. 478, 482–483, 132 S.Ct. 1166, 182 admit I burglarized a house. It L.Ed.2d 1 (2012) (stating that a judge must was not a car or truck. look to the "formal element[s] of a conviction[,] rather than to the specific facts COURT: Well, alright. But could underlying the crime," in deciding whether to it possibly be a tent? deport an alien for committing an "aggravated felony"). DEFENDANT: No, it's made of brick. I scraped my knee on the 3 To see the point most clearly, consider an brick climbing up. example arising in the immigration context: A defendant charged under a statute that COURT: OK, I just want to be criminalizes "intentionally, knowingly, or sure. recklessly" assaulting another—as exists in many States, see, e.g., Tex. Penal Code Ann. § [136 S.Ct. 2271] 22.01(a)(1) (West Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor's As the Court sees things, none of this would statement that he committed the crime be enough. Real-world facts are irrelevant. intentionally (as opposed to recklessly) if Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

those mental states are interchangeable (2015) (ALITO, J., dissenting); Descamps, means of satisfying a single mens rea 570 U.S., at –––– – ––––, 133 S.Ct., at element. But such a statement, if treated as 2296–2297 (ALITO, J., dissenting); reliable, could make a huge difference in a Moncrieffe v. Holder, 569 U.S. ––––, –––– deportation proceeding years in the future, – ––––, 133 S.Ct. 1678, 1700–1701, 185 because an intentional assault (unlike a L.Ed.2d 727 (2013) (Alito, J., dissenting); reckless one) qualifies as a "crime involving Chambers v. United States, 555 U.S. 122, moral turpitude," and so requires removal 132–134, 129 S.Ct. 687, 172 L.Ed.2d 484 from the country. See In re Gomez–Perez, (2009) (ALITO, J., concurring in judgment); No. A200–958–511, p. 2 (BIA 2014). see also Hurst v. Florida, 577 U.S. ––––, ––– –, 136 S.Ct. 616, 625, 193 L.Ed.2d 504 (2016) 4 Descamps made the point at some length, (ALITO, J., dissenting); Alleyne v. United adding that the modified categorical approach States, 570 U.S. ––––, –––– – ––––, 133 "retains the categorical approach's central S.Ct. 2151, 2172–2173, 186 L.Ed.2d 314 (2013) feature: a focus on the elements, rather than (ALITO, J., dissenting). the facts, of a crime. And it preserves the categorical approach's basic method: 6 Justice BREYER's dissent rests on the idea comparing those elements with the generic that, contrary to that long-accepted offense's. All the modified approach adds is a definition, a jury sometimes does "necessarily mechanism for making that comparison when ha[ve] to find" a means of commission, see a statute lists multiple, alternative elements, post, at 2260 (quoting Taylor, 495 U.S., at and so effectively creates ‘several different ... 602, 110 S.Ct. 2143 )—but Descamps crimes.’ If at least one, but not all of those specifically refuted that argument too. In that crimes matches the generic version, a court case, Justice ALITO made the selfsame claim: needs a way to find out which the defendant A jury, he averred, should be treated as was convicted of. That is the job, as we have having "necessarily found" any fact, even always understood it, of the modified though non-elemental, that a later sentencing approach: to identify, from among several court can "infer [ ]" that the jury agreed on alternatives, the crime of conviction so that "as a practical matter." 570 U.S., at ––––, 133 the court can compare it to the generic S.Ct., at 2303 (ALITO, J., dissenting). The offense." 570 U.S., at ––––, 133 S.Ct., at 2285 Court rejected that view, explaining that its (citation omitted). ACCA decisions had always demanded that a jury necessarily agree as a legal matter — 5 In another solo dissent, Justice ALITO today which meant on elements and not on means. switches gears, arguing not that our See id., at 2252 , n. 3, 133 S.Ct., at 2286, n. 3. precedent is consistent with his means-based The requirement, from the Court's earliest view, but instead that all of our ACCA decisions, was that a judge could impose a decisions are misguided because all follow 15–year sentence based only on a legal from an initial wrong turn in Taylor v. United "certainty," not on his inference (however States, 495 U.S. 575, 110 S.Ct. 2143, 109 reasonable in a given case) about what a prior L.Ed.2d 607 (1990). See post, at 2267 – 2268. factfinder had thought. Shepard, 544 U.S., at To borrow the driving metaphor of his own 23, 125 S.Ct. 1254 ; see Taylor, 495 U.S., at dissent, Justice ALITO thus locates himself 602, 110 S.Ct. 2143 ; supra, at 2252. Or entirely off the map of our caselaw. But that is otherwise said, the relevant question was not surprising; he has harshly criticized the whether a defendant was legally convicted of categorical approach (and Apprendi too) for a certain offense (with a certain set of many years. See, e.g., Johnson v. United elements), not whether a sentencing judge States, 576 U.S. ––––, –––– – ––––, 135 believes that the factfinder would have S.Ct. 2551, 2577–2580, 192 L.Ed.2d 569 convicted him of that offense had it been on Mathis v. United States, 136 S. Ct. 2243, 195 L. Ed. 2d 604 (2016)

the books. See Carachuri–Rosendo v. Holder, ––, 133 S.Ct., at 2302 (ALITO, J., dissenting). 560 U.S. 563, 576, 130 S.Ct. 2577, 177 L.Ed.2d In Moncrieffe v. Holder, 569 U.S. ––––, 133 68 (2010) (rejecting such a "hypothetical" S.Ct. 1678, 185 L.Ed.2d 727 (2013), where the approach given a similar statute's directive to Court took a similar approach in interpreting "look to the conviction itself"). a provision of the immigration laws, the Court came to the conclusion that convictions in 7 Descamps previously recognized just this about half the states for even very large scale way of discerning whether a statutory list marijuana trafficking do not count as "illicit contains means or elements. See 570 U.S., at trafficking in a controlled substance" under a ––––, n. 2, 133 S.Ct., at 2285, n. 2. The Court provision of the immigration laws. Id., at ––– there noted that indictments, jury –, 133 S.Ct., at 1700 (ALITO, J., dissenting). instructions, plea colloquies and plea agreements will often "reflect the crime's 3 In Rendon v. Holder, 782 F.3d 466, 466– elements" and so can reveal—in some cases 473 (C.A.9 2015) (dissent from denial of better than state law itself—whether a rehearing), eight circuit judges addressed the statutory list is of elements or means. Ibid. question of the difficulty of this Accordingly, when state law does not resolve determination. They described it as "a the means-or-elements question, courts notoriously uncertain inquiry" that will lead should "resort[ ] to the [record] documents" to "uncertain results." Id., at 471. for help in making that determination. Ibid. 4 The Court claims that there are three good 1 For accounts of the journey, see, e.g., reasons for its holding, but as I explained in Waterfield, GPS Failure Leaves Belgian Descamps, none is substantial. The Court's Woman in Zagreb Two Days Later, The holding is not required by ACCA's text or by Telegraph (Jan. 13, 2013), online at the Sixth Amendment, and the alternative http://www.telegraph.co.uk/news/worldnew real-world approach would be fair to s/europe/belgium/9798779/GPS-failure- defendants. See 570 U.S., at ––––, –––– – – leaves-Belgian-woman-in-Zagreb-two-days- –––, 133 S.Ct., at 2296–2297, 2299–2301 later.html (all Internet materials as last (ALITO, J., dissenting). visited June 22, 2016); Grenoble, Sabine Moreau, Belgian Woman, Drives 900 Miles ------Off 90–Mile Route Because of GPS Error, Huffington Post (Jan. 15, 2013), online at http://www.huffingtonpost.com/2013/01/15/ sabine-moreau-gps-belgium-croatia-900- miles_n_2475220.html; Malm, Belgian Woman Blindly Drove 900 Miles Across Europe As She Followed Broken GPS Instead Of 38–Miles To The Station, Daily Mail, (Jan. 14, 2013), online at http://www.dailymail.co.uk/news/article- 2262149/Belgian-woman-67-picking-friend- railway-station-ends-Zagreb-900-miles- away-satnav-disaster.html.

2 In Descamps v. United States, 570 U.S. ––– –, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), the decision meant that no California burglary conviction counts under ACCA. See id ., at –– Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

137 S.Ct. 1562 aggravated felony under the INA is "sexual 198 L.Ed.2d 22 abuse of a minor." § 1101(a)(43)(A). A conviction for sexual abuse of a minor is an Juan ESQUIVEL–QUINTANA, aggravated felony regardless of whether it is Petitioner for a "violation of Federal or State law." § v. 1101(a)(43). The INA does not expressly Jefferson B. SESSIONS III, Attorney define sexual abuse of a minor. General. We must decide whether a conviction under a No. 16–54. state statute criminalizing consensual sexual intercourse between a 21–year–old and a 17– Supreme Court of the United States year–old qualifies as sexual abuse of a minor under the INA. We hold that it does not. Argued Feb. 27, 2017. Decided May 30, 2017. I

Jeffrey L. Fisher, Stanford, CA, for Petitioner. Petitioner Juan Esquivel–Quintana is a native and citizen of Mexico. He was admitted to the Allon Kedem, Washington, DC, for United States as a lawful permanent resident Respondent. in 2000. In 2009, he pleaded no contest in the Superior Court of California to a statutory Michael Carlin, Law Office of Michael Carlin rape offense: "unlawful sexual intercourse PLLC, Ann Arbor, MI, Jeffrey L. Fisher, David with a minor who is more than three years T. Goldberg, Pamela S. Karlan, Supreme younger than the perpetrator," Cal. Penal Court Litigation Clinic, Jayashri Srikantiah, Code Ann. § 261.5(c) (West 2014); see also § Immigrants' Rights Clinic, Stanford Law 261.5(a) ("Unlawful sexual intercourse is an School, Stanford, CA, for Petitioner. act of sexual intercourse accomplished with a person who is not the spouse of the Ian Heath Gershengorn, Acting Solicitor perpetrator, if the person is a minor"). For General, Benjamin C. Mizer, Principal Deputy purposes of that offense, California defines Assistant Attorney General, Edwin S. "minor" as "a person under the age of 18 Kneedler, Deputy Solicitor General, Allon years." Ibid. Kedem, Assistant to the Solicitor General, Donald E. Keener, John W. Blakeley, The Department of Homeland Security initiated removal proceedings against [137 S.Ct. 1567] petitioner based on that conviction. An Immigration Judge concluded that the Patrick J. Glen, Attorneys, Department of conviction qualified as "sexual abuse of a Justice, Washington, DC, for Respondent. minor," 8 U.S.C. § 1101(a)(43)(A), and Justice THOMAS delivered the opinion of the ordered petitioner removed to Mexico. The Court. Board of Immigration Appeals (Board) dismissed his appeal. 26 I. & N. Dec. 469 The Immigration and Nationality Act (INA), (2015). "[F]or a statutory rape offense 66 Stat. 163, as amended, provides that "[a]ny involving a 16– or 17–year–old victim" to alien who is convicted of an aggravated felony qualify as " 'sexual abuse of a minor,' " it after admission" to the United States may be reasoned, "the statute must require a removed from the country by the Attorney meaningful age difference between the victim General. 8 U.S.C. § 1227(a)(2)(A)(iii). One of and the perpetrator." Id., at 477. In its view, the many crimes that constitutes an the 3–year age difference required by Cal. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

Penal Code § 261.5(c) was meaningful. Id., at upon ... the least of th[e] acts" criminalized by 477. Accordingly, the Board concluded that the statute, and then we determine whether petitioner's crime of conviction was an that conduct would fall within the federal aggravated felony, making him removable definition of the crime. Johnson v. United under the INA. Ibid. A divided Court of States, 559 U.S. 133, 137, 130 S.Ct. 1265, 176 Appeals denied Esquivel–Quintana's petition L.Ed.2d 1 (2010) ; see also Moncrieffe, supra, for review, deferring to the Board's at 191, 133 S.Ct. 1678 (focusing "on the interpretation of sexual abuse of a minor minimum conduct criminalized by the state under Chevron U.S.A. Inc. v. Natural statute").1 Petitioner's state conviction is thus Resources Defense Council, Inc., 467 U.S. an "aggravated felony" under the INA only if 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). the least of the acts criminalized by the state 810 F.3d 1019 (C.A.6 2016) ; see also id., at statute falls within the generic federal 1027 (Sutton, J., concurring in part and definition of sexual abuse of a minor. dissenting in part). We granted certiorari, 580 U.S. ––––, 137 S.Ct. 368, 196 L.Ed.2d A 283 (2016), and now reverse. Because Cal. Penal Code § 261.5(c) II criminalizes "unlawful sexual intercourse with a minor who is more than three years Section 1227(a)(2)(A)(iii) makes aliens younger than the perpetrator" and defines a removable based on the nature of their minor as someone under age 18, the conduct convictions, not based on their actual criminalized under this provision would be, at conduct. See Mellouli v. Lynch, 575 U.S. ––– a minimum, consensual sexual intercourse –, ––––, 135 S.Ct. 1980, 1986–1987, 192 between a victim who is almost 18 and a L.Ed.2d 60 (2015). Accordingly, to determine perpetrator who just turned 21. Regardless of whether an alien's conviction qualifies as an the actual facts of petitioner's crime, we must aggravated felony under that presume that his conviction was based on acts that were no more criminal than that. If those [137 S.Ct. 1568] acts do not constitute sexual abuse of a minor under the INA, then petitioner was not section, we "employ a categorical approach by convicted of an aggravated felony and is not, looking to the statute ... of conviction, rather on that basis, removable. than to the specific facts underlying the crime." Kawashima v. Holder, 565 U.S. 478, Petitioner concedes that sexual abuse of a 483, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012) ; minor under the INA includes some statutory see, e.g., Gonzales v. Duenas–Alvarez, 549 rape offenses. But he argues that a statutory U.S. 183, 186, 127 S.Ct. 815, 166 L.Ed.2d 683 rape offense based solely on the partners' ages (2007) (applying the categorical approach set (like the one here) is " 'abuse' " "only when forth in Taylor v. United States, 495 U.S. 575, the younger partner is under 16." Reply Brief 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), to the 2. Because the California statute criminalizes INA). Under that approach, we ask whether " sexual intercourse when the victim is up to 17 'the state statute defining the crime of years old, petitioner contends that it does not conviction' categorically fits within the categorically qualify as sexual abuse of a 'generic' federal definition of a corresponding minor. aggravated felony." Moncrieffe v. Holder, 569 U.S. 184, 190, 133 S.Ct. 1678, 185 L.Ed.2d 727 B (2013) (quoting Duenas–Alvarez, supra, at 186, 127 S.Ct. 815 ). In other words, we We agree with petitioner that, in the context presume that the state conviction "rested of statutory rape offenses that criminalize Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

sexual intercourse based solely on the age of Statutory rape laws are one example of this the participants, the generic federal definition category of crimes. Those laws generally of sexual abuse of a minor requires that the provide that an older person may not engage victim be younger than 16. Because the in sexual intercourse with a younger person California statute at issue in this case does not under a specified age, known as the "age of categorically fall within that definition, a consent." See id., at 20 (defining "age of conviction pursuant to it is not an aggravated consent" as "the age at which a person is felony under § 1101(a)(43)(A). We begin, as deemed competent by law to give consent esp. always, with the text. to sexual intercourse" and cross-referencing "statutory rape"). Many laws also require an [137 S.Ct. 1569] age differential between the two partners.

1 Although the age of consent for statutory rape purposes varies by jurisdiction, see infra, at Section 1101(a)(43)(A) does not expressly 1571, reliable dictionaries provide evidence define sexual abuse of a minor, so we that the "generic" age—in 1996 and today—is interpret that phrase using the normal tools 16. See B. Garner, A Dictionary of Modern of statutory interpretation. "Our analysis Legal Usage 38 (2d ed. 1995) ("Age of begins with the language of the statute." consent, usu[ally] 16, denotes the age when Leocal v. Ashcroft, 543 U.S. 1, 8, 125 S.Ct. one is legally capable of agreeing ... to sexual 377, 160 L.Ed.2d 271 (2004) ; see also Lopez intercourse" and cross-referencing "statutory v. Gonzales, 549 U.S. 47, 53, 127 S.Ct. 625, rape"); Black's Law Dictionary 73 (10th ed. 166 L.Ed.2d 462 (2006) ("The everyday 2014) (noting that the age of consent is understanding of" the term used in § "usu[ally] defined by statute as 16 years"). 1101"should count for a lot here, for the statutes in play do not define the term, and so 2 remit us to regular usage to see what Congress probably meant"). Relying on a different dictionary (and "sparse" legislative history), the Government Congress added sexual abuse of a minor to suggests an alternative " 'everyday the INA in 1996, as part of a comprehensive understanding' " of "sexual abuse of a minor." immigration reform act. See Illegal Brief for Respondent 16–17 (citing Black's Immigration Reform and Immigrant Law Dictionary 1375 (6th ed. 1990)). Around Responsibility Act of 1996, § 321(a)(i), 110 the time sexual abuse of a minor was added to Stat. 3009–627. At that time, the ordinary the INA's list of aggravated felonies, that meaning of "sexual abuse" included "the dictionary defined "[s]exual abuse" as engaging in sexual contact with a person who "[i]llegal sex acts performed against a minor is below a specified age or who is incapable of by a parent, guardian, relative, or giving consent because of age or mental or acquaintance," and defined "[m]inor" as "[a]n physical incapacity." Merriam–Webster's infant or person who is under the age of legal Dictionary of Law 454 (1996). By providing competence," which in "most states" was "18." that the abuse must be "of a minor," the INA Id., at 997, 1375. " 'Sexual abuse of a minor,' " focuses on age, rather than mental or physical the Government accordingly contends, "most incapacity. Accordingly, to qualify as sexual naturally connotes conduct that (1) is illegal, abuse of a minor, the statute of conviction (2) involves sexual activity, and (3) is directed must prohibit certain sexual acts based at at a person younger than 18 years old." Brief least in part on the age of the victim. for Respondent 17. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

We are not persuaded that the generic federal under the INA based solely on the age of the offense corresponds to the Government's participants, the victim must be younger than definition. First, the Government's proposed 16. definition is flatly inconsistent with the definition of sexual abuse contained in the 1 very dictionary on which it relies; the Government's proposed definition does not Surrounding provisions of the INA guide our require that the act be performed "by a interpretation of sexual abuse of a minor. See parent, guardian, relative, or acquaintance A. Scalia & B. Garner, Reading Law: The ." Black's Law Dictionary 1375 (6th ed. 1990) Interpretation of Legal Texts 167 (2012). This (emphasis added). In offense is listed in the INA as an "aggravated felony." 8 U.S.C. § 1227(a)(2)(A)(iii) [137 S.Ct. 1570] (emphasis added). "An 'aggravated' offense is one 'made worse or more serious by any event, as we explain below, offenses circumstances such as violence, the presence predicated on a special relationship of trust of a deadly weapon, or the intent to commit between the victim and offender are not at another crime.' " Carachuri–Rosendo v. issue here and frequently have a different age Holder, 560 U.S. 563, 574, 130 S.Ct. 2577, 177 requirement than the general age of consent. L.Ed.2d 68 (2010) (quoting Black's Law Second, in the context of statutory rape, the Dictionary 75 (9th ed. 2009)). Moreover, the prepositional phrase "of a minor" naturally INA lists sexual abuse of a minor in the same refers not to the age of legal competence subparagraph as "murder" and "rape," § (when a person is legally capable of agreeing 1101(a)(43)(A) —among the most heinous to a contract, for example), but to the age of crimes it defines as aggravated felonies. § consent (when a person is legally capable of 1227(a)(2)(A)(iii). The structure of the INA agreeing to sexual intercourse). Third, the therefore suggests that sexual abuse of a Government's definition turns the categorical minor encompasses only especially egregious approach on its head by defining the generic felonies. federal offense of sexual abuse of a minor as whatever is illegal under the particular law of A closely related federal statute, 18 U.S.C. § the State where the defendant was convicted. 2243, provides further evidence that the Under the Government's preferred approach, generic federal definition of sexual abuse of a there is no "generic" definition at all. See minor incorporates an age of consent of 16, at Taylor, 495 U.S., at 591, 110 S.Ct. 2143 least in the context of statutory rape offenses (requiring "a clear indication that ... Congress predicated solely on the age of the intended to abandon its general approach of participants. Cf. Leocal, 543 U.S., at 12–13, n. using uniform categorical definitions to 9, 125 S.Ct. 377 (concluding that Congress' identify predicate offenses"); id., at 592, 110 treatment of 18 U.S.C. § 16 in an Act passed S.Ct. 2143 ("We think that 'burglary' in § "just nine months earlier" provided "stron [g] 924(e) must have some uniform definition suppor[t]" for our interpretation of § 16 as independent of the labels employed by the incorporated into the INA); Powerex Corp. v. various States' criminal codes"). Reliant Energy Services, Inc., 551 U.S. 224, 232, 127 S.Ct. 2411, 168 L.Ed.2d 112 (2007). C Section 2243, which criminalizes "[s]exual abuse of a minor or ward," contains the only The structure of the INA, a related federal definition of that phrase in the United States statute, and evidence from state criminal Code. As originally enacted in 1986, § 2243 codes confirm that, for a statutory rape proscribed engaging in a "sexual act" with a offense to qualify as sexual abuse of a minor person between the ages of 12 and 16 if the Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

perpetrator was at least four years older than criminal codes for additional evidence about the victim. In 1996, Congress expanded § the generic meaning of sexual abuse of a 2243 to include victims who were younger minor. See Taylor, 495 U.S., at 598, 110 S.Ct. than 12, thereby protecting anyone under the 2143 (interpreting " 'burglary' " under the age of 16. § 2243(a) ; see also § 2241(c). Armed Career Criminal Act of 1984 according Congress did this in the same omnibus law to "the generic sense in which the term is now that added sexual abuse of a minor to the used in the criminal codes of most States"); INA, which suggests that Duenas–Alvarez, 549 U.S., at 190, 127 S.Ct. 815 (interpreting "theft" in the INA in the [137 S.Ct. 1571] same manner). When "sexual abuse of a minor" was added to the INA in 1996, thirty- Congress understood that phrase to cover one States and the District of Columbia set victims under age 16.2 See Omnibus the age of consent at 16 for statutory rape Consolidated Appropriations Act, 1997, §§ offenses that hinged solely on the age of the 121(7), 321,110 Stat. 3009–31, 3009–627. participants. As for the other States, one set the age of consent at 14; two set the age of Petitioner does not contend that the consent at 15; six set the age of consent at 17; definition in § 2243(a) must be imported and the remaining ten, including California, wholesale into the INA, Brief for Petitioner 17, set the age of consent at 18. See Appendix, and we do not do so. One reason is that the infra ; cf. ALI, Model Penal Code § 213.3(1)(a) INA does not cross-reference § 2243(a), (1980) (in the absence of a special whereas many other aggravated felonies in relationship, setting the default age of consent the INA are defined by cross-reference to at 16 for the crime of "[c]orruption of other provisions of the United States Code, [m]inors").3 A significant majority of see, e.g., § 1101(a)(43)(H) ("an offense jurisdictions thus set the age of consent at 16 described in section 875, 876, 877, or 1202 of for statutory rape offenses predicated Title 18 (relating to the demand for or receipt exclusively on the age of the participants. of ransom)"). Another is that § 2243(a) requires a 4–year age difference between the Many jurisdictions set a different age of perpetrator and the victim. Combining that consent for offenses that include an element element with a 16–year age of consent would apart from the age of the participants, such as categorically exclude the statutory rape laws offenses that focus on whether the of most States. See Brief for Respondent 34– perpetrator is in some special relationship of 35; cf. Taylor, 495 U.S., at 594, 110 S.Ct. 2143 trust with the victim. That (declining to "constru[e] 'burglary' to mean common-law burglary," because that "would [137 S.Ct. 1572] come close to nullifying that term's effect in the statute," since "few of the crimes now was true in the two States that had offenses generally recognized as burglaries would fall labeled "sexual abuse of a minor" in 1996. See within the common-law definition"). Alaska Stat. § 11.41.438 (1996) (age of consent Accordingly, we rely on § 2243(a) for for third-degree "sexual abuse of a minor" evidence of the meaning of sexual abuse of a was 16 generally but 18 where "the offender minor, but not as providing the complete or occupie[d] a position of authority in relation exclusive definition. to the victim"); Me. Rev. Stat. Ann., Tit. 17–A, § 254(1) (1983), as amended by 1995 Me. 2 Laws p. 123 (age of consent for "[s]exual abuse of minors" was 16 generally but 18 As in other cases where we have applied the where the victim was "a student" and the categorical approach, we look to state offender was "a teacher, employee or other Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

official in the ... school ... in which the student III [was] enrolled"). And that is true in four of the five jurisdictions that have offenses titled Finally, petitioner and the Government "sexual abuse of a minor" today. Compare, debate whether the Board's interpretation of e.g., D.C. Code §§ 22–3001 (2012), 22–3008 sexual abuse of a minor is entitled to (2016 Cum. Supp.) (age of consent is 16 in the deference under Chevron, 467 U.S. 837, 104 absence of a significant relationship) with § S.Ct. 2778, 81 L.Ed.2d 694. Petitioner argues 22–3009.01 (age of consent is 18 where the that any ambiguity in the meaning of this offender "is in a significant relationship" with phrase must be resolved in favor of the alien the victim); see also Brief for Respondent 31 under the rule of lenity. See Brief for (listing statutes with that title). Accordingly, Petitioner 41–45. The Government responds the generic crime of sexual abuse of a minor that ambiguities should be resolved by may include a different age of consent where deferring to the Board's interpretation. See the perpetrator and victim are in a significant Brief for Respondent 45–53. We have no need relationship of trust. As relevant to this case, to resolve whether the rule of lenity or however, the general consensus from state Chevron receives priority in this case because criminal codes points to the same generic the statute, read in context, unambiguously definition as dictionaries and federal law: forecloses the Board's interpretation. Where sexual intercourse is abusive solely Therefore, neither the rule of lenity nor because of the ages of the participants, the Chevron applies. victim must be younger than 16. * * * D We hold that in the context of statutory rape The laws of many States and of the Federal offenses focused solely on the age of the Government include a minimum age participants, the generic federal definition differential (in addition to an age of consent) in defining statutory rape. We need not and [137 S.Ct. 1573] do not decide whether the generic crime of sexual abuse of a minor under 8 U.S.C. § of "sexual abuse of a minor" under § 1101(a)(43)(A) includes an additional element 1101(a)(43)(A) requires the age of the victim of that kind. Petitioner has "show[n] to be less than 16. The judgment of the Court something special about California's version of Appeals, accordingly, is reversed. of the doctrine"—that the age of consent is 18, It is so ordered. rather than 16—and needs no more to prevail. Duenas–Alvarez, supra, at 191, 127 S.Ct. 815. Justice GORSUCH took no part in the Absent some special relationship of trust, consideration or decision of this case. consensual sexual conduct involving a younger partner who is at least 16 years of age APPENDIX does not qualify as sexual abuse of a minor under the INA, regardless of the age These tables list offenses criminalizing sexual differential between the two participants. We intercourse solely because of the age of the leave for another day whether the generic participants. The tables are organized offense requires a particular age differential according to the statutory age of consent as of between the victim and the perpetrator, and September 30, 1996—the date "sexual abuse whether the generic offense encompasses of a minor" was added to the INA. sexual intercourse involving victims over the age of 16 that is abusive because of the nature 14 Years of the relationship between the participants. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

Hawaii Haw. Rev. Stat. (1995) § 707-730(1)(b) (1993) Kentucky Ky. Rev. Stat. Ann. 15 Years §§ 510.020(3)(a), 510.060(1)(b) (Lexis 1990)

Colorado Colo. Rev. Stat. Maine Me. Rev. Stat. Ann., Tit. § 18-3-403(1)(e) (1997) 17-A, § 254(1) (1983), as amended by 1995 Me. Laws South Carolina S. C. Code Ann. p. 123 § 16-3-655(2) (1985) Maryland Md. Ann. Code, Art. 27, 16 Years §§ 464B(a)(4), (5), 464C(a)(2), (3) (1996)

Alabama Ala. Code §§ 13A-6- Massachusetts Mass. Gen. Laws, ch. 62(a)(1), 265, 13A-6-70(c)(1) (1994) § 23 (1992)

Alaska Alaska Stat. Michigan Mich. Comp. Laws § 11.41.436(a)(1) (1996) § 750.520d(1)(a) (1991), as amended by 1996 Mich. Arkansas Ark. Code Ann. §§ 5-14- Pub. Acts p. 393 106(a), 5-14-107(a) (1997) Minnesota Minn. Stat. § 609.344.1(b) (1996) Connecticut Conn. Gen. Stat. § 53a- 71(a)(1) Montana Mont. Code Ann. §§ 45-5- (1995) 501(1)(b)(iii), 45-5-503(3)(a) Delaware Del. Code Ann., Tit. 11, (1995) § 773(2) (1995) Nebraska Neb. Rev. Stat. § 28-319(1) (1994 Cum. Supp.)

District of Columbia D. C. Code §§ 22- 4101(3), 22-4108 (1996) Nevada Nev. Rev. Stat. §§ 200.364(3), 200.368 Georgia Ga. Code Ann. § 16-6-3(a) (1997) (1996) New Hampshire N. H. Rev. Stat. Ann. § Indiana 1998 Ind. Acts § 8, p. 774 632-A:3(II) (1986) Iowa Iowa Code § 709.4(2) (1987), as amended by 1994 Iowa New Jersey N. J. Stat. Ann. § 2C:14- Acts p. 290 2(c)(5) (West 1995) Kansas Kan. Stat. Ann. § 21- 3504(a)(1) Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

North Carolina N. C. Gen. Stat. Ann. § § 14:80(A)(1) (West 1986), as 14-27.7A amended by 1995 La. Acts (1998 Cum. Supp.) no. 241, p. 670

Ohio Ohio Rev. Code Ann. Missouri Mo. Rev. Stat. § 566.034 § 2907.04(A) (Lexis 1996) (1994)

Oklahoma Okla. Stat., Tit. 21, New Mexico N. M. Stat. Ann. § 30-9-11(F), § 1111(A)(1) (1983), as as amended by 1995 amended by 1995 Okla. N. M. Laws ch. 159, p. 1414 Sess. Laws ch. 22, § 1, p. 119 New York N. Y. Penal Law Ann. Pennsylvania 18 Pa. Cons. Stat. § §§ 130.05(3)(a), 130.20(1), 3122.1, 130.25(2) (West 1998) added by 1995 Pa. Laws 985, § 5, p. 987 Texas Tex. Penal Code Ann. §§ 22.011(a)(2), (c)(1) (West Rhode Island R. I. Gen. Laws § 11-37-6 1994) (1994) 18 Years South Dakota S. D. Codified Laws § 22- 22-1(5) (1998) Arizona Ariz. Rev. Stat. Ann. § 13- 1405(A) Utah 1983 Utah Laws ch. 88, § 16 (1989)

Vermont Vt. Stat. Ann., Tit. 13, California Cal. Penal Code Ann. § 3252(a)(3) (1998) § 261.5(a) (West Supp. 1998)

Washington Wash. Rev. Code Florida Fla. Stat. § 794.05(1) (1991) § 9A.44.079 (1994) Idaho Idaho Code Ann. West Virginia W. Va. Code Ann. §§ 61- § 18-6101(1) (Supp. 1996) 8B-2(c)(1), 61-8B-5(a)(2) (Lexis Mississippi Miss. Code Ann. § 97-3-67 1997) (Supp. 1993)

Wyoming Wyo. Stat. Ann. § 6-2- North Dakota N. D. Cent. Code Ann. 304(a)(i) § 12.1-20-05 (Supp. 1983); (1997) § 14-10-01 (1997)

[137 S.Ct. 1576] Oregon Ore. Rev. Stat. §§ 163.315(1), 163.435(1), 17 Years 163.445(1) (1997)

Tennessee Tenn. Code Ann. Illinois Ill. Comp. Stat., ch. 720, § 39-13-506(a) (Supp. 1996) §§ 5/12-15(b)-(c), 5/12-16(d) (West 1996) Virginia Va. Code Ann. § 18.2-371 (1996) Louisiana La. Rev. Stat. Ann. Esquivel-Quintana v. Sessions, 137 S. Ct. 1562, 198 L.Ed.2d 22 (2017)

Wisconsin Wis. Stat. §§ 948.01(1), 948.09 (1993-1994)

------

Notes:

1 Where a state statute contains several different crimes that are described separately, we employ what is known as the "modified categorical approach." See Gonzales v. Duenas–Alvarez, 549 U.S. 183, 187, 127 S.Ct. 815, 166 L.Ed.2d 683 (2007) (internal quotation marks omitted). Under that approach, which is not at issue here, the court may review the charging documents, jury instructions, plea agreement, plea colloquy, and similar sources to determine the actual crime of which the alien was convicted. See ibid.

2 To eliminate a redundancy, Congress later amended § 2243(a) to revert to the pre–1996 language. See Protection of Children From Sexual Predators Act of 1998, § 301(b), 112 Stat. 2979. That amendment does not change Congress' understanding in 1996, when it added sexual abuse of a minor to the INA.

3 The Government notes that this sort of multijurisdictional analysis can "be useful insofar as it helps shed light on the 'common understanding and meaning' of the federal provision being interpreted," but that it is not required by the categorical approach. Brief for Respondent 23–25 (quoting Perrin v. United States, 444 U.S. 37, 45, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979) ). We agree. In this case, state criminal codes aid our interpretation of "sexual abuse of a minor" by offering useful context.

------Rodriguez-Contreras v. Sessions, 873 F.3d 579 (7th Cir., 2017)

873 F.3d 579 relief from removal. See 8 U.S.C. §§ 1227(a)(2)(A)(iii), 1229b(a)(3). Delfino RODRIGUEZ-CONTRERAS, Petitioner, After having been convicted of a felony in v. Illinois, Rodriguez-Contreras was found in Jefferson B. SESSIONS III, Attorney possession of a weapon and convicted of General of the United States, violating 720 ILCS 5/24–1.1(a). He spent 30 Respondent. months in prison for that crime. If the elements of the state offense match the No. 17-1335. elements of § 922(g)(1), then Rodriguez- Contreras must be removed. The question is United States Court of Appeals, not what he did in fact but what elements Seventh Circuit. must be established to secure a conviction—in other words, whether the state statute Argued October 4, 2017 "categorically fits within the ‘generic’ federal Decided October 12, 2017 definition of a corresponding aggravated felony." Esquivel-Quintana v. Sessions , ––– Charles Roth, Attorney, National Immigrant U.S. ––––, 137 S.Ct. 1562, 1568, 198 L.Ed.2d Justice Center, Chicago, IL, Sejal Zota, 22 (2017), quoting from Moncrieffe v. Holder Attorney, National Immigration Project of the , 569 U.S. 184, 190, 133 S.Ct. 1678, 185 National Lawyers Guild, Boston, MA, for L.Ed.2d 727 (2013). Petitioner. Rodriguez-Contreras contends that 720 ILCS OIL, Attorney, Robert M. Stalzer, Attorney, 5/24–1.1(a) does not match the federal crime Department of Justice, Civil Division, because the state statute bars felons from Immigration Litigation, Washington, DC, for possessing pneumatic weapons as well as Respondent. those that use explosives. The Board did not address this argument. Instead it stated that Before Bauer, Easterbrook, and Manion, Negrete-Rodriguez v. Mukasey , 518 F.3d 497 Circuit Judges. (7th Cir. 2008), and Estrada-Hernandez v. Lynch , 819 F.3d 324 (7th Cir. 2016), have Easterbrook, Circuit Judge. held that a violation of 720 ILCS 5/24–1.1(a) An alien who has been convicted of an is an aggravated felony, so there was no work "aggravated felony" as defined in 8 U.S.C. § for the Board to do. 1101(a)(43) is removable from the United The Board's treatment of our decisions [873 F.3d 580] assumes that to address one legal argument is to address all possible legal arguments. States. Section 1101(a)(43)(E) specifies that Negrete-Rodriguez argued that the Illinois any violation of 18 U.S.C. § 922(g)(1) counts and national felon-in-possession crimes do as an aggravated felony. Section 922(g)(1) in not match because the state statute omits the turn bars anyone who has been convicted of a interstate-commerce element that § 922(g)(1) felony from possessing a firearm. The Board contains. We rejected that contention and of Immigration Appeals concluded that these held that courts consider statutes' substantive statutes require Delfino Rodriguez-Contreras, elements rather than provisions that allocate a citizen of Mexico who had been admitted for prosecutorial authority. 518 F.3d at 501–03. permanent residence, to leave the United See also Torres v. Lynch , ––– U.S. ––––, States without any possibility of discretionary 136 S.Ct. 1619, 194 L.Ed.2d 737 (2016) (a state crime covered by § 1101(a)(43) is an Rodriguez-Contreras v. Sessions, 873 F.3d 579 (7th Cir., 2017)

aggravated felony when it matches the federal that it is farfetched to think that possessors of crime in all but the commerce element). Our air rifles would be prosecuted in Illinois. In decision in Negrete-Rodriguez did not say the Attorney General's view the state and whether the substantive elements of the state federal statutes match as a practical matter and federal statutes match, because the alien despite the linguistic difference. Yet a recent had not presented an argument on the decision by the Appellate Court of Illinois subject. Nor did the alien in Estrada- shows that felons are indeed prosecuted for Hernandez . How the substantive elements of and convicted of possessing air rifles. People 720 ILCS 5/24–1.1(a) mesh with those of § v. Thompson , 2017 IL App (3d) 160503, ––– 922(g)(1) has never been resolved by this Ill.Dec. ––––, ––– N.E.3d ––––. court. Now is the time. Air-powered weapons can be as deadly as Section 922(g)(1) prohibits the possession of those that use explosives to generate the gas a "firearm" by someone who has been that propels the bullet; a pneumatic convicted of a felony. The word "firearm" is mechanism can give a bullet quite a kick. defined in 18 U.S.C. § 921(a)(3) as "any Sherlock Holmes called Sebastian Moran the weapon ... designed to ... expel a projectile by second most dangerous man in London the action of an explosive". Any violent (behind only Moriarty) because he killed at a release of gas produces an "explosion" in distance with an air rifle, a quiet weapon that common usage; think of a volcano, which allowed him to avoid detection. See A. Conan propels tons of rock miles into the air when Doyle, The Adventure of the Empty House , gas dissolved in magma comes out of solution in The Return of Sherlock Holmes (1905). It and creates powerful pressure. But § does not surprise us that Illinois prosecutes 921(a)(3) does not ask whether an explosion felons who possess such weapons. This means pushes the projectile out of the weapon; it that the state statute is indeed broader than asks whether an explosive does the work. its federal counterpart and, under the Compressed air is not an explosive, which reasoning of Esquivel-Quintana and its means that pneumatic weapons are not predecessors, cannot be treated as an "firearms" under federal law. See, e.g., United "aggravated felony." States v. Castillo-Rivera , 853 F.3d 218, 225 (5th Cir. 2017) (en banc); United States v. The immigration judge supported her Crooker , 608 F.3d 94, 96 (1st Cir. 2010) ; decision with a fallback argument: that the Bureau of Illinois statute is "divisible" and permits immigration officials (and judges) to look at [873 F.3d 581] the charging papers and other documents to see which statutory provision was involved. Alcohol, Tobacco, Firearms and Explosives The IJ treated 720 ILCS 5/24–1.1(a) as Ruling 2005–4. creating distinct offenses: possession of a (federally defined) firearm by a felon, and Illinois law, by contrast, defines a firearm as possession of an air rifle by a felon. The IJ "any device, by whatever name known, which also found that the weapon that led to is designed to expel a projectile or projectiles Rodriguez-Contreras's conviction used by the action of an explosion, expansion of explosives; she concluded that this marks the gas or escape of gas" with exceptions, particular crime Rodriguez-Contreras including one for pneumatic guns that have a committed as an aggravated felony. muzzle velocity less than 700 feet per second. (Rodriguez-Contreras observes that Smith & 430 ILCS 65/1.1. The Attorney General's brief Wesson, the manufacturer of his weapon, concedes that this definition makes the state made some .22 caliber air pistols, but he does law broader than the federal law but contends Rodriguez-Contreras v. Sessions, 873 F.3d 579 (7th Cir., 2017)

not contend that his .22 caliber pistol was air- The petition for review is granted and the powered.) matter is remanded to the Board for proceedings consistent with this opinion. The Attorney General's brief in this court does not defend the IJ's divisibility ruling. Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), distinguishes between multiple crimes codified under a single heading (divisible) and multiple ways of committing a single crime (not divisible). Illinois has established only a single crime of weapon possession by a felon. In Illinois there are multiple ways of committing that crime (possessing a powerful air rifle is one, possessing a weapon that uses explosives is another), but a definitional clause does not create a separate crime.

It follows that a violation of 720 ILCS 5/24– 1.1(a) is not an "aggravated felony" and that federal law does not foreclose Rodriguez- Contreras's ability to receive discretionary relief from removal. In exercising discretion the Board and IJ are free to consider the fact that Rodriguez-Contreras possessed a weapon that comes within the scope of a federal prohibition as well as a state prohibition. Moncrieffe , 569 U.S. at 204, 133 S.Ct. 1678. All our decision establishes is that his state conviction does not prevent immigration officials from exercising discretion as they deem appropriate.

[873 F.3d 582]

Whether it will be necessary to exercise discretion is open to question. When the removal proceeding began, the agency's sole stated reason for deeming Rodriguez- Contreras removable was his conviction of an aggravated felony; the administrative prosecutor did not rely on any of Rodriguez- Contreras's other convictions or contend that his felon-in-possession conviction, shorn of the aggravated-felony characterization, justifies removal. The first order of business on remand therefore will be to determine whether this removal proceeding should be dismissed outright. Garcia-Martinez v. Barr (7th Cir., 2019)

JUAN CARLOS GARCIA-MARTINEZ, when particular crimes or specific acts must Petitioner, be characterized. v. WILLIAM P. BARR, Attorney General Nonetheless, there is a rough consensus of the United States, Respondent. that the phrase is more than an epithet. The Supreme Court has held that crimes involving No. 18-1797 fraud, for example, almost always involve moral turpitude. Jordan v. DeGeorge, 341 United States Court of Appeals For the U.S. 223, 232 (1951). By contrast, there is Seventh Circuit near universal agreement that simple assault is not such a crime. See, e.g., In re Solon, 24 I. ARGUED OCTOBER 26, 2018 & N. Dec. 239, 241 (BIA 2007). But when, as APRIL 16, 2019 in the present case, the court must use a categorical approach for classifying crimes, Petition for Review of an Order of the Board and only some of the conduct covered by a of Immigration Appeals statute appears to be sufficiently vile, base, No. A206-274-310 immoral, or depraved to deserve the label moral turpitude, it is hard to be sure when or Before WOOD, Chief Judge, and SYKES and whether the line from ordinary culpability to SCUDDER, Circuit Judges. moral turpitude has been crossed.

WOOD, Chief Judge. The task of A great deal can hang on the proper identifying a "crime involving moral characterization of an offense, as the case now turpitude" has vexed courts and agencies for before us illustrates. In 1998 Juan Carlos decades, if not centuries. "Moral turpitude" Garcia-Martinez pleaded guilty to assault tends to be defined very broadly. So, for with a deadly weapon in violation of New example, one reads in Black's Law Dictionary Jersey law. See N.J.S.A. § 2C:12-1(b)(2). The (10th ed. 2014), that it is "[c]onduct that is question here is how that crime affects his contrary to justice, honesty, or morality; esp., immigration status. The Board of an act that demonstrates depravity." Immigration Appeals (the Board) Webster's Third New International Dictionary Page 3 Page 2 has found in the past that "assault with a defines it as "1: an act or behavior that gravely deadly weapon" is a crime of moral turpitude violates the moral sentiment or accepted that makes a noncitizen ineligible for moral standards of the community; esp.: cancellation of removal. See Matter of Logan, sexual immorality ... ; 2: the morally culpable 17 I. & N. Dec. 367, 369 (BIA 1980); 8 U.S.C. quality held to be present in some criminal § 1229b(b)(1)(C); see also Pereira v. Sessions, offenses as distinguished from others ... ." The 138 S. Ct. 2105, 2110 n.1 (2018) ("The Court Board of Immigration Appeals offers this: uses the term 'noncitizen' throughout this "The term 'moral turpitude' generally refers opinion to refer to any person who is not a to conduct that is 'inherently base, vile, or citizen or national of the United States."). But depraved, and contrary to the accepted rules we now know from Leocal v. Ashcroft, 543 of morality and the duties owed between U.S. 1, 7 (2004), that the Board must persons or to society in general." Matter of approach this as a categorical inquiry, not one Silva-Trevino, 26 I. & N. Dec. 826, 833 (BIA based on the facts of an individual case. We 2016) (Silva-Trevino III). Each of those must therefore consider whether the crime definitions leaves a lot of work to be done New Jersey has labeled "assault with a deadly Garcia-Martinez v. Barr (7th Cir., 2019)

weapon" covers only conduct that is properly before us is whether the Board correctly classified as a crime of moral turpitude, or if found that the New Jersey crime was one of on the other hand it sweeps in factual moral turpitude. scenarios that are akin to simple assault. If the latter is true, as Garcia-Martinez Some of the circumstances surrounding contends, his crime of conviction is not Garcia-Martinez's conviction are uncontested. categorically one of moral turpitude. The In 1998, he pleaded guilty in New Jersey to a Board found that there was no realistic state charge of assault with a deadly weapon. probability that the New Jersey law could be According to his plea colloquy, Garcia- applied to conduct outside the scope of the Martinez's role in the assault was minor: he generic crime. It therefore concluded that stuck out his foot in order to trip the victim. Garcia-Martinez's earlier conviction was for a Once the victim was on the ground, Garcia- crime involving moral turpitude. Martinez's friends "jumped on [the victim] and started hitting him" and "some of On Garcia-Martinez's petition for review, [Garcia-Martinez's] friends punched [the we conclude that the Board committed victim], kicked him and struck him." Garcia- several legal errors that may have affected its Martinez stood by while his friends carried decision. We thus grant the petition and out their assault; he soon left the scene. The remand for further proceedings. New Jersey prosecutor and judge accepted this recitation of the facts as sufficient to I convict Garcia-Martinez as both a principal and an accomplice. Neither the prosecutor Petitioner Garcia-Martinez, who also has nor the judge asked about the level of force gone under the name Andres Garcia- used by any of the assailants, any weapons Martinez, lacks lawful status in the United used other than fists and feet, or the amount States. The Department of Homeland Security of harm the victim suffered. has charged him as removable on two bases: first, for being present in the United States Page 5 without being admitted or paroled, At Garcia-Martinez's hearing before the Page 4 Immigration Judge (IJ), no one suggested that this account of his conviction was see 8 U.S.C. § 1182(a)(6)(A)(i); and second, incomplete. Instead, both the lawyer from the for having been convicted of a crime involving Department of Homeland Security and moral turpitude, see 8 U.S.C. § Garcia-Martinez focused on whether a New 1182(a)(2)(A)(i)(I). The two grounds carry Jersey conviction for assault with a deadly significantly different consequences. Presence weapon is a crime of moral turpitude when without being admitted or paroled—which the deadly weapon at issue is the Garcia-Martinez admits applies to him—is the perpetrator's hands or feet—specifically the less severe of the two. Under that ground, he foot Garcia-Martinez used to trip his victim. may qualify for discretionary cancellation of The IJ, later affirmed by the Board, did not removal. See 8 U.S.C. § 1229b(a). That is not decide whether the foot for this purpose was possible if the Board correctly found that he deadly. Yet at the same time, both the IJ and has a conviction for a crime of moral the Board found that the record of Garcia- turpitude on his record. Should the latter be Martinez's crime did not foreclose the true, he would be barred from cancellation of possibility that his accomplices used some removal and adjustment of status. See 8 traditional deadly weapon during the U.S.C. § 1229b(b)(1)(C). Given Garcia- commission of the offense. Relying on that Martinez's concession, the only question speculation, the Board ruled that there was no Garcia-Martinez v. Barr (7th Cir., 2019)

realistic probability that New Jersey's crime Silva-Trevino, 24 I. & N. Dec. 687 (A.G. of assault with a deadly weapon would sweep 2008) (Silva-Trevino I). Silva-Trevino I in conduct beyond the scope of a crime of established a three-part test for determining moral turpitude. On that basis, it concluded when a person has been convicted of a crime that Garcia-Martinez was removable on this of moral turpitude. That test first required the ground and thus not eligible for cancellation immigration judge to "determine whether of removal. there is a realistic probability, not a theoretical possibility, that a State or Federal II criminal statute [of conviction] would be applied to reach conduct that does not involve There are several problems with the BIA's moral turpitude." Id. at 698 (internal resolution of Garcia-Martinez's petition. First, quotations omitted). If that categorical the BIA has never defined what it considers a analysis did not resolve the inquiry, the judge "deadly weapon" in the context of a crime was instructed to proceed to step two, under involving moral turpitude. Second, the record which the judge would take a "modified is devoid of evidence that might support the categorical" approach and "examine whether BIA's idea that Garcia-Martinez's accomplices the alien's record of conviction—including used any conventional weapon—a supposition documents such as the indictment, the that appears to have been central to the judgment of conviction, jury instructions, a Board's decision. Third, the BIA misconstrued signed guilty plea and the plea transcript— Garcia-Martinez's argument regarding the evidence[d] a crime that in fact involved factual basis for his plea and decided his case moral turpitude." Id. at 690. Finally, if the based on an argument first raised outside of record of conviction the adversarial process. Page 7 Page 6 was also inconclusive, Silva-Trevino I A instructed the IJ to "consider evidence beyond the formal record of conviction." Id. Before addressing the merits, we must clarify the standard of review that applies Critically, step three of the Silva-Trevino here. It is important for this purpose to I framework, and probably part of step two distinguish between a party's burden to raise (insofar as it required the IJ to make a a point (whether legal or factual) before the determination about the particular facts of Board, and a party's burden of persuasion. the conviction) put a burden of producing Legal issues, including the characterization of historical facts on the noncitizen. See id. at a crime as one of moral turpitude, receive 703 n.4. Silva-Trevino I was still the Board's plenary review in this court. In order properly last authoritative word at the time when this to exhaust his remedies, a petitioner has the court decided cases such as Sanchez v. burden of raising that legal point before the Holder, 757 F.3d 712 (7th Cir. 2014), and Board, see 8 U.S.C. § 1252(d)(1), but both the Cano-Oyarzabal v. Holder, 774 F.3d 914 (7th Board and this court then decide the question Cir. 2014). In both of those decisions, we as a matter of law. For factual questions, the recognized that the Board was using an petitioner bears the burden of production and individualized inquiry. See Sanchez, 757 F.3d persuasion. at 718; Cano-Oyarzabal, 774 F.3d at 917 (applying Silva-Trevino I and looking at While these rules are well established, "evidence beyond the formal record of their application became confused for a time conviction" to "discern the nature of the as a result of the Board's decision in Matter of underlying conviction"). Step three of the Garcia-Martinez v. Barr (7th Cir., 2019)

Silva-Trevino I framework invites the and some that do not, submission of facts related to the conviction. adjudicators must determine if As with all facts, it was the noncitizen's the statute is divisible and thus burden to find and present that evidence. susceptible to a modified categorical approach. Under But Silva-Trevino I is no longer the law. such an analysis, resort to the The Board revisited this very case in Silva- record of conviction is Trevino III, supra, after the Attorney General permitted to identify the directed it to develop "a uniform standard for statutory provision that the determining whether a particular criminal respondent was convicted of offense is a crime involving moral turpitude." violating. See Descamps, 133 S. 26 I. & N. at 826, citing Matter of Silva- Ct. at 2281, 2283 ... . A criminal Trevino, 26 I. & N. Dec. 550 (A.G. 2015) statute is divisible so as to (remand order) (Silva-Trevino II). In warrant a modified categorical carrying out the Attorney General's approach only if (1) it lists instruction, the Board was guided by the multiple discrete offenses as Supreme Court's decisions in Moncrieffe v. enumerated alternatives or Holder, 569 U.S. 184 (2013); Gonzales v. defines a single offense by Duenas-Alvarez, 549 U.S. 183 (2007); reference to disjunctive sets of Shepard v. United States, 544 U.S. 13 (2005); "elements," more than one and Taylor v. United States, 495 U.S. 575 combination of which could (1990). Those decisions collectively spell out support a conviction and (2) at the Court's categorical and modified least one, but not all, of those categorical methodology for listed offenses or combinations of disjunctive Page 8 Page 9 characterizing a statute of conviction, and they demonstrate that the Court has required elements is a categorical match this approach for immigration cases. to the relevant generic standard.

Following the model established in Id. at 833. Notably, Silva-Trevino III dropped Moncrieffe, the Board announced in Silva- the third part of the Silva-Trevino I test, Trevino III that it would apply the "realistic which was the part that gave the noncitizen probability" test to the crime of conviction to the opportunity to introduce additional facts see if it fits within the generic definition of a about the conduct giving rise to the crime of crime involving moral turpitude. Silva- conviction. It left intact the noncitizen's Trevino III, 26 I. & N. Dec. at 831. That test, burden to direct the Board's attention to a it explained, "requires us to focus on the case (either his own or other cases) showing minimum conduct that has a realistic that the statute of conviction applies to probability of being prosecuted under the conduct outside the scope of the generic statute of conviction, rather than on the facts offense. underlying the respondent's particular violation of that statute." Id. The Board It is true that a "crime of moral continued with these remarks: turpitude" is an odd match for the categorical approach. The moral turpitude label refers to In cases where the statute of a particular quality of conduct, as opposed to conviction includes some crimes an act that can be broken into specific that involve moral turpitude elements. But the Board has addressed this Garcia-Martinez v. Barr (7th Cir., 2019)

problem by defining various generic crimes § 2C:12-1. That statute covers assaults of all that do have specific elements as either kinds, from simple assault, § 2C:12-1(a), to categorically evincing moral turpitude or not. aggravated assault, § 2C:12-1(b), to assault For example, the Board here compared its with an auto or vessel, § 2C:12-1(c), to others. generic definition of an aggravated assault to There is no dispute that Garcia-Martinez's New Jersey's crime of assault with a deadly offense was "aggravated assault," as New weapon. Both Chevron deference and the Jersey defines it in § 2C:12-1(b), which reads soundness of the Board's reasoning in Silva- as follows in pertinent part: Trevino III thus lead us to adopt that framework for characterizing crimes of moral A person is guilty of aggravated turpitude in immigration cases. assault if he: ...

Garcia-Martinez has pointed to his own (2) Attempts to cause or case to show that the New Jersey statute purposely or knowingly causes under which he was convicted covers conduct bodily injury to another with a beyond generic assault with a deadly weapon. deadly weapon; ... . We examine that showing, as well as the central legal question whether his crime of N.J.S.A. § 2C:12-1b(2). Elsewhere, the New conviction was one of moral turpitude. See Jersey statute provides definitions of the Guzman-Rivadeneira v. Lynch, 822 F.3d terms used in chapter 12 (among others). 978, 979 (7th Cir. 2016) (describing whether There we find the relevant definition of the petitioner's crime was one of moral "deadly weapon": turpitude as the "underlying question of law" in the case). Courts and agencies decide "Deadly weapon" means any questions of law firearm or other weapon, device, instrument, material or Page 10 Page 11 independent of any burdens of proof imposed on the litigants. Parks v. Ross, 52 U.S. 362, substance, whether animate or 373 (1850) ("It is undoubtedly the peculiar inanimate, which in the manner province ... of the court to determine all it is used or is intended to be questions of law arising thereon."). As applied used, is known to be capable of here, the question whether the New Jersey producing death or serious law categorically describes a crime of moral bodily injury or which in the turpitude is for the court to decide. See, e.g., manner it is fashioned would Mata-Guerrero v. Holder, 627 F.3d 256, 259 lead the victim reasonably to (7th Cir. 2010) ("[T]he classification of a believe it to be capable of crime as one of moral turpitude is a question producing death or serious of law ...."); see also Mellouli v. Lynch, 135 S. bodily injury ... . Ct. 1980, 1987 (2015) (explaining that the categorical approach "focus[es] on the legal N.J.S.A. § 2C:11-1(c). question of what a conviction necessarily Taken together, New Jersey's law established"). forbidding aggravated assault and its B definition of "deadly weapon" fit comfortably within the scope of the Board's definition of a Garcia-Martinez was convicted under morally turpitudinous generic aggravated New Jersey's general assault statute, N.J.S.A. assault. Furthermore, the Board's holding Garcia-Martinez v. Barr (7th Cir., 2019)

that, "since the respondent's offense requires a realistic probability, not a a knowing or purposeful mens rea, the use of theoretical possibility, that the a deadly weapon, and that the victim suffered State would apply its statute to bodily harm, it is categorically a crime of conduct that falls outside the moral turpitude," is a reasonable application generic definition of a crime. To of the latter term. Garcia-Martinez does not show that realistic probability, contest this point. an offender, of course, may show that the statute was so But that is not the end of the inquiry. A applied in his own case. But he law that appears to fit the generic offense on must at least point to his own its face might cover conduct that does not case or other cases in which the exhibit moral turpitude. See, e.g., Silva- state courts in fact did apply the Trevino III, 26 I. & N. Dec. at 833-36 & n.10 statute in the special (holding that Texas's indecency-with-a-child (nongeneric) manner for which statute did not categorically involve moral he argues. turpitude under the realistic probability test, because Texas courts did not interpret it to Gonzales v. Duenas-Alvarez, 549 U.S. 183, require "knowledge that the victim was a 193 (2007). For this purpose, Garcia- minor"). If the New Jersey statute as applied Martinez is relying on the facts of his own covers more conduct, or different conduct, conviction. than the generic crime, then it is not a categorical match. In making that C determination, the Board is entitled to look at the language of the statute, at New Jersey As we noted at the outset, both the Board decisions applying the statute, and at the and this court have described a crime official record of the petitioner's own involving moral turpitude as "conduct that predicate conviction (i.e. the shocks the public conscience as being inherently base, Page 12 Page 13 indictment, the record of any guilty plea, and the other Shepard materials). Those materials vile, or depraved, and contrary to the will shed light on the breadth of the New accepted rules of morality and the duties Jersey offense. But, as Leocal indicated, the owed between persons or to society in Board may not explore whether the general." Sanchez v. Holder, 757 F.3d 712, 715 underlying facts of the specific case before it (7th Cir. 2014) (quoting Lagunas-Salgado v. meet the generic definition. 543 U.S. at 7 Holder, 584 F.3d 707, 710 (7th Cir. 2009)) ("This language requires us to look to the (internal quotation marks omitted); Silva- elements and the nature of the offense of Trevino III, 26 I. & N. Dec. at 833. With that conviction, rather than to the particular facts definition in mind, the Board should have relating to petitioner's crime."). asked whether the minimum (hypothetical) conduct for which there is a realistic We review de novo the BIA's legal probability of prosecution under the statute conclusion that Garcia-Martinez's statute of being considered reflects the necessary degree conviction as applied remains a match for the of depravity. Silva-Trevino III, 26 I. & N. Dec. generic crime. Kiorkis v. Holder, 634 F.3d at 831. If the crime of conviction can apply to 924, 928 (7th Cir. 2011). The Supreme Court both conduct involving moral turpitude and has instructed that, in conducting that conduct that does not meet that standard, inquiry, a court must find: then it is not categorically a crime involving Garcia-Martinez v. Barr (7th Cir., 2019)

moral turpitude. Id. at 830-31. A conviction have fit well within the common-sense core of under such a statute thus would not make a the "deadly weapon" label. But even a brief petitioner inadmissible under 8 U.S.C. § review of state and federal cases shows that 1182(a)(2)(A)(i)(I). (Some statutes are the line that defines what counts as a deadly divisible and thus subject to a modified weapon can be drawn in many places. Given categorical analysis, see Mathis v. United the Board's longstanding position that simple States, 136 S. Ct. 2243, 2249 (2016), but both assault is not a crime of moral turpitude, see, parties agree that the aggravated-assault e.g., Matter of Short, 20 I. & N. Dec. 136, 139 subsection of N.J.S.A. § 2C:12-1b cannot be (BIA 1989), a "deadly weapon" conviction in divided up any further.) some states may fall on the "non- turpitudinous" side of the line. In Garcia-Martinez's case, the Board strayed from this "minimum conduct" and For all the record of conviction here "reasonable probability" inquiry. Instead of shows, the only weapons anyone had in the accepting the facts as set forth in the state- fracas leading to Garcia-Martinez's earlier court record of conviction, the Board conviction were body parts: hands, fingers, speculated that one of Garcia-Martinez's feet. Body parts are sometimes, but not accomplices may have possessed a traditional always, considered to be deadly weapons. deadly weapon. It also observed that Garcia- Cases so holding include State v. Allen, 193 Martinez had not identified for it "another N.C. App. 375 (2008) (hands); State v. [New Jersey] case that was prosecuted even Bennett, 328 S.C. 251 (1997) (hands and though the weapon was not sufficiently fists); People v. Ross, 831 P.2d 1310 (Colo. 'deadly' to involve turpitude" (emphasis 1992) (fists); and Pulliam v. State, 298 So.2d added). The latter statement is troublesome 711 (Miss. 1974) (hands and feet). In other for two reasons. First, if the permissible instances, courts have declined to evidence shows that Garcia-Martinez's own characterize body parts as deadly or conviction was for conduct outside the scope dangerous weapons. See People v. Aguilar, 16 of generic assault with a deadly Cal.4th 1023, 1034 (1997) (hands and feet cannot Page 14 Page 15 weapon, that is enough to show that the minimum conduct that has a realistic be deadly weapons); United States v. Rocha, probability of being prosecuted does not 598 F.3d 1144, 1157 (9th Cir. 2010) (hands reflect moral turpitude—Garcia-Martinez and feet not deadly or dangerous weapons). was, after all, prosecuted for it, and so there Some of the latter courts do allow a finding was nothing hypothetical about the risk. that a tennis shoe on an assailant's foot, Second, it implies that the Board has in mind which is then used to kick a victim, is a deadly a range of deadliness for weapons, and that weapon. United States v. Swallow, 891 F.3d only after some threshold is crossed will the 1203, 1205 (9th Cir. 2018) (tennis shoes crime of assault with that weapon become one qualify as dangerous weapon because they of moral turpitude. Yet the Board did not were "undoubtedly used ... to augment the explain where that line is drawn, nor did it force" of kicks); United States v. Steele, 550 acknowledge that the use of a foot to trip F.3d 693, 699 (8th Cir. 2008) (kicking victim someone might represent the minimum in torso with tennis shoes). Still other cases conduct needed for a conviction under New have considered teeth to be deadly weapons Jersey's law. Perhaps the Board has not seen when used to bite a victim, though these cases the need for greater precision in its earlier often had the threat of HIV transmission cases, because in those instances the weapons lurking in the background. See, e.g., United Garcia-Martinez v. Barr (7th Cir., 2019)

States v. Sturgis, 48 F.3d 784 (4th Cir. 1995). as required by Silva-Trevino III) that they New Jersey, the state of Garcia-Martinez's used anything but their own fists and feet. conviction, has its own quirks. There, placing The Board's musings that the actual a hand in a pocket so as to make a victim assailants may have had other weapons are believe it is a gun counts as the use of a deadly no substitute for evidence. And absent some weapon. See State v. Hutson, 107 N.J. 222, evidence of a traditional deadly weapon 226-28 (1987). before the state court, Garcia-Martinez's conviction could not have "'necessarily' The Board left most of this unexplored. It rested" on the existence of such a weapon. did not explain why Garcia-Martinez's act of Shepard, 544 U.S. at 21. Moreover, the Board sticking his leg out to trip the victim was an did not explain why the accomplices' known act of moral turpitude, thus making his behavior falls within the generic definition of offense fall within the generic crime of assault the offense of conviction. Its failure to explore with a deadly weapon—if that is indeed what these points cannot be dismissed as harmless it decided (also unclear). To the extent the error. The process works only if the Board, Board was relying on accomplice liability, it using the categorical approach, slogs through did not explain whether its decision rested each statute and decides whether it only on the assumption that the actual categorically stays within the boundaries of a assailants were using their fists, or also on the crime of moral turpitude for purposes of unsupported speculation that they were section 1182(a)(2)(A)(i)(I), or if it holding some other unspecified weapon that encompasses additional behavior that does the New Jersey judge thought unimportant not so qualify. enough not to address. This is pertinent, we stress, only for the light it sheds on the scope Garcia-Martinez was sentenced to time of the New Jersey statute. New Jersey is free served for his plea to assault with a deadly to convict people under any of these theories weapon. Had he known that the Board would or factual assumptions, but if its statute consider this statute of conviction sweeps in the use of a leg to trip someone categorically to involve moral turpitude—even (something that has though he insists that his

Page 16 Page 17 probably happened in every elementary only act was to trip his victim—he may have school in the country at one time or another), gone to trial, or he may have pleaded guilty to then the question is whether that conduct a different statutory violation calling for matches the generic definition of use of a additional incarceration but less serious deadly weapon in a way that involves moral immigration consequences. See Mellouli, 135 turpitude, or if instead it is too broad for the S. Ct. at 1987 (describing "safe harbor" guilty New Jersey conviction to be used for pleas that shield defendants from immigration purposes. immigration consequences). Defendants, their attorneys, and prosecutors must The Board did not explain why the constantly negotiate this balancing act among generic definition of assault with a deadly trial, criminal punishment, and immigration weapon includes tripping. If that omission consequences. See Lafler v. Cooper, 566 U.S. was because it was not relying on the use of 156, 169 (2012) ("[C]riminal justice today is the foot to trip and instead was looking at for the most part a system of pleas, not a Garcia-Martinez's accomplices, we have a system of trials. Ninety-seven percent of different problem: there is no record evidence federal convictions and ninety-four percent of (i.e. evidence satisfying the Shepard criteria, state convictions are the result of guilty Garcia-Martinez v. Barr (7th Cir., 2019)

pleas."). It is incumbent on courts and whatever facts were pertinent to his agencies to establish rules and standards that application for cancellation of removal. Cf. allow each of these actors to appreciate the Lopez-Esparza v. Holder, 770 F.3d 606, 607 full consequences of their choices. See (7th Cir. 2014) (noting that under the same Sessions v. Dimaya, 138 S. Ct. 1204, 1212 regulations as are applicable here, petitioner (2018) (explaining that providing "fair notice" bears burden of proving the factual of the criminal consequences of an contention that he had been continuously individual's actions is at the core of the due present in the United States for ten years). process guarantee); Padilla v. Kentucky, 559 But now that Silva-Trevino III has replaced U.S. 356 (2010) (requiring effective counsel to Silva-Trevino I, the question whether the advise defendants of the immigration crime of conviction is one of moral turpitude consequences of a guilty plea). does not turn on the particular facts underlying the conviction. Garcia-Martinez Garcia-Martinez cannot go back in time was entitled to show the Board the record on and renegotiate his plea in response to which the New Jersey courts actually relied; whatever definition of "deadly weapon" the that record shows that he was convicted Board now adopts. But both he and this court without any further fact-finding about the are entitled to know why the Board nature of the accomplices' weapons. The only characterized his New Jersey offense as it did. task left for the Board was to decide as a Because we cannot tell on this record, we matter of law how the New Jersey statute must return this case to the Board for further maps onto the generic offense of assault with proceedings. a deadly weapon.

D The Board failed to explain why Garcia- Martinez failed to meet his burden of showing To the extent that it may be relevant, we applications of New Jersey law that went note as well that the Board seems to have beyond the generic offense. It seemingly misconstrued what Garcia-Martinez is saying rested this conclusion on its belief that all about the factual basis for his conviction. parties agreed that Garcia-Martinez's plea Garcia- colloquy was ambiguous. That is not accurate.

Page 18 Page 19

Martinez argued that his plea colloquy In fact, the argument that the factual basis for contained the entire factual basis for his Garcia-Martinez's plea was incomplete or conviction. The Board understood him to be inconclusive came as a surprise to everyone: saying that the plea colloquy was inconclusive rather than coming from the DHS attorney, it on the question whether his accomplices originated with the IJ at the hearing. Garcia- possessed some unidentified traditional Martinez has contended throughout these deadly weapon. It then stated that any factual proceedings that his state plea colloquy, ambiguity about whether the record which is in the record, laid out all of the facts established the type of weapon(s) Garcia- relevant to his conviction. The DHS attorney Martinez's accomplices were or were not at his initial hearing did not suggest using was to be construed against him otherwise. And Garcia-Martinez's argument because "he bears the burden of establishing comports with the Supreme Court's his eligibility for relief," citing 8 U.S.C. § instructions to present a transcript of a plea 1229a(c)(4)(A)(i) and 8 C.F.R. § 1240.8(d). It colloquy to establish the facts of a pleaded is true that for the case as a whole, Garcia- conviction for the categorical inquiry. See Martinez had the burden of producing Shepard, 544 U.S. at 2021 ("[I]n pleaded Garcia-Martinez v. Barr (7th Cir., 2019)

cases the [relevant documents] would be the Immigration Appeals for further proceedings statement of factual basis for the charge ... consistent with this opinion. shown by a transcript of plea colloquy .... With such material in a pleaded case, a later court could generally tell whether the plea had 'necessarily' rested on the fact identifying the [crime] as generic."). Additionally, the New Jersey Supreme Court requires courts to establish a factual basis before accepting a guilty plea, and the state court accepting Garcia-Martinez's conviction said nothing about the need to establish the existence of a traditional deadly weapon. See State v. Lipa, 219 N.J. 323, 331 (2014) (citing State v. Crawley, 149 N.J. 310, 318 (1997)) ("Before a court can accept a defendant's guilty plea, it first must be convinced that [ ] the defendant has provided an adequate factual basis for the plea ....").

Last, the Board did not explain why, given the abrupt way in which the IJ found factual ambiguity, it nevertheless upheld the IJ's decision to rule against Garcia-Martinez without offering him the opportunity to respond. It appears to us that Garcia- Martinez has entered all the relevant Shepard documents into the record, and so the Board should be able to decide as a matter of law whether New Jersey's assault with a

Page 20 deadly weapon statute is closer to generic simple assault, and thus not a crime of moral turpitude, or stays within the boundaries of generic assault with a deadly weapon, and thus reflects moral turpitude. On remand if the BIA is concerned about the completeness of Garcia-Martinez's Shepard documents, it should explain that view and Garcia-Martinez should be given the opportunity to present any necessary additional materials.

III

We GRANT the petition for review and REMAND the case to the Board of 5/5/2019 Illinois General Assembly - Illinois Compiled Statutes

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Legislative Glossary Because the statute database is maintained primarily for legislative drafting purposes, statutory changes are sometimes included in the statute database before they take effect. If the source note at the end of a Section of the statutes includes a Search By Number Public Act that has not yet taken effect, the version of the law that is currently in (example: HB0001) effect may have already been removed from the database and you should refer to that Public Act to see the changes made to the current law. Search Tips (720 ILCS 5/241.1) (from Ch. 38, par. 241.1) Sec. 241.1. Unlawful use or possession of weapons by felons Search By Keyword or persons in the custody of the Department of Corrections facilities. Search Tips (a) It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 241 of Advanced Search this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction. This Section shall not apply if the person has been granted relief by the Director of the Department of State Police under Section 10 of the Firearm Owners Identification Card Act. (b) It is unlawful for any person confined in a penal institution, which is a facility of the Illinois Department of Corrections, to possess any weapon prohibited under Section 241 of this Code or any firearm or firearm ammunition, regardless of the intent with which he possesses it. (c) It shall be an affirmative defense to a violation of subsection (b), that such possession was specifically authorized by rule, regulation, or directive of the Illinois Department of Corrections or order issued pursuant thereto. (d) The defense of necessity is not available to a person who is charged with a violation of subsection (b) of this Section. (e) Sentence. Violation of this Section by a person not confined in a penal institution shall be a Class 3 felony for which the person shall be sentenced to no less than 2 years and no more than 10 years. A second or subsequent violation of this Section shall be a Class 2 felony for which the person shall be sentenced to a term of imprisonment of not less than 3 years and not more than 14 years, except as provided for in Section 54.5 110 of the Unified Code of Corrections. Violation of this Section by a person not confined in a penal institution who has been convicted of a forcible felony, a felony violation of Article 24 of this Code or of the Firearm Owners Identification Card Act, stalking or aggravated stalking, or a Class 2 or greater felony under the Illinois Controlled Substances Act, the Cannabis Control Act, or the Methamphetamine Control and Community Protection Act is a Class 2 felony for which the ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K24-1.1 1/2 5/5/2019 Illinois General Assembly - Illinois Compiled Statutes person shall be sentenced to not less than 3 years and not more than 14 years, except as provided for in Section 54.5110 of the Unified Code of Corrections. Violation of this Section by a person who is on parole or mandatory supervised release is a Class 2 felony for which the person shall be sentenced to not less than 3 years and not more than 14 years, except as provided for in Section 54.5110 of the Unified Code of Corrections. Violation of this Section by a person not confined in a penal institution is a Class X felony when the firearm possessed is a machine gun. Any person who violates this Section while confined in a penal institution, which is a facility of the Illinois Department of Corrections, is guilty of a Class 1 felony, if he possesses any weapon prohibited under Section 241 of this Code regardless of the intent with which he possesses it, a Class X felony if he possesses any firearm, firearm ammunition or explosive, and a Class X felony for which the offender shall be sentenced to not less than 12 years and not more than 50 years when the firearm possessed is a machine gun. A violation of this Section while wearing or in possession of body armor as defined in Section 33F1 is a Class X felony punishable by a term of imprisonment of not less than 10 years and not more than 40 years. The possession of each firearm or firearm ammunition in violation of this Section constitutes a single and separate violation. (Source: P.A. 1003, eff. 1118 .)

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ilga.gov/legislation/ilcs/fulltext.asp?DocName=072000050K24-1.1 2/2 18.07 Definition Of Unlawful Possession Of A Weapon By A Felon

A person commits the offense of unlawful possession of a weapon by a felon when he, having been previously convicted of the offense of ____, knowingly possesses [ (a firearm) (firearm ammunition) (a ____) ].

Committee Note

720 ILCS 5/24-1.1(a) (West, 1994) (formerly Ill.Rev.Stat. ch. 38, §24-1.1(a) (1991)).

Give Instruction 18.08.

Give Instruction 18.07A, defining the word “firearm,” if applicable.

Section 24-1.1(a) exempts certain persons from criminal liability. The defendant bears the burden of proving the exemption by a preponderance of the evidence. See Section 24-2(h); see also People v. Smith, 71 Ill.2d 95, 374 N.E.2d 472, 15 Ill.Dec. 864 (1978). When an exemption is raised by the defendant, give Instruction 18.01A, defining the applicable exemption, and Instruction 4.18, defining the term “preponderance of the evidence.”

Insert in the first blank the prior felony conviction.

In People v. Gonzalez, 151 Ill.2d 79, 87, 600 N.E.2d 1189, 1192-93, 175 Ill.Dec. 731, 734-35 (1992), the supreme court held that location is not a relevant consideration for this offense. Accordingly, the bracketed alternatives referring to location have been deleted. See also People v. Hester, 271 Ill.App.3d 954, 956, 649 N.E.2d 1351, 1354, 208 Ill.Dec. 690, 694 (4th Dist.1995).

If the charge involves a weapon prohibited by Section 24-1 other than a firearm or firearms ammunition, insert in the second blank the name or description of the weapon. If the weapon is prohibited by Section 24-1(a)(2), the State must prove, in addition to possession, an intent to use the weapon unlawfully against another. People v. Crawford, 145 Ill.App.3d 318, 495 N.E.2d 1025, 99 Ill.Dec. 290 (1st Dist.1986). As a result, the phrase “with intent to use the ____ unlawfully against another” must be added to the end of the instruction when a Section 24- 1(a)(2) weapon is charged.

Use applicable bracketed material.

Section 18, Page 60 of 138

18.07A Definition Of Firearm--Unlawful Possession Of A Weapon By A Felon

The word “firearm” means any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas, or escape of gas. [The term does not include ____.] [Whether a firearm is operable does not affect its status as a weapon.]

Committee Note

430 ILCS 65/1.1 (West, 1994) (formerly Ill.Rev.Stat. ch. 38, §83-1.1 (1991)).

This instruction is for use only in conjunction with offenses charged under 720 ILCS 5/24-1.1 (West, 1994) (formerly Ill.Rev.Stat. ch. 38, §24-1.1 (1991)). Do not use this instruction with offenses arising under 720 ILCS 5/24-1 (West, 1994) (formerly Ill.Rev.Stat. ch. 38, §24-1 (1991)). Instead, see Instruction 18.35G.

Use the bracketed material in the first paragraph when appropriate. Insert in the blank the name or description of any gun or device excluded from this definition of the word “firearm” by subsection (1), (2), (3), or (4) of 430 ILCS 65/1.1 (West, 1994).

Use the bracketed second paragraph when a firearm's operability is at issue. See People v. White, 253 Ill.App.3d 1097, 1098, 627 N.E.2d 383, 384, 194 Ill.Dec. 267, 268 (4th Dist.1993), and People v. Hester, 271 Ill.App.3d 954, 957, 649 N.E.2d 1351, 1355, 208 Ill.Dec. 690, 694 (4th Dist.1995).

Section 18, Page 61 of 138

18.08 Issues In Unlawful Possession Of A Weapon By A Felon

To sustain the charge of unlawful possession of a weapon by a felon, the State must prove the following propositions: First Proposition: That the defendant knowingly possessed [ (a firearm) (firearm ammunition) (____) ]; and Second Proposition: That the defendant had previously been convicted of the offense of ____. If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty. If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty. [However, if you find the defendant has proved by a preponderance of the evidence that the Director of the Department of State Police has granted the defendant a Firearm Owner's Identification Card, you should find the defendant not guilty.]

Committee Note

720 ILCS 5/24-1.1(a) (West, 1994) (formerly Ill.Rev.Stat. ch. 38, §24-1.1(a) (1991)).

Give Instruction 18.07.

Give the bracketed portion of the last paragraph when evidence of an exemption is presented. See Committee Note to Instruction 18.07.

If the charge involves a weapon prohibited by Section 24-1, other than a firearm or firearm ammunition, insert in the blank in the First Proposition the name or description of the weapon. If the weapon is prohibited by Section 24-1(a)(2), the following proposition must be added to reflect the requirement that the defendant possessed the weapon with an intent to use it unlawfully against another:

Second Proposition: That the defendant did so with intent to use the ____ unlawfully against another person; and

See People v. Crawford, 145 Ill.App.3d 318, 495 N.E.2d 1025, 99 Ill.Dec. 290 (1st Dist.1986). The Committee suggests that this proposition be included as the Second Proposition and that the Second Proposition in the original instruction be renumbered Third Proposition.

Insert in the blank in the second proposition the prior felony conviction.

In People v. Gonzalez, 151 Ill.2d 79, 87, 600 N.E.2d 1189, 1192-93, 175 Ill.Dec. 731, 734-35 (1992), the supreme court held that location is not a relevant consideration for this offense. Accordingly, the previous second proposition has been deleted. See also People v. Hester, 271 Ill.App.3d 954, 956, 649 N.E.2d 1351, 1354, 208 Ill.Dec. 690, 694 (4th Dist.1995).

Use applicable bracketed material.

When accountability is an issue, ordinarily insert the phrase “or one for whose conduct he

Section 18, Page 62 of 138

is legally responsible” after the word “defendant” in each proposition. See Instruction 5.03.

Section 18, Page 63 of 138