Descamps v. United States

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DESCAMPS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE NINTH CIRCUIT
No. 11–9540. Argued January 7, 2013—Decided June 20, 2013
The Armed Career Criminal Act (ACCA) increases the sentences of cer-
tain federal defendants who have three prior convictions “for a vio-
lent felony,” including “burglary, arson, or extortion.” 18 U.S. C.
§924(e). To determine whether a past conviction is for one of those
crimes, courts use a “categorical approach”: They compare the statu-
tory elements of a prior conviction with the elements of the “generic”
crime―i.e., the offense as commonly understood. If the statute’s ele-
ments are the same as, or narrower than, those of the generic offense,
the prior conviction qualifies as an ACCA predicate. When a prior
conviction is for violating a “divisible statute”—one that sets out one
or more of the elements in the alternative, e.g., burglary involving en-
try into a building or an automobile—a “modified categorical ap-
proach” is used. That approach permits sentencing courts to consult
a limited class of documents, such as indictments and jury instruc-
tions, to determine which alternative element formed the basis of the
defendant’s prior conviction.
Petitioner Descamps was convicted of being a felon in possession of
a firearm. The Government sought an ACCA sentence enhancement,
pointing to Descamps’ three prior convictions, including one for bur-
glary under California Penal Code Ann. §459, which provides that a
“person who enters” certain locations “with intent to commit grand or
petit larceny or any felony is guilty of burglary.” In imposing an en-
hanced sentence, the District Court rejected Descamps’ argument
that his §459 conviction cannot serve as an ACCA predicate because
§459 goes beyond the “generic” definition of burglary. The Ninth Cir-
cuit affirmed, holding that its decision in United States v. Aguila-
Montes de Oca, 655 F.3d 915, permits the application of the modified
categorical approach to a prior conviction under a statute that is
2 DESCAMPS v. UNITED STATES
Syllabus
“categorically broader than the generic offense.” It found that
Descamps’ §459 conviction, as revealed in the plea colloquy, rested on
facts satisfying the elements of generic burglary.
Held: The modified categorical approach does not apply to statutes like
§459 that contain a single, indivisible set of elements. Pp. 5−23.
(a) This Court’s caselaw all but resolves this case. In Taylor v.
United States, 495 U.S. 575, and Shepard v. United States, 544 U.S.
13, the Court approved the use of a modified categorical approach in
a “narrow range of cases” in which a divisible statute, listing poten-
tial offense elements in the alternative, renders opaque which ele-
ment played a part in the defendant’s conviction. Because a sentenc-
ing court cannot tell, simply by looking at a divisible statute, which
version of the offense a defendant was convicted of, the court is per-
mitted to consult extra-statutory documents—but only to assess
whether the defendant was convicted of the particular “statutory def-
inition” that corresponds to the generic offense. Nijhawan v. Holder,
557 U.S. 29, and Johnson v. United States, 559 U.S. 133, also em-
phasized this elements-based rationale for the modified categorical
approach. That approach plays no role here, where the dispute does
not concern alternative elements but a simple discrepancy between
generic burglary and §459. Pp. 5−10.
(b) The Ninth Circuit’s Aguila-Montes approach turns an elements-
based inquiry into an evidence-based one, asking not whether “statu-
tory definitions” necessarily require an adjudicator to find the generic
offense, but whether the prosecutor’s case realistically led the adjudi-
cator to find certain facts. Aguila-Montes has no roots in this Court’s
precedents. In fact, it subverts those decisions, conflicting with each
of the rationales supporting the categorical approach and threatening
to undo all its benefits. Pp. 10–19.
(1) Taylor’s elements-centric categorical approach comports with
ACCA’s text and history, avoids Sixth Amendment concerns that
would arise from sentencing courts’ making factual findings that
properly belong to juries, and averts “the practical difficulties and po-
tential unfairness of a factual approach.” 495 U. S., at 601.
ACCA’s language shows that Congress intended sentencing courts
“to look only to the fact that the defendant had been convicted of
crimes falling within certain categories, and not to the facts underly-
ing the prior convictions.” Id., at 600. The Ninth Circuit’s approach
runs headlong into that congressional choice. Instead of reviewing
extra-statutory documents only to determine which alternative ele-
ment was the basis for the conviction, the Circuit looks to those ma-
terials to discover what the defendant actually did.
Under ACCA, the sentencing court’s finding of a predicate offense
indisputably increases the maximum penalty. Accordingly, that find-
Cite as: 570 U. S. ____ (2013) 3
Syllabus
ing would (at least) raise serious Sixth Amendment concerns if it
went beyond merely identifying a prior conviction. That is why
Shepard refused to permit sentencing courts to make a disputed de-
termination about what facts must have supported a defendant’s
conviction. 544 U. S., at 25 (plurality opinion). Yet the Ninth Circuit
flouts this Court’s reasoning by authorizing judicial factfinding that
goes far beyond the recognition of a prior conviction.
The Ninth Circuit’s decision also creates the same “daunting” diffi-
culties and inequities that first encouraged the adoption of the cate-
gorical approach. Sentencing courts following Aguila-Montes would
have to expend resources examining (often aged) documents for evi-
dence that a defendant admitted, or a prosecutor showed, facts that,
although unnecessary to the crime of conviction, satisfied an element
of the relevant generic offense. And the Aguila-Montes approach
would also deprive many defendants of the benefits of their negotiat-
ed plea deals. Pp. 12–16.
(2) In defending Aguila-Montes, the Ninth Circuit denied any
real distinction between divisible and indivisible statutes extending
further than the generic offense. But the Circuit’s efforts to imagina-
tively reconceive all indivisible statutes as divisible ones are unavail-
ing. Only divisible statutes enable a sentencing court to conclude
that a jury (or judge at a plea hearing) has convicted the defendant of
every element of the generic crime. Pp. 16−19.
(c) The Government offers a slightly different argument: It con-
tends that the modified categorical approach should apply where, as
here, the mismatch of elements between the crime of conviction and
the generic offense results not from a missing element but from an
element’s overbreadth. But that distinction is malleable and manipu-
lable. And in any event, it is a distinction without a difference.
Whether the statute of conviction has an overbroad or missing ele-
ment, the problem is the same: Because of the mismatch in ele-
ments, a person convicted under that statute is never convicted of the
generic crime. Pp. 19−22.
(d) Because generic unlawful entry is not an element, or an alter-
native element of, §459, a conviction under that statute is never for
generic burglary. Descamps’ ACCA enhancement was therefore im-
proper. Pp. 22–23.
466 Fed. Appx. 563, reversed.
KAGAN, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and SOTOMAYOR, JJ.,
joined. KENNEDY, J., filed a concurring opinion. THOMAS, J., filed an
opinion concurring in the judgment. ALITO, J., filed a dissenting opin-
ion.
Cite as: 570 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9540
_________________
MATTHEW ROBERT DESCAMPS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2013]
JUSTICE KAGAN delivered the opinion of the Court.
The Armed Career Criminal Act (ACCA or Act), 18
U.S. C. §924(e), increases the sentences of certain federal
defendants who have three prior convictions “for a violent
felony,” including “burglary, arson, or extortion.” To de-
termine whether a past conviction is for one of those
crimes, courts use what has become known as the “cate-
gorical approach”: They compare the elements of the stat-
ute forming the basis of the defendant’s conviction with
the elements of the “generic” crime—i.e., the offense as
commonly understood. The prior conviction qualifies as
an ACCA predicate only if the statute’s elements are the
same as, or narrower than, those of the generic offense.
We have previously approved a variant of this method—
labeled (not very inventively) the “modified categorical
approach”—when a prior conviction is for violating a so-
called “divisible statute.” That kind of statute sets out one
or more elements of the offense in the alternative—for
example, stating that burglary involves entry into a build-
ing or an automobile. If one alternative (say, a building)
matches an element in the generic offense, but the other
2 DESCAMPS v. UNITED STATES
Opinion of the Court
(say, an automobile) does not, the modified categorical
approach permits sentencing courts to consult a limited
class of documents, such as indictments and jury instruc-
tions, to determine which alternative formed the basis of
the defendant’s prior conviction. The court can then do
what the categorical approach demands: compare the
elements of the crime of conviction (including the alterna-
tive element used in the case) with the elements of the
generic crime.
This case presents the question whether sentencing
courts may also consult those additional documents when
a defendant was convicted under an “indivisible” statute—
i.e., one not containing alternative elements—that crimi-
nalizes a broader swath of conduct than the relevant
generic offense. That would enable a court to decide,
based on information about a case’s underlying facts, that
the defendant’s prior conviction qualifies as an ACCA
predicate even though the elements of the crime fail to
satisfy our categorical test. Because that result would
contravene our prior decisions and the principles underly-
ing them, we hold that sentencing courts may not apply
the modified categorical approach when the crime of which
the defendant was convicted has a single, indivisible set of
elements.
I
Petitioner Michael Descamps was convicted of being a
felon in possession of a firearm, in violation of 18 U.S. C.
§922(g). That unadorned offense carries a maximum
penalty of 10 years in prison. The Government, however,
sought an enhanced sentence under ACCA, based on
Descamps’ prior state convictions for burglary, robbery,
and felony harassment.
ACCA prescribes a mandatory minimum sentence of 15
years for a person who violates §922(g) and “has three
previous convictions . . . for a violent felony or a serious
Cite as: 570 U. S. ____ (2013) 3
Opinion of the Court
drug offense.” §924(e)(1). The Act defines a “violent felony”
to mean any felony, whether state or federal, that “has
as an element the use, attempted use, or threatened use of
physical force against the person of another,” or that “is
burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious poten-
tial risk of physical injury to another.” §924(e)(2)(B).
Descamps argued that his prior burglary conviction
could not count as an ACCA predicate offense under our
categorical approach. He had pleaded guilty to violating
California Penal Code Ann. §459 (West 2010), which pro-
vides that a “person who enters” certain locations “with
intent to commit grand or petit larceny or any felony is
guilty of burglary.” That statute does not require the
entry to have been unlawful in the way most burglary
laws do. Whereas burglary statutes generally demand
breaking and entering or similar conduct, California’s does
not: It covers, for example, a shoplifter who enters a store,
like any customer, during normal business hours. See
People v. Barry, 94 Cal. 481, 483–484, 29 P. 1026, 1026–
1027 (1892). In sweeping so widely, the state law goes
beyond the normal, “generic” definition of burglary. Ac-
cording to Descamps, that asymmetry of offense elements
precluded his conviction under §459 from serving as an
ACCA predicate, whether or not his own burglary involved
an unlawful entry that could have satisfied the require-
ments of the generic crime.
The District Court disagreed. According to the court,
our modified categorical approach permitted it to examine
certain documents, including the record of the plea collo-
quy, to discover whether Descamps had “admitted the
elements of a generic burglary” when entering his plea.
App. 50a. And that transcript, the court ruled, showed
that Descamps had done so. At the plea hearing, the
prosecutor proffered that the crime “ ‘ involve[d] the break-
ing and entering of a grocery store,’ ” and Descamps failed
4 DESCAMPS v. UNITED STATES
Opinion of the Court
to object to that statement. Ibid. The plea proceed-
ings, the District Court thought, thus established that
Descamps’ prior conviction qualified as a generic burglary
(and so as a “violent felony”) under ACCA. Applying the
requisite penalty enhancement, the court sentenced
Descamps to 262 months in prison—more than twice the
term he would otherwise have received.
The Court of Appeals for the Ninth Circuit affirmed,
relying on its recently issued decision in United States v.
Aguila-Montes de Oca, 655 F.3d 915 (2011) (en banc) (per
curiam). There, a divided en banc court took much the
same view of the modified categorical approach as had
the District Court in this case. The en banc court held
that when a sentencing court considers a conviction under
§459—or any other statute that is “categorically broader
than the generic offense”—the court may scrutinize cer-
tain documents to determine the factual basis of the con-
viction. See id., at 940. Applying that approach, the
Court of Appeals here found that Descamps’ plea, as re-
vealed in the colloquy, “rested on facts that satisfy the
elements of the generic definition of burglary.” 466 Fed.
Appx. 563, 565 (2012).
We granted certiorari, 567 U. S. ___ (2012), to resolve a
Circuit split on whether the modified categorical approach
applies to statutes like §459 that contain a single, “indi-
visible” set of elements sweeping more broadly than the
corresponding generic offense.1 We hold that it does not,
and so reverse.
——————
1 Compare, e.g., 466 Fed. Appx. 563, 565 (CA9 2012) (case below)
(applying the modified categorical approach to §459); United States v.
Armstead, 467 F.3d 943, 947–950 (CA6 2006) (applying that approach
to a similar, indivisible statute), with, e.g., United States v. Beardsley,
691 F.3d 252, 268–274 (CA2 2012) (holding that the modified categori-
cal approach applies only to divisible statutes); United States v. Giggey,
551 F.3d 27, 40 (CA1 2008) (en banc) (same).
Cite as: 570 U. S. ____ (2013) 5
Opinion of the Court
II
Our caselaw explaining the categorical approach and its
“modified” counterpart all but resolves this case. In those
decisions, as shown below, the modified approach serves a
limited function: It helps effectuate the categorical analy-
sis when a divisible statute, listing potential offense ele-
ments in the alternative, renders opaque which element
played a part in the defendant’s conviction. So under-
stood, the modified approach cannot convert Descamps’
conviction under §459 into an ACCA predicate, because
that state law defines burglary not alternatively, but only
more broadly than the generic offense.
We begin with Taylor v. United States, 495 U.S. 575(1990), which established the rule for determining when
a defendant’s prior conviction counts as one of ACCA’s
enumerated predicate offenses (e.g., burglary). Taylor
adopted a “formal categorical approach”: Sentencing
courts may “look only to the statutory definitions”—i.e.,
the elements—of a defendant’s prior offenses, and not “to
the particular facts underlying those convictions.” Id., at
600. If the relevant statute has the same elements as the
“generic” ACCA crime, then the prior conviction can serve
as an ACCA predicate; so too if the statute defines the
crime more narrowly, because anyone convicted under
that law is “necessarily . . . guilty of all the [generic
crime’s] elements.” Id., at 599. But if the statute sweeps
more broadly than the generic crime, a conviction under
that law cannot count as an ACCA predicate, even if the
defendant actually committed the offense in its generic
form. The key, we emphasized, is elements, not facts. So,
for example, we held that a defendant can receive an
ACCA enhancement for burglary only if he was convicted
of a crime having “the basic elements” of generic burglary—
i.e., “unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a crime.”
Ibid. And indeed, we indicated that the very statute at
6 DESCAMPS v. UNITED STATES
Opinion of the Court
issue here, §459, does not fit that bill because “California
defines ‘burglary’ so broadly as to include shoplifting.” Id.,
at 591.
At the same time, Taylor recognized a “narrow range of
cases” in which sentencing courts—applying what we
would later dub the “modified categorical approach”—may
look beyond the statutory elements to “the charging paper
and jury instructions” used in a case. Id., at 602. To
explain when courts should resort to that approach, we
hypothesized a statute with alternative elements—more
particularly, a burglary statute (otherwise conforming to
the generic crime) that prohibits “entry of an automobile
as well as a building.” Ibid. One of those alternatives (a
building) corresponds to an element in generic burglary,
whereas the other (an automobile) does not. In a typical
case brought under the statute, the prosecutor charges one
of those two alternatives, and the judge instructs the jury
accordingly. So if the case involves entry into a building,
the jury is “actually required to find all the elements of
generic burglary,” as the categorical approach demands.
Ibid. But the statute alone does not disclose whether
that has occurred. Because the statute is “divisible”—i.e.,
comprises multiple, alternative versions of the crime—a
later sentencing court cannot tell, without reviewing
something more, if the defendant’s conviction was for the
generic (building) or non-generic (automobile) form of
burglary. Hence Taylor permitted sentencing courts, as a
tool for implementing the categorical approach, to examine
a limited class of documents to determine which of a stat-
ute’s alternative elements formed the basis of the defend-
ant’s prior conviction.
In Shepard v. United States, 544 U.S. 13 (2005), the
hypothetical we posited in Taylor became real: We con-
fronted a Massachusetts burglary statute covering entries
into “boats and cars” as well as buildings. 544 U. S., at 17.
The defendant there pleaded guilty to violating the stat-
Cite as: 570 U. S. ____ (2013) 7
Opinion of the Court
ute, and we first confirmed that Taylor’s categorical ap-
proach applies not just to jury verdicts, but also to plea
agreements. That meant, we held, that a conviction based
on a guilty plea can qualify as an ACCA predicate only if
the defendant “necessarily admitted [the] elements of the
generic offense.” Id., at 26. But as we had anticipated in
Taylor, the divisible nature of the Massachusetts burglary
statute confounded that inquiry: No one could know, just
from looking at the statute, which version of the offense
Shepard was convicted of. Accordingly, we again author-
ized sentencing courts to scrutinize a restricted set of
materials—here, “the terms of a plea agreement or tran-
script of colloquy between judge and defendant”—to de-
termine if the defendant had pleaded guilty to entering a
building or, alternatively, a car or boat. Ibid. Yet we
again underscored the narrow scope of that review: It was
not to determine “what the defendant and state judge
must have understood as the factual basis of the prior
plea,” but only to assess whether the plea was to the ver-
sion of the crime in the Massachusetts statute (burglary of
a building) corresponding to the generic offense. Id., at
25–26 (plurality opinion).
Two more recent decisions have further emphasized
the elements-based rationale—applicable only to divisible
statutes—for examining documents like an indictment or
plea agreement. In Nijhawan v. Holder, 557 U.S. 29(2009), we discussed another Massachusetts statute, this
one prohibiting “ ‘Breaking and Entering at Night’ ” in any
of four alternative places: a “building, ship, vessel, or
vehicle.” Id., at 35. We recognized that when a statute so
“refer[s] to several different crimes,” not all of which qualify
as an ACCA predicate, a court must determine which
crime formed the basis of the defendant’s conviction. Ibid.
That is why, we explained, Taylor and Shepard developed
the modified categorical approach. By reviewing the
extra-statutory materials approved in those cases, courts
8 DESCAMPS v. UNITED STATES
Opinion of the Court
could discover “which statutory phrase,” contained within
a statute listing “several different” crimes, “covered a prior
conviction.” 557 U. S., at 41. And a year later, we repeated
that understanding of when and why courts can resort
to those documents: “[T]he ‘modified categorical approach’
that we have approved permits a court to determine which
statutory phrase was the basis for the conviction.” John-
son v. United States, 559 U.S. 133, 144 (2010) (citation
omitted).
Applied in that way—which is the only way we have
ever allowed—the modified approach merely helps im-
plement the categorical approach when a defendant was
convicted of violating a divisible statute. The modified
approach thus acts not as an exception, but instead as a
tool. It retains the categorical approach’s central feature:
a focus on the elements, rather than the facts, of a crime.
And it preserves the categorical approach’s basic method:
comparing those elements with the generic offense’s. All
the modified approach adds is a mechanism for making
that comparison when a statute lists multiple, alternative
elements, and so effectively creates “several different . . .
crimes.” Nijhawan, 557 U. S., at 41. If at least one, but
not all of those crimes matches the generic version, a court
needs a way to find out which the defendant was convicted
of. That is the job, as we have always understood it, of the
modified approach: to identify, from among several alter-
natives, the crime of conviction so that the court can com-
pare it to the generic offense.2
——————
2 Thedissent delves into the nuances of various States’ laws in an
effort to cast doubt on this understanding of our prior holdings, arguing
that we used the modified categorical approach in cases like Taylor,
Shepard, and Johnson “in relation to statutes that may not have been
divisible” in the way that we have just described. Post, at 5 (ALITO, J.).
But if, as the dissent claims, the state laws at issue in those cases set
out “merely alternative means, not alternative elements” of an offense,
post, at 7, that is news to us. And more important, it would have been
Cite as: 570 U. S. ____ (2013) 9
Opinion of the Court
The modified approach thus has no role to play in this
case. The dispute here does not concern any list of alter-
native elements. Rather, it involves a simple discrepancy
between generic burglary and the crime established in
§459. The former requires an unlawful entry along the
lines of breaking and entering. See 3 W. LaFave, Sub-
stantive Criminal Law §21.1(a) (2d ed. 2003) (hereinafter
LaFave). The latter does not, and indeed covers simple
shoplifting, as even the Government acknowledges. See
Brief for United States 38; Barry, 94 Cal., at 483–484, 29
P., at 1026–1027. In Taylor’s words, then, §459 “define[s]
burglary more broadly” than the generic offense. 495
U. S., at 599. And because that is true—because Califor-
nia, to get a conviction, need not prove that Descamps
broke and entered—a §459 violation cannot serve as an
ACCA predicate. Whether Descamps did break and enter
makes no difference. And likewise, whether he ever ad-
mitted to breaking and entering is irrelevant. Our deci-
sions authorize review of the plea colloquy or other
approved extra-statutory documents only when a statute
defines burglary not (as here) overbroadly, but instead
alternatively, with one statutory phrase corresponding to
the generic crime and another not. In that circumstance,
——————
news to the Taylor, Shepard, and Johnson Courts: All those decisions
rested on the explicit premise that the laws “contain[ed] statutory
phrases that cover several different . . . crimes,” not several different
methods of committing one offense. Johnson, 559 U. S., at 144 (citing
Nijhawan, 557 U. S., at 41). 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 means), the documents we approved
in Taylor and Shepard—i.e., indictment, jury instructions, plea collo-
quy, and plea agreement—would reflect the crime’s elements. So a
court need not parse state law in the way the dissent suggests: When a
state law is drafted in the alternative, the court merely resorts to the
approved documents and compares the elements revealed there to those
of the generic offense.
10 DESCAMPS v. UNITED STATES
Opinion of the Court
a court may look to the additional documents to determine
which of the statutory offenses (generic or non-generic)
formed the basis of the defendant’s conviction. But here
no uncertainty of that kind exists, and so the categorical
approach needs no help from its modified partner. We
know Descamps’ crime of conviction, and it does not corre-
spond to the relevant generic offense. Under our prior
decisions, the inquiry is over.
III
The Court of Appeals took a different view. Dismissing
everything we have said on the subject as “lack[ing] con-
clusive weight,” the Ninth Circuit held in Aguila-Montes
that the modified categorical approach could turn a convic-
tion under any statute into an ACCA predicate offense.
655 F. 3d, at 931. The statute, like §459, could contain a
single, indivisible set of elements covering far more con-
duct than the generic crime—and still, a sentencing court
could “conside[r] to some degree the factual basis for the
defendant’s conviction” or, otherwise stated, “the particu-
lar acts the defendant committed.” Id., at 935–936. More
specifically, the court could look to reliable materials (the
charging document, jury instructions, plea colloquy, and so
forth) to determine “what facts” can “confident[ly]” be
thought to underlie the defendant’s conviction in light of
the “prosecutorial theory of the case” and the “facts put
forward by the government.” Id., at 936–937. It makes no
difference, in the Ninth Circuit’s view, whether “specific
words in the statute” of conviction “ ‘ actually required’ ”
the jury (or judge accepting a plea) “to find a particular
generic element.” Id., at 936 (quoting Taylor, 495 U. S., at
602; internal quotation marks omitted).3
——————
3 The dissent, as we understand it, takes the same view as the Ninth
Circuit; accordingly, each of the reasons—statutory, constitutional, and
practical—that leads us to reject Aguila-Montes proves fatal to the
dissent’s position as well. The dissent several times obscures its call to
Cite as: 570 U. S. ____ (2013) 11
Opinion of the Court
That approach—which an objecting judge aptly called
“modified factual,” 655 F. 3d, at 948 (Berzon, J., concur-
ring in judgment)—turns an elements-based inquiry into
an evidence-based one. It asks not whether “statutory
definitions” necessarily require an adjudicator to find the
generic offense, but instead whether the prosecutor’s case
realistically led the adjudicator to make that determi-
nation. And it makes examination of extra-statutory doc-
uments not a tool used in a “narrow range of cases” to
identify the relevant element from a statute with multiple
alternatives, but rather a device employed in every case to
evaluate the facts that the judge or jury found. By this
point, it should be clear that the Ninth Circuit’s new way of
identifying ACCA predicates has no roots in our precedents.
But more: Aguila-Montes subverts those decisions, conflict-
——————
explore facts with language from our categorical cases, asking whether
“the relevant portions of the state record clearly show that the jury
necessarily found, or the defendant necessarily admitted, the elements
of [the] generic [offense].” Post, at 14; see Shepard, 544 U. S., at 24 (plural-
ity opinion) (reiterating Taylor’s “demanding requirement that . . . a
prior conviction ‘necessarily’ involve[]” a jury finding on each element
of the generic offense) (emphasis added). But the dissent nowhere
explains how a factfinder can have “necessarily found” a non-element—
that is, a fact that by definition is not necessary to support a conviction.
The dissent’s fundamental view is that a sentencing court should be
able to make reasonable “inference[s]” about what the factfinder really
(even though not necessarily) found. See post, at 15. That position
accords with our dissenting colleague’s previously expressed skepticism
about the categorical approach. See Moncrieffe v. Holder, 569 U.S. ___,
___ (2013) (slip op., at 11) (ALITO, J., dissenting) (“I would hold that the
categorical approach is not controlling where the state conviction at
issue was based on a state statute that encompasses both a substantial
number of cases that qualify under the federal standard and a substan-
tial number that do not. In such situations, it is appropriate to look
beyond the elements of the state offense and to rely as well on facts
that were admitted in state court or that, taking a realistic view, were
clearly proved”). But there are several decades of water over that dam,
and the dissent offers no newly persuasive reasons for revisiting our
precedents.
12 DESCAMPS v. UNITED STATES
Opinion of the Court
ing with each of the rationales supporting the categorical
approach and threatening to undo all its benefits.
A
This Court offered three grounds for establishing our
elements-centric, “formal categorical approach.” Taylor,
495 U. S., at 600. First, it comports with ACCA’s text and
history. Second, it avoids the Sixth Amendment concerns
that would arise from sentencing courts’ making findings
of fact that properly belong to juries. And third, it averts
“the practical difficulties and potential unfairness of a
factual approach.” Id., at 601. When assessed in light of
those three reasons, the Ninth Circuit’s ruling strikes out
swinging.
Start with the statutory text and history. As we have
long recognized, ACCA increases the sentence of a defend-
ant who has three “previous convictions” for a violent
felony—not a defendant who has thrice committed such a
crime. 18 U.S. C. §924(e)(1); see Taylor, 495 U. S., at 600.
That language shows, as Taylor explained, that “Congress
intended the sentencing court to look only to the fact that
the defendant had been convicted of crimes falling within
certain categories, and not to the facts underlying the
prior convictions.” Ibid.; see Shepard, 544 U. S., at 19. If
Congress had wanted to increase a sentence based on the
facts of a prior offense, it presumably would have said so;
other statutes, in other contexts, speak in just that way.
See Nijhawan, 557 U. S., at 36 (construing an immigration
statute as requiring a “ ‘circumstance-specific,’ not a ‘cate-
gorical,’ ” approach). But in ACCA, Taylor found, Congress
made a deliberate decision to treat every conviction of a
crime in the same manner: During the lengthy debate
preceding the statute’s enactment, “no one suggested that
a particular crime might sometimes count towards en-
hancement and sometimes not, depending on the facts of
the case.” 495 U. S., at 601. Congress instead meant
Cite as: 570 U. S. ____ (2013) 13
Opinion of the Court
ACCA to function as an on-off switch, directing that a
prior crime would qualify as a predicate offense in all
cases or in none.
The Ninth Circuit’s approach runs headlong into that
congressional choice. Instead of reviewing documents like
an indictment or plea colloquy only to determine “which
statutory phrase was the basis for the conviction,” the
Ninth Circuit looks to those materials to discover what the
defendant actually did. Johnson, 559 U. S., at 144. This
case demonstrates the point. Descamps was not convicted
of generic burglary, because (as the Government agrees)
§459 does not contain that crime’s required unlawful-entry
element. See Brief for United States 38, 43–44. At most,
the colloquy showed that Descamps committed generic
burglary, and so hypothetically could have been convicted
under a law criminalizing that conduct. But that is just
what we said, in Taylor and elsewhere, is not enough. See
495 U. S., at 600; Carachuri-Rosendo v. Holder, 560 U.S.
___, ___ (2010) (slip op., at 11) (rejecting such a “ ‘ hypothet-
ical approach’ ” given a similar statute’s directive to “look
to the conviction itself,” rather than “to what might have
or could have been charged”). And the necessary result of
the Ninth Circuit’s method is exactly the differential
treatment we thought Congress, in enacting ACCA, took
care to prevent. In the two years since Aguila-Montes, the
Ninth Circuit has treated some, but not other, convictions
under §459 as ACCA predicates, based on minor varia-
tions in the cases’ plea documents. Compare, e.g., 466
Fed. Appx., at 565 (Descamps’ §459 conviction counts as
generic burglary), with 655 F. 3d, at 946 (Aguila-Montes’
does not).
Similarly, consider (though Aguila-Montes did not) the
categorical approach’s Sixth Amendment underpinnings.
We have held that “[o]ther than the fact of a prior convic-
tion, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a
14 DESCAMPS v. UNITED STATES
Opinion of the Court
jury, and proved beyond a reasonable doubt.” Apprendi v.
New Jersey, 530 U.S. 466, 490 (2000). Under ACCA, the
court’s finding of a predicate offense indisputably increases
the maximum penalty. Accordingly, that finding would
(at the least) raise serious Sixth Amendment concerns if it
went beyond merely identifying a prior conviction. Those
concerns, we recognized in Shepard, counsel against allow-
ing a sentencing court to “make a disputed” determination
“about what the defendant and state judge must have
understood as the factual basis of the prior plea,” or what
the jury in a prior trial must have accepted as the theory
of the crime. 544 U. S., at 25 (plurality opinion); see id., at
28 (THOMAS, J., concurring in part and concurring in
judgment) (stating that such a finding would “giv[e] rise to
constitutional error, not doubt”). Hence our insistence on
the categorical approach.
Yet again, the Ninth Circuit’s ruling flouts our reasoning—
here, by extending judicial factfinding beyond the recog-
nition of a prior conviction. Our modified categorical
approach merely assists the sentencing court in identify-
ing the defendant’s crime of conviction, as we have held
the Sixth Amendment permits. But the Ninth Circuit’s
reworking authorizes the court to try to discern what a
trial showed, or a plea proceeding revealed, about the
defendant’s underlying conduct. See Aguila-Montes, 655
F. 3d, at 937. And there’s the constitutional rub. The
Sixth Amendment contemplates that a jury—not a sen-
tencing court—will find such facts, unanimously and
beyond a reasonable doubt. And the only facts the court
can be sure the jury so found are those constituting ele-
ments of the offense—as distinct from amplifying but
legally extraneous circumstances. See, e.g., Richardson v.
United States, 526 U.S. 813, 817 (1999). Similarly, as
Shepard indicated, when a defendant pleads guilty to a
crime, he waives his right to a jury determination of only
that offense’s elements; whatever he says, or fails to say,
Cite as: 570 U. S. ____ (2013) 15
Opinion of the Court
about superfluous facts cannot license a later sentencing
court to impose extra punishment. See 544 U. S., at 24–26
(plurality opinion). So when the District Court here en-
hanced Descamps’ sentence, based on his supposed acqui-
escence to a prosecutorial statement (that he “broke and
entered”) irrelevant to the crime charged, the court did
just what we have said it cannot: rely on its own finding
about a non-elemental fact to increase a defendant’s max-
imum sentence.
Finally, the Ninth Circuit’s decision creates the same
“daunting” difficulties and inequities that first encouraged
us to adopt the categorical approach. Taylor, 495 U. S., at
601–602. In case after case, sentencing courts following
Aguila-Montes would have to expend resources examining
(often aged) documents for evidence that a defendant
admitted in a plea colloquy, or a prosecutor showed at
trial, facts that, although unnecessary to the crime of
conviction, satisfy an element of the relevant generic
offense. The meaning of those documents will often be
uncertain. And the statements of fact in them may be
downright wrong. A defendant, after all, often has little
incentive to contest facts that are not elements of the
charged offense—and may have good reason not to. At
trial, extraneous facts and arguments may confuse the
jury. (Indeed, the court may prohibit them for that rea-
son.) And during plea hearings, the defendant may not
wish to irk the prosecutor or court by squabbling about
superfluous factual allegations. In this case, for example,
Descamps may have let the prosecutor’s statement go by
because it was irrelevant to the proceedings. He likely
was not thinking about the possibility that his silence
could come back to haunt him in an ACCA sentencing 30
years in the future. (Actually, he could not have been
thinking that thought: ACCA was not even on the books at
the time of Descamps’ burglary conviction.)
Still worse, the Aguila-Montes approach will deprive
16 DESCAMPS v. UNITED STATES
Opinion of the Court
some defendants of the benefits of their negotiated plea
deals. Assume (as happens every day) that a defendant
surrenders his right to trial in exchange for the govern-
ment’s agreement that he plead guilty to a less serious
crime, whose elements do not match an ACCA offense.
Under the Ninth Circuit’s view, a later sentencing court
could still treat the defendant as though he had pleaded to
an ACCA predicate, based on legally extraneous state-
ments found in the old record. Taylor recognized the
problem: “[I]f a guilty plea to a lesser, nonburglary offense
was the result of a plea bargain,” the Court stated, “it
would seem unfair to impose a sentence enhancement as if
the defendant had pleaded guilty” to generic burglary.
495 U. S., at 601–602. That way of proceeding, on top of
everything else, would allow a later sentencing court to
rewrite the parties’ bargain.
B
The Ninth Circuit defended its (excessively) modified
approach by denying any real distinction between divisible
and indivisible statutes extending further than the generic
offense. “The only conceptual difference,” the court rea-
soned, “is that [a divisible statute] creates an explicitly
finite list of possible means of commission, while [an
indivisible one] creates an implied list of every means of
commission that otherwise fits the definition of a given
crime.” Aguila-Montes, 655 F. 3d, at 927. For example,
an indivisible statute “requir[ing] use of a ‘weapon’ is not
meaningfully different”—or so says the Ninth Circuit—
“from a statute that simply lists every kind of weapon in
existence . . . (‘gun, axe, sword, baton, slingshot, knife,
machete, bat,’ and so on).” Ibid. In a similar way, every
indivisible statute can be imaginatively reconstructed as a
divisible one. And if that is true, the Ninth Circuit asks,
why limit the modified categorical approach only to explic-
itly divisible statutes?
Cite as: 570 U. S. ____ (2013) 17
Opinion of the Court
The simple answer is: Because only divisible statutes
enable a sentencing court to conclude that a jury (or judge
at a plea hearing) has convicted the defendant of every
element of the generic crime. A prosecutor charging a
violation of a divisible statute must generally select the
relevant element from its list of alternatives. See, e.g.,
The Confiscation Cases, 20 Wall. 92, 104 (1874) (“[A]n
indictment or a criminal information which charges the
person accused, in the disjunctive, with being guilty of one
or of another of several offences, would be destitute of the
necessary certainty, and would be wholly insufficient”).4
And the jury, as instructions in the case will make clear,
must then find that element, unanimously and beyond a
reasonable doubt. So assume, along the lines of the Ninth
Circuit’s example, that a statute criminalizes assault with
any of eight specified weapons; and suppose further, as the
Ninth Circuit did, that only assault with a gun counts as
an ACCA offense. A later sentencing court need only
check the charging documents and instructions (“Do they
refer to a gun or something else?”) to determine whether
in convicting a defendant under that divisible statute, the
jury necessarily found that he committed the ACCA-
qualifying crime.
None of that is true of an overbroad, indivisible stat-
ute. A sentencing court, to be sure, can hypothetically
reconceive such a statute in divisible terms. So, as Aguila-
Montes reveals, a court blessed with sufficient time and
——————
4 See also 1 C. Wright & A. Leipold, Federal Practice and Procedure:
Criminal §125, pp. 550–551 (4th ed. 2008) (“If a single statute sets forth
several different offenses, [a] pleading . . . that does not indicate which
crime [the] defendant allegedly committed is insufficient”); 5 W.
LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §19.3(a), p. 263
(3d ed. 2007) (“[W]here a statute specifies several different ways in
which the crime can be committed, [courts often] hold that the pleading
must refer to the particular alternative presented in the individual
case”).
18 DESCAMPS v. UNITED STATES
Opinion of the Court
imagination could devise a laundry list of potential
“weapons”—not just the eight the Ninth Circuit mentioned,
but also (for starters) grenades, pipe bombs, spears, tire
irons, BB guns, nunchucks, and crossbows. But the thing
about hypothetical lists is that they are, well, hypothetical.
As long as the statute itself requires only an indeterminate
“weapon,” that is all the indictment must (or is likely to)
allege and all the jury instructions must (or are likely to)
mention. And most important, that is all the jury must
find to convict the defendant. The jurors need not all
agree on whether the defendant used a gun or a knife or a
tire iron (or any other particular weapon that might ap-
pear in an imagined divisible statute), because the actual
statute requires the jury to find only a “weapon.” And
even if in many cases, the jury could have readily reached
consensus on the weapon used, a later sentencing court
cannot supply that missing judgment. Whatever the un-
derlying facts or the evidence presented, the defendant
still would not have been convicted, in the deliberate and
considered way the Constitution guarantees, of an offense
with the same (or narrower) elements as the supposed
generic crime (assault with a gun).
Indeed, accepting the Ninth Circuit’s contrary reasoning
would altogether collapse the distinction between a cate-
gorical and a fact-specific approach. After all, the Ninth
Circuit’s “weapons” example is just the tip of the iceberg:
Courts can go much further in reconceiving indivisible
statutes as impliedly divisible ones. In fact, every element
of every statute can be imaginatively transformed as the
Ninth Circuit suggests—so that every crime is seen as
containing an infinite number of sub-crimes corresponding
to “all the possible ways an individual can commit” it.
Aguila-Montes, 655 F. 3d, at 927. (Think: Professor Plum,
in the ballroom, with the candlestick?; Colonel Mustard, in
the conservatory, with the rope, on a snowy day, to cover
up his affair with Mrs. Peacock?) If a sentencing court,
Cite as: 570 U. S. ____ (2013) 19
Opinion of the Court
as the Ninth Circuit holds, can compare each of those
“implied . . . means of commission” to the generic ACCA
offense, ibid. (emphasis deleted), then the categorical
approach is at an end. At that point, the court is merely
asking whether a particular set of facts leading to a con-
viction conforms to a generic ACCA offense. And that is
what we have expressly and repeatedly forbidden. Courts
may modify the categorical approach to accommodate
alternative “statutory definitions.” Ibid.; cf. MCI Tele-
communications Corp. v. American Telephone & Telegraph
Co., 512 U.S. 218, 225 (1994) (“ ‘ [T]o modify’ means to
change moderately or in minor fashion”). They may not,
by pretending that every fact pattern is an “implied”
statutory definition, Aguila-Montes, 655 F. 3d, at 927,
convert that approach into its opposite.
IV
The Government tries to distance itself from the Ninth
Circuit by offering a purportedly narrower theory—that
although an indivisible statute that is “truly missing” an
element of the generic offense cannot give rise to an ACCA
conviction, California’s burglary law can do so because it
merely “contains a broader version of the [generic] ele-
ment of unlawfulness of entry.” Brief for United States
11–12. The Government’s argument proceeds in three
steps. It begins from the premise that sentencing courts
applying ACCA should consider not only the statute defin-
ing a prior crime but also any judicial interpretations of it.
Next, the Government points to a California decision
holding (not surprisingly) that a defendant cannot “bur-
glariz[e] his own home”; the case’s reasoning, the Govern-
ment notes, is that §459 (though not saying so explicitly)
requires “an entry which invades a possessory right.”
People v. Gauze, 15 Cal. 3d 709, 713–716, 542 P.2d 1365,
1367–1368 (1975). Given that precedent, the Government
contends, §459 includes a kind of “unlawful entry” ele-
20 DESCAMPS v. UNITED STATES
Opinion of the Court
ment, although it is broader than the generic crime’s
analogous requirement. Finally, the Government asserts
that sentencing courts may use the modified approach “to
determine whether a particular defendant’s conviction
under” such an overbroad statute actually “was for [the]
generic” crime. Brief for United States 11.
Although elaborately developed in the Government’s
brief, this argument’s first two steps turn out to be side-
shows. We may reserve the question whether, in deter-
mining a crime’s elements, a sentencing court should take
account not only of the relevant statute’s text, but of judi-
cial rulings interpreting it. And we may assume, as the
Government insists, that California caselaw treats §459 as
including an element of entry “invading a possessory
right”—although, truth be told, we find the state decisions
on that score contradictory and confusing.5 Even on those
assumptions, §459’s elements do not come into line with
generic burglary’s. As the Government concedes, almost
every entry onto another’s property with intent to steal—
including, for example, a shoplifter’s walking into an open
store—“invades a possessory right” under §459. See Brief
for United States 38; Gauze, 15 Cal. 3d, at 714, 542 P. 2d,
at 1367. By contrast, generic burglary’s unlawful-entry
element excludes any case in which a person enters prem-
ises open to the public, no matter his intent; the generic
crime requires breaking and entering or similar unlawful
——————
5 Several decisions treat “invasion of a possessory right” as an aspect
of §459’s entry element, see, e.g., People v. Waidla, 22 Cal. 4th 690, 723,
996 P.2d 46, 65 (2000); Fortes v. Sacramento Munic. Ct. Dist., 113 Cal.
App. 3d 704, 712–714, 170 Cal. Rptr. 292, 296–297 (1980), but others
view the issue of possessory right as bearing only on the affirmative
defense of consent, see, e.g., People v. Sherow, 196 Cal. App. 4th 1296,
1303–1305, 1311, and n. 9, 128 Cal. Rptr. 3d 255, 260–261, 266, and
n. 9 (2011); People v. Felix, 23 Cal. App. 4th 1385, 1397, 28 Cal. Rptr.
2d 860, 867 (1994). And California’s pattern jury instructions do not
require the jury to find invasion of a possessory right before convicting
a defendant of burglary. See 1 Cal. Jury Instr., Crim., No. 1700 (2012).
Cite as: 570 U. S. ____ (2013) 21
Opinion of the Court
activity. See Brief for United States 38; LaFave §21.1(a).
So everything rests on the Government’s third point: that
this mismatch does not preclude applying the modified
categorical approach, because it results not from a missing
element but instead from an element’s overbreadth.
But for starters, we see no principled way to make that
distinction. Most overbroad statutes can also be charac-
terized as missing an element; and most statutes missing
an element can also be labeled overbroad. Here is the only
conclusion in Aguila-Montes we agree with: “[I]t is diffi-
cult, if not impossible” to determine which is which. 655
F. 3d, at 925. The example that court gave was as follows:
A statute of conviction punishes possession of pornogra-
phy, but a federal law carries a sentence enhancement for
possession of child pornography. Is the statute of convic-
tion overbroad because it includes both adult and child
pornography; or is that law instead missing the element of
involvement of minors? The same name game can be
played with §459. The Government labors mightily to
turn what it fears looks like a missing-element statute
into an overbroad statute through the incorporation of
judicial decisions. But even putting those decisions aside,
the Government might have described §459 as merely
having an overbroad element because “entry” includes
both the lawful and the unlawful kind. And conversely,
Descamps could claim that even as judicially inter-
preted, §459 is entirely missing generic burglary’s ele-
ment of breaking and entering or similar unlawful conduct.
All is in the eye of the beholder, and prone to endless
manipulation.
In any event, and more fundamentally, we see no reason
why the Government’s distinction should matter. Whether
the statute of conviction has an overbroad or missing
element, the problem is the same: Because of the mis-
match in elements, a person convicted under that statute
is never convicted of the generic crime. In this case, for
22 DESCAMPS v. UNITED STATES
Opinion of the Court
example, Descamps was not convicted of generic burglary
because §459, whether viewed as missing an element or
containing an overbroad one, does not require breaking
and entering. So every reason we have given—textual,
constitutional, and practical—for rejecting the Ninth
Circuit’s proposed approach applies to the Government’s
as well. See supra, at 12–16. At bottom, the Government
wants the same thing as the Ninth Circuit (if nominally in
a few fewer cases): It too wishes a sentencing court to look
beyond the elements to the evidence or, otherwise said, to
explore whether a person convicted of one crime could also
have been convicted of another, more serious offense. But
that circumstance-specific review is just what the categor-
ical approach precludes. And as we have explained, we
adopted the modified approach to help implement the
categorical inquiry, not to undermine it.
V
Descamps may (or may not) have broken and entered,
and so committed generic burglary. But §459—the crime
of which he was convicted—does not require the factfinder
(whether jury or judge) to make that determination.
Because generic unlawful entry is not an element, or an
alternative element, of §459, a conviction under that
statute is never for generic burglary. And that decides
this case in Descamps’ favor; the District Court should not
have enhanced his sentence under ACCA.6 That court and
——————
6 The Government here forfeited an alternative argument that §459
qualifies as a predicate offense under ACCA’s “residual clause,” which
covers statutes “involv[ing] conduct that presents a serious potential
risk of physical injury to another.” 18 U.S. C. §924(e)(2)(B)(ii). We
express no view on that argument’s merits. Compare United States v.
Mayer, 560 F.3d 948, 960–963 (CA9 2009) (holding that Oregon’s
burglary statute falls within the residual clause, even though it does
not include all of generic burglary’s elements), with id., at 951
(Kozinski, C. J., dissenting from denial of rehearing en banc) (arguing
that the panel opinion “is a train wreck in the making”).
Cite as: 570 U. S. ____ (2013) 23
Opinion of the Court
the Ninth Circuit erred in invoking the modified categori-
cal approach to look behind Descamps’ conviction in
search of record evidence that he actually committed the
generic offense. The modified approach does not authorize
a sentencing court to substitute such a facts-based inquiry
for an elements-based one. A court may use the modified
approach only to determine which alternative element in a
divisible statute formed the basis of the defendant’s con-
viction. Accordingly, we reverse the judgment of the Court
of Appeals.
It is so ordered.
Cite as: 570 U. S. ____ (2013) 1
KENNEDY, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9540
_________________
MATTHEW ROBERT DESCAMPS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2013]
JUSTICE KENNEDY, concurring.
As the Court explains, this case concerns earlier convic-
tions under state statutes classified by cases in the Courts
of Appeals, and now in today’s opinion for the Court, as
“indivisible.” See, e.g., United States v. Aguila-Montes de
Oca, 655 F.3d 915 (CA9 2011) (en banc) (per curiam);
United States v. Beardsley, 691 F.3d 252 (CA2 2012).
This category is used to describe a class of criminal stat-
utes that are drafted with a single set of elements that are
broader than those of the generic definition of the corre-
sponding crime enumerated in the Armed Career Criminal
Act (ACCA), 18 U.S. C. §924(e)(2)(B)(ii).
Just one of the substantial concerns that the Court
is correct to consider is that, in the regular course of the
criminal process, convictions may be entered, often by
guilty pleas, when either the attorney or the client, or
both, have given no consideration to possible later conse-
quences under ACCA. See ante, at 15–16. As a result,
certain facts in the documents approved for judicial exam-
ination in Shepard v. United States, 544 U.S. 13 (2005),
may go uncontested because they do not alter the sentenc-
ing consequences of the crime, even though their effect is
to require a later enhancement under ACCA. This signifi-
cant risk of failing to consider the full consequences of the
plea and conviction is troubling.
2 DESCAMPS v. UNITED STATES
KENNEDY, J., concurring
Balanced against this, as JUSTICE ALITO indicates, is
that the dichotomy between divisible and indivisible state
criminal statutes is not all that clear. See post, at 12–13
(dissenting opinion). The effect of today’s decision, more-
over, is that an unspecified number, but likely a large
number, of state criminal statutes that are indivisible but
that often do reach serious crimes otherwise subject to
ACCA’s provisions, now must be amended by state legisla-
tures. Otherwise, they will not meet federal requirements
even though they would have come within ACCA’s terms
had the state statute been drafted in a different way. This
is an intrusive demand on the States.
On due consideration, the concerns well expressed by
the Court persuade me that it reaches the correct result.
The disruption to the federal policy underlying ACCA,
nevertheless, is troubling and substantial. See post, at 13–
14 (ALITO, J., dissenting). If Congress wishes to pursue
its policy in a proper and efficient way without mandat-
ing uniformity among the States with respect to their
criminal statutes for scores of serious offenses, and with-
out requiring the amendment of any number of federal
criminal statutes as well, Congress should act at once. It
may then determine whether ACCA’s design and structure
should be modified to meet the concerns expressed both by
the Court and the dissenting opinion.
With these observations, I join the opinion of the Court.
Cite as: 570 U. S. ____ (2013) 1
THOMAS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9540
_________________
MATTHEW ROBERT DESCAMPS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2013]
JUSTICE THOMAS, concurring in the judgment.
Petitioner Matthew Descamps was convicted of being a
felon in possession of a firearm, 18 U.S. C. §922(g), which
subjected him to a maximum sentence of 10 years’ impris-
onment. The District Court, however, applied an Armed
Career Criminal Act (ACCA) enhancement with a manda-
tory minimum of 15 years based in part on Descamps’
earlier California conviction for burglary. See §924(e).
The California law says that any “person who enters” any
of a number of structures “with intent to commit grand or
petit larceny or any felony is guilty of burglary.” Califor-
nia Penal Code Ann. §459 (West 2010). That law does
not, on its face, require the jury to determine whether the
entry itself was unlawful, a required element of the so-
called “generic” offense of burglary that qualifies as an
ACCA predicate. See Taylor v. United States, 495 U.S.
575, 599 (1990). The majority holds that a court may not
review the underlying facts of Descamps’ state crime to
determine whether he entered the building unlawfully
and, thus, that his burglary conviction may not be used as
a predicate offense under ACCA. While I agree with the
Court’s conclusion, I disagree with its reasoning.
I have previously explained that ACCA runs afoul of
Apprendi v. New Jersey, 530 U.S. 466 (2000), because it
allows the judge to “mak[e] a finding that raises [a de-
2 DESCAMPS v. UNITED STATES
THOMAS, J., concurring in judgment
fendant’s] sentence beyond the sentence that could have
lawfully been imposed by reference to facts found by
the jury or admitted by the defendant.” James v. United
States, 550 U.S. 192, 231 (2007) (dissenting opinion)
(internal quotation marks omitted). Under the logic of
Apprendi, a court may not find facts about a prior convic-
tion when such findings increase the statutory maximum.
This is so whether a court is determining whether a
prior conviction was entered, see 530 U. S., at 520–521
(THOMAS, J., concurring), or attempting to discern what
facts were necessary to a prior conviction. See James, su-
pra, at 231–232 (THOMAS, J., dissenting). In either case,
the court is inappropriately finding a fact that must be
submitted to the jury because it “increases the penalty for
a crime beyond the prescribed statutory maximum.”
Apprendi, supra, at 490.
In light of the foregoing, it does not matter whether a
statute is “divisible” or “indivisible,” see ante, at 1–2, and
courts should not have to struggle with the contours of
the so-called “modified categorical” approach. Ibid. The
only reason Descamps’ ACCA enhancement is before us is
“because this Court has not yet reconsidered Almendarez-
Torres v. United States, 523 U.S. 224 (1998), which draws
an exception to the Apprendi line of cases for judicial
factfinding that concerns a defendant’s prior convictions.”
Shepard v. United States, 544 U.S. 13, 27 (2005)
(THOMAS, J., concurring in part and concurring in judg-
ment). Regardless of the framework adopted, judicial
factfinding increases the statutory maximum in violation
of the Sixth Amendment. However, because today’s opin-
ion at least limits the situations in which courts make
factual determinations about prior convictions, I concur in
the judgment.
Cite as: 570 U. S. ____ (2013) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–9540
_________________
MATTHEW ROBERT DESCAMPS, PETITIONER v.
UNITED STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
[June 20, 2013]
JUSTICE ALITO, dissenting.
The Court holds, on highly technical grounds, that no
California burglary conviction qualifies as a burglary
conviction under the Armed Career Criminal Act (ACCA),
18 U.S. C. §924(c). This is so, according to the Court,
because (1) burglary under California law is broader than
so-called “generic burglary”—unlawfully entering or re-
maining in a building with the intent to commit a crime;
(2) the California burglary statute is not “divisible”; and
(3) our “modified categorical approach” cannot be used in a
case involving an indivisible statute. Even when it is
apparent that a California burglary conviction was based
on what everyone imagines when the term “burglary” is
mentioned—e.g., breaking into a home to steal valuables—
that conviction, the Court holds, must be ignored.
I would give ACCA a more practical reading. When it is
clear that a defendant necessarily admitted or the jury
necessarily found that the defendant committed the ele-
ments of generic burglary, the conviction should qualify.
Petitioner’s burglary conviction meets that requirement,
and I would therefore affirm the decision of the Court of
Appeals.
I
Before petitioner was charged in the case now before us,
2 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
he had already compiled a criminal record that included
convictions in Washington State for assault and threaten-
ing to kill a judge, and convictions in California for rob-
bery and burglary. See App. 11a–12a; 466 Fed. Appx. 563,
565 (CA9 2012). After his release from custody for these
earlier crimes, petitioner fired a gun in the direction of a
man who supposedly owed him money for methampheta-
mine, and as a result, he was charged in federal court with
possession of a firearm by a convicted felon, in violation of
§922(g)(1). A jury found him guilty, and the District Court
imposed an enhanced sentence under ACCA because he
had the requisite number of previous convictions for “a
violent felony or a serious drug offense.” §924(e). ACCA
defines a “violent felony” to include a “burglary” that is
“punishable by imprisonment for a term exceeding one
year,” §924(e)(2)(B), and both the District Court and the
Court of Appeals found that petitioner’s California bur-
glary conviction fit this definition.
While the concept of a conviction for burglary might
seem simple, things have not worked out that way under
our case law. In Taylor v. United States, 495 U.S. 575,
599 (1990), we held that “burglary” under ACCA means
what we called “generic burglary,” that is, the “unlawful or
unprivileged entry into, or remaining in, a building or
structure, with intent to commit a crime.” Determining
whether a burglary conviction qualifies under this defini-
tion is easy if the elements set out in the state statute are
the same as or narrower than the elements of generic
burglary, see ibid., but what if the state offense is broader?
In that event, we have held, a federal court may sometimes
apply what we have termed the “modified categorical
approach,” that is, it may examine some items in the
state-court record, including charging documents, jury
instructions, and statements made at guilty plea proceed-
ings, to determine if the defendant was actually found to
have committed the elements of the generic offense. See
Cite as: 570 U. S. ____ (2013) 3
ALITO, J., dissenting
Shepard v. United States, 544 U.S. 13, 20 (2005); Taylor,
supra, at 602.
Petitioner argues that his 1978 conviction for burglary
under California Penal Code §459 does not qualify as a
burglary conviction for ACCA purposes because of the
particular way in which this provision is worded. Section
459 provides that a “person who enters” certain locations
“with intent to commit grand or petit larceny or any felony
is guilty of burglary.” Cal. Penal Code Ann. §459 (West
2010). This provision is broader than generic burglary in
two respects.
The first, which does not preclude application of the
modified categorical approach, concerns the place burglar-
ized. While generic burglary applies only to offenses
involving the entry of a building, the California provision
also reaches offenses involving the entry of some other
locations, see ibid. Under our cases, however, a federal
court considering whether to apply ACCA may determine,
based on an examination of certain relevant documents,
whether the conviction was actually based on the entry of
a building and, if it was, may impose an increased sen-
tence. See Johnson v. United States, 559 U.S. 133, 144
(2010); Nijhawan v. Holder, 557 U.S. 29, 35 (2009); Shep-
ard, supra, at 26.
The second variation is more consequential. Whereas
generic burglary requires an entry that is unlawful or
unprivileged, the California statute refers without qualifi-
cation to “[e]very person who enters.” §459. Petitioner
argues, and the Court agrees, that this discrepancy ren-
ders the modified categorical approach inapplicable to his
California burglary conviction.
II
The Court holds that “sentencing courts may not apply
the modified categorical approach when the crime of which
the defendant was convicted has a single, indivisible set of
4 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
elements.” Ante, at 2. Because the Court’s holding is
based on the distinction between “divisible” and “indivisi-
ble” statutes, it is important to identify precisely what this
taxonomy means.
My understanding is that a statute is divisible, in the
sense used by the Court, only if the offense in question
includes as separate elements all of the elements of the
generic offense. By an element, I understand the Court to
mean something on which a jury must agree by the vote
required to convict under the law of the applicable juris-
diction. See ante, at 14 (citing Richardson v. United
States, 526 U.S. 813, 817 (1999)). And although the Court
reserves decision on the question whether a sentencing
court may take authoritative judicial decisions into ac-
count in identifying the elements of a statute, see ante, at
20, I will assume that a sentencing court may do so. While
the elements of a criminal offense are generally set out in
the statutory text, courts sometimes find that unmen-
tioned elements are implicit. See, e.g., Neder v. United
States, 527 U.S. 1, 20 (1999) (holding that federal mail
fraud, wire fraud, and bank fraud statutes require proof of
materiality even though that element is not mentioned in
the statutory text). I cannot think of any reason why an
authoritative decision of this sort should be ignored, and
the Court has certainly not provided any. I therefore
proceed on the assumption that a statute is divisible if the
offense, as properly construed, has the requisite elements.
The Court’s holding that the modified categorical ap-
proach may be used only when a statute is divisible in this
sense is not required by ACCA or by our prior cases and
will cause serious practical problems.
A
Nothing in the text of ACCA mandates the Court’s
exclusive focus on the elements of an offense. ACCA
increases the sentence of a defendant who has “three
Cite as: 570 U. S. ____ (2013) 5
ALITO, J., dissenting
previous convictions . . . for a violent felony,” 18 U.S. C.
§924(e)(1) (emphasis added), and the Court claims that the
word “convictions” mandates a narrow, elements-based
inquiry, see ante, at 12. But “[i]n ordinary speech, when it
is said that a person was convicted of or for doing some-
thing, the ‘something’ may include facts that go beyond
the bare elements of the relevant criminal offense.”
Moncrieffe v. Holder, 569 U.S. ___, ___ (2013) (ALITO, J.,
dissenting) (slip op., at 10–11).
Nor is an exclusively elements-based inquiry mandated
by ACCA’s definition of a “violent felony” as “any crime . . .
that . . . is burglary,” §924(e)(2)(B)(ii). In drafting that
provision, Congress did not say “any crime that has the
elements of burglary.” Indeed, the fact that Congress
referred to “elements” elsewhere in the same subpara-
graph, see §924(e)(2)(B)(i) (defining “violent felony” to
mean any crime that “has as an element the use, attempted
use, or threatened use of physical force against the
person of another” (emphasis added)), but omitted any
reference to elements from §924(e)(2)(B)(ii) suggests, if
anything, that it did not intend to focus exclusively on
elements. Cf. Caraco Pharmaceutical Laboratories, Ltd. v.
Novo Nordisk A/S, 566 U.S. ___, ___ (2012) (slip op., at
14–15).
B
The Court says that our precedents require an elements-
based approach and accuses the Court of Appeals of
“flout[ing] our reasoning” in Taylor, Shepard, Nijhawan,
and Johnson, see ante, at 5–8, 14, but that charge is
unfounded. In at least three of those cases, the
Court thought that the modified categorical approach could
be used in relation to statutes that may not have been
divisible.
Shepard concerned prior convictions under two Massa-
chusetts burglary statutes that applied not only to the
entry of a “building” (as is the case with generic burglary)
6 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
but also to the entry of a “ship, vessel, or vehicle.” Mass.
Gen. Laws Ann., ch. 266, §16 (West 2000). See also §18;
544 U. S., at 17. And the Shepard Court did not think
that this feature of the Massachusetts statutes precluded
the application of the modified categorical approach. See
id., at 25–26; ante, at 6–7. See also Nijhawan, 557 U. S.,
at 35 (discussing Shepard).
In today’s decision, the Court assumes that “building”
and the other locations enumerated in the Massachusetts
statutes, such as “vessel,” were alternative elements, but
that is questionable. It is quite likely that the entry of a
building and the entry of a vessel were simply alternative
means of satisfying an element. See Commonwealth v.
Cabrera, 449 Mass. 825, 827, 874 N.E.2d 654, 657 (2007)
(“The elements of breaking and entering in the nighttime
with intent to commit a felony are (1) breaking and (2)
entering a building, ship, vessel or vehicle belonging
to another (3) at night, (4) with the intent to commit a
felony”). “[L]egislatures frequently enumerate alternative
means of committing a crime without intending to define
separate elements or separate crimes.” Schad v. Arizona,
501 U.S. 624, 636 (1991) (plurality). The feature that
distinguishes elements and means is the need for juror
agreement, see Richardson, supra, at 817, and therefore in
determining whether the entry of a building and the entry
of a vessel are elements or means, the critical question is
whether a jury would have to agree on the nature of the
place that a defendant entered.
A case that we decided earlier this Term illustrates why
“building” and “vessel” may have been means and not
separate elements. In Lozman v. Riviera Beach, 568 U. S.
___ (2013), we were required to determine whether a
“floating home” (a buoyant but not very sea-worthy dwell-
ing) was a “vessel.” Seven of us thought it was not; two of
us thought it might be. Compare id., at ___ (slip op. at 1),
with id., at ___ (slip op., at 12). (SOTOMAYOR, J., dissent-
Cite as: 570 U. S. ____ (2013) 7
ALITO, J., dissenting
ing). Suppose that a defendant in Massachusetts was
charged with breaking into a structure like the Lozman
floating home. In order to convict, would it be necessary
for the jury to agree whether this structure was a “build-
ing” or a “vessel”? If some jurors insisted it was a building
and others were convinced it was a vessel, would the jury
be hung? The Court’s answer is “yes.” According to the
Court, if a defendant had been charged with burglarizing
the Lozman floating home and this Court had been sitting
as the jury, the defendant would have escaped conviction
for burglary, no matter how strong the evidence, because
the “jury” could not agree on whether he burglarized a
building or a vessel.
I have not found a Massachusetts decision squarely on
point, but there is surely an argument that the Massachu-
setts Legislature did not want to demand juror agreement
on this question. In other words, there is a strong argu-
ment that entry of a “building” and entry of a “vessel” are
merely alternative means, not alternative elements. And
if that is so, the reasoning in Shepard undermines the
Court’s argument that the modified categorical approach
focuses solely on elements and not on conduct.
Johnson, like Shepard, involved a statute that may have
set out alternative means, rather than alternative ele-
ments. Under the Florida statute involved in that case, a
battery occurs when a person either “1. [a]ctually and
intentionally touches or strikes another person against the
will of the other; or 2. [i]ntentionally causes bodily harm
to another person.” Fla. Stat. §784.03(1)(a) (2010). It is a
distinct possibility (one not foreclosed by any Florida
decision of which I am aware) that a conviction under this
provision does not require juror agreement as to whether a
defendant firmly touched or lightly struck the victim.
Nevertheless, in Johnson, we had no difficulty concluding
8 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
that the modified categorical approach could be applied.1
See 559 U. S., at 137.2
Far from mandating the Court’s approach, these deci-
sions support a practical understanding of the modified
categorical approach. Thus, in Shepard, we observed that
the factual circumstances of a defendant’s prior conviction
may be relevant to determining whether it qualifies as a
violent felony under ACCA. See 544 U. S., at 20–21
(“With such material in a pleaded case, a later court could
generally tell whether the plea had ‘necessarily’ rested on
the fact identifying the burglary as generic, just as the
details of instructions could support that conclusion in the
——————
1 However, because the Shepard documents did not reveal whether
Johnson had been found to have touched or struck, we had to determine
whether the relatively innocuous phrase—“[a]ctually and intentionally
touch[ing]” another person—constituted physical force for purposes of
§924(e)(2)(B)(i). See Johnson, 559 U. S., at 137.
2 The remaining case, Taylor v. United States, 495 U.S. 575 (1990),
may also have involved a statute that was not divisible, but the situa-
tion is less clear. There, the defendant had several Missouri burglary
convictions, and Missouri had several different burglary provisions in
effect at the time in question. See id., at 578, n. 1. The particular
provision involved in each of those cases was not certain. Ibid. At least
one of those provisions, however, may not have been divisible. That
provision, Mo. Rev. Stat. §560.070 (1969) (repealed), applied not only to
buildings but also to “any booth or tent,” “any boat or vessel,” or a
“railroad car.” It is not entirely clear whether a Missouri court would
have required jurors to agree on a particular choice from this list. In
State v. Vandergriff, 403 S.W.2d 579, 581 (Mo. 1966), the Missouri
Supreme Court held that an information was deficient because it
“omitted a description of the type of building that might be burglarized
as defined by §560.070, and thereby omitted an essential element of 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.
Cite as: 570 U. S. ____ (2013) 9
ALITO, J., dissenting
jury case, or the details of a generically limited charging
document would do in any sort of case” (emphasis added;
citation omitted)); id., at 24 (plurality opinion) (“Develop-
ments in the law since Taylor . . . provide a further reason
to adhere to the demanding requirement that . . . a prior
conviction ‘necessarily’ involved (and a prior plea neces-
sarily admitted) facts equating to generic burglary” (em-
phasis added)); id., at 25 (noting that, in the context of a
nongeneric burglary statute, unless the charging docu-
ments “narro[w] the charge to generic limits, the only
certainty of a generic finding lies in jury instructions, or
bench-trial findings and rulings, or (in a pleaded case) in
the defendant’s own admissions or accepted findings of
fact confirming the factual basis for a valid plea” (empha-
sis added)). And in Nijhawan, we departed from the
categorical approach altogether and instead applied a
“circumstance-specific” approach. See 557 U. S., at 36,
38. If anything, then, Nijhawan undermines the major-
ity’s position that rigid adherence to elements is always
required.
C
The Court fears that application of the modified categor-
ical approach to statutes such as §459 would be unfair to
defendants, who “often ha[ve] little incentive to contest
facts that are not elements of the charged offense” and
“may not wish to irk the prosecutor or court by squabbling
about superfluous factual allegations.” Ante, at 15. This
argument attributes to criminal defendants and their
attorneys a degree of timidity that may not be realistic.
But in any event, even if a defendant does not think it
worthwhile to “squabbl[e]” about insignificant factual
allegations, a defendant clearly has an incentive to dispute
allegations that may have a bearing on his sentence. And
that will often be the case when alternative elements or
means suggest different degrees of culpability. Cf. Cal.
10 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
Penal Code Ann. §460 (providing that burglary of certain
inhabited locations enumerated in §459 is punishable in
the first degree, and that burglary of all other locations is
punishable in the second degree).
D
The Court’s approach, I must concede, does have one
benefit: It provides an extra measure of assurance that a
burglary conviction will not be counted as an ACCA predi-
cate unless the defendant, if he went to trial, was actually
found by a jury to have committed the elements of the
generic offense. But this extra bit of assurance will gener-
ally be quite modest at best.
To see why this is so, compare what would happen
under an indivisible burglary statute that simply requires
entry invading a possessory right, and a divisible statute
that has the following two alternative elements: (1) entry
by trespass and (2) entry by invitation but with an undis-
closed criminal intent. Under the former statute, the jury
would be required to agree only that the defendant invaded
a possessory right when entering the place in question,
and therefore it would be possible for the jury to convict
even if some jurors thought that the defendant entered by
trespassing while others thought that he entered by invi-
tation but with an undisclosed criminal intent. Under the
latter statute, by contrast, the jury would have to agree
either that he trespassed or that he entered by invitation
but with an undisclosed criminal intent.
This requirement of unanimity would be of some practi-
cal value only if the evidence in a case pointed to both
possibilities, and in a great many cases that will not be so.
In cases prosecuted under the California burglary statute,
I suspect, the evidence generally points either to a tres-
passory entry, typically involving breaking into a building
or other covered place, or to an entry by invitation but
with an undisclosed criminal intent (in many cases, shop-
Cite as: 570 U. S. ____ (2013) 11
ALITO, J., dissenting
lifting). Cases in which the evidence suggests that the
defendant might have done either are probably not com-
mon. And in cases where there is evidence supporting
both theories, the presence of a divisible statute contain-
ing alternative elements will not solve the problem: A
guilty verdict will not reveal the alternative on which the
jury agreed unless the jury was asked to return a special
verdict, something that is not generally favored in crimi-
nal cases. See 6 LaFave §24.10(a), at 543–544.
In cases that end with a guilty plea—and most do—the
benefit of divisibility is even 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 835–840 (3d
ed. 2007 and Supp. 2011–2012), and the proffer of a factual
basis will generally focus exclusively on one of the
alternative elements.
The Court nevertheless suggests that the extra modi-
cum of assurance provided in cases involving divisible
statutes is needed to prevent violations of the Sixth
Amendment jury trial right, ante, at 13–15, but I disagree.
So long as a judge applying ACCA is determining, not
what the defendant did when the burglary in question was
committed, but what the jury in that case necessarily
found or what the defendant, in pleading guilty, necessarily
admitted, the jury trial right is not infringed. See
Almendarez-Torres v. United States, 523 U.S. 224 (1998).
When the modified categorical approach is used to decide
whether “a jury was actually required to find all the ele-
ments of [a] generic [offense],” the defendant has already
enjoyed his Sixth Amendment right to a jury determina-
tion of those elements. Taylor, 495 U. S., at 602.
III
While producing very modest benefits at most, the
Court’s holding will create several serious problems.
12 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
A
Determining whether a statute is divisible will often be
harder than the Court acknowledges. What I have said
about the statutes involved in Shepard and Johnson illus-
trates this point. The Court assumes that those statutes
were divisible, but as I have explained, it is possible that
they were not. See supra, at 5–7.
To determine whether a statute contains alternative
elements, as opposed to merely alternative means of satis-
fying an element, a court called upon to apply ACCA will
be required to look beyond the text of the statute, which
may be deceptive. Take, for example, Michigan Compiled
Laws Annotated §750.82(1) (West 2004), which criminal-
izes assault with “a gun, revolver, pistol, knife, iron bar,
club, brass knuckles, or other dangerous weapon.” The
Court seems to assume that a statute like this enumerates
alternative elements, ante, at 17–18, but the Michigan
courts have held otherwise. Under Michigan law, the
elements of §750.82(1) are “(1) an assault, (2) with a dan-
gerous weapon, and (3) with the intent to injure or place
the victim in reasonable apprehension of an immediate
battery.” People v. Avant, 235 Mich. App. 499, 505, 597
N.W.2d 864, 869 (1999). Although the statute lists nu-
merous types of weapons, the particular type of weapon is
not itself an element that the prosecution must prove
beyond a reasonable doubt. Instead, the list of weapons in
the statute merely enumerates alternative means of com-
mitting the crime.3
Even if a federal court applying ACCA discovers a state-
——————
3 The board game Clue, to which the Court refers, see ante, at 18,
does not provide sound legal guidance. In that game, it matters whether
Colonel Mustard bashed in the victim’s head with a candlestick,
wrench, or lead pipe. But in real life, the colonel would almost certainly
not escape conviction simply because the jury was unable to agree on
the particular type of blunt instrument that he used to commit the
murder.
Cite as: 570 U. S. ____ (2013) 13
ALITO, J., dissenting
court decision holding that a particular fact must be al-
leged in a charging document, its research is not at an
end. Charging documents must generally include factual
allegations that go beyond the bare elements of the
crime—specifically, at least enough detail to permit the
defendant to mount a defense. See 5 LaFave §19.3(b), at
276. And some jurisdictions require fairly specific factual
allegations. See, e.g., N. Y. Crim. Proc. Law Ann. §200.50
(West 2007) (enumerating detailed requirements for in-
dictment); People v. Swanson, 308 Ill. App. 3d 708, 712,
721 N.E.2d 630, 633 (1999) (vacating conviction for dis-
orderly conduct for submitting a false police report be-
cause information “d[id] not describe with particularity
the time, date, or location of the alleged domestic battery
and the acts comprising the battery . . . [or] the statement
that was falsely reported”); Edwards v. State, 379 So. 2d
336, 338 (Ala. Crim. App. 1979) (it is insufficient for an
indictment for robbery to allege the amount of money
taken; it “must aver the denomination of the money taken
or that the particular denomination is unknown to the
grand jury”). Thus, the mere fact that state law requires a
particular fact to be alleged in a charging document does
not mean that this fact must be found by a jury or admit-
ted by the defendant.
The only way to be sure whether particular items are
alternative elements or simply alternative means of satis-
fying an element may be to find cases concerning the
correctness of jury instructions that treat the items one way
or the other. And such cases may not arise frequently.
One of the Court’s reasons for adopting the modified cate-
gorical approach was to simplify the work of ACCA
courts, see Shepard, 544 U. S., at 20; Taylor, 495 U. S., at
601, but the Court’s holding today will not serve that end.
B
The Court’s holding will also frustrate fundamental
14 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
ACCA objectives. We have repeatedly recognized that
Congress enacted ACCA to ensure (1) that violent, dan-
gerous recidivists would be subject to enhanced penalties
and (2) that those enhanced penalties would be applied
uniformly, regardless of state-law variations. See, e.g., id.,
at 587–589. See also id., at 582 (“ ‘[I]n terms of fundamen-
tal fairness, the Act should ensure, to the extent that it is
consistent with the prerogatives of the States in defining
their own offenses, that the same type of conduct is pun-
ishable on the Federal level in all cases’ ” (quoting S. Rep.
No. 98–190, p. 20 (1983)); 495 U. S., at 591 (rejecting
disparate results across states based on label given by
State to a particular crime).
The Court’s holding will hamper the achievement of
these objectives by artificially limiting ACCA’s reach and
treating similar convictions differently based solely on the
vagaries of state law. Defendants convicted of the ele-
ments of generic burglary in California will not be subject
to ACCA, but defendants who engage in exactly the same
behavior in, say, Virginia, will fall within ACCA’s reach.
See Va. Code Ann. §18.2–90 (Lexis 2009).
I would avoid these problems by applying the modified
categorical approach to §459—and any other similar bur-
glary statute from another State—and would ask whether
the relevant portions of the state record clearly show that
the jury necessarily found, or the defendant necessarily
admitted, the elements of generic burglary. If the state-
court record is inconclusive, then the conviction should not
count. But where the record is clear, I see no reason for
granting a special dispensation.
IV
When the modified categorical approach is applied to
petitioner’s conviction, it is clear that he “necessarily
admitted”—and therefore was convicted for committing—
the elements of generic burglary: the unlawful or unprivi-
Cite as: 570 U. S. ____ (2013) 15
ALITO, J., dissenting
leged entry of a building with the intent to commit a
crime.
Both the complaint and information alleged that peti-
tioner “unlawfully and feloniously enter[ed]” a building
(the “CentroMart”) “with the intent to commit theft there-
in.” App. 14a–17a. When the trial court inquired into the
factual basis for petitioner’s plea, the prosecutor stated
that petitioner’s crime involved “the breaking and entering
of a grocery store.” Id., at 25a. Neither petitioner nor his
attorney voiced any objection.4 Ibid. In order to accept
petitioner’s plea, the trial court was required under Cali-
fornia law to ensure that the plea had a factual basis, see
Cal. Penal Code Ann. §1192.5 (1978); App. 26a, and we
must presume that the plea proceedings were conducted in
a regular manner, see Parke v. Raley, 506 U.S. 20, 29–30
(1992). The unmistakable inference arising from the plea
transcript is that the trial judge—quite reasonably—
understood petitioner and his attorney to assent to the
factual basis provided by the prosecutor. Both the District
Court and the Court of Appeals concluded that petitioner
had admitted and, as a practical matter, was convicted for
having committed the elements of generic burglary, and
we did not agree to review that fact-bound determination,
see 567 U. S. ___ (2012) (granting certiorari “limited to
Question 1 presented by the petition”).
Even if that determination is reviewed, however, the
lower courts’ conclusion should be sustained. Under the
California burglary statute, as interpreted by the State
——————
4 The Ninth Circuit has held that a court applying the modified cate-
gorical approach may rely on a prosecutor’s statement as to the factual
basis for a guilty plea when that statement is offered on the record in
the defendant’s presence and the defendant does not object. United
States v. Hernandez-Hernandez, 431 F.3d 1212, 1219 (2005). Petitioner
has not challenged the Ninth Circuit’s rule, and that issue is not
within the scope of the question on which we granted certiorari.
Accordingly, I would apply it for purposes of this case.
16 DESCAMPS v. UNITED STATES
ALITO, J., dissenting
Supreme Court, a defendant must either (a) commit a
trespass in entering the location in question or (b) enter in
violation of some other possessory right. See People v.
Gauze, 15 Cal. 3d 709, 713–714, 542 P.2d 1365, 1367
(1975).5
In this case, the judge who accepted petitioner’s guilty
plea must have relied on petitioner’s implicit admission
that he “broke” into the store, for if petitioner had admit-
ted only that he entered the store, the judge would not
have been able to assess whether he had invaded a posses-
sory right. Nor would an admission to merely “entering”
the store have permitted the judge to assess whether
petitioner entered with the intent to commit a crime;
petitioner’s admission to “breaking” was therefore critical
to that element, as well. Cf. Black’s Law Dictionary 236
(rev. 4th ed. 1968) (“Breaking” denotes 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
exerting force to gain an entrance, with the intent to
commit a felony”).
We have explained that burglary under §924(e) means
“an unlawful or unprivileged entry into, or remaining in, a
building or other structure, with intent to commit a
crime.” Taylor, 495 U. S., at 598. Based on petitioner’s
guilty plea and the Shepard documents, it is clear that
petitioner necessarily admitted the elements of generic
burglary. He unlawfully entered a building with the
intent to commit a crime. Accordingly, I would hold that
——————
5 The majority suggests that California law is ambiguous as to this
requirement, see ante, at 20, n. 5, but any confusion appears to have
arisen after petitioner’s 1978 conviction and is therefore irrelevant for
purposes of this case. Cf. McNeill v. United States, 563 U.S. ___, ___
(2011) (slip op., at 3) (“The only way to answer [ACCA’s] backward-
looking question [whether a previous conviction was for a serious
drug offense] is to consult the law that applied at the time of that
conviction”).
Cite as: 570 U. S. ____ (2013) 17
ALITO, J., dissenting
petitioner’s conviction under §459 qualifies as a conviction
for “burglary” under §924(e).
For these reasons, I would affirm the decision of the
Court of Appeals, and I therefore respectfully dissent.