On Friday, August 31, the Supreme Court granted certiorari in Descamps v. United States
(11-9540), to determine whether a state conviction for burglary that is missing an element of the generic crime may be subject to Taylor's
modified categorical approach for the purposes of enhancing a sentence under ACCA.
A summary of the case by SCOTUSblog states:
The case involves a Colville, Wash., man, Matthew Robert Descamps, who was convicted of the federal crime of being a felon who had a gun illegally. He was sentenced under that Act to 262 months in prison, based in part on a 1978 conviction — a guilty plea — for the burglary of a grocery store in California, treating that conviction as one for a “violent felony.”
In his petition, Descamps’s lawyers argued that the burglary conviction should not count in the sentencing calculation, because the California law at issue does not include the element of entering or remaining illegally at the site of the alleged crime. That omission, the petition claimed, means that the crime does not fit the definition of “generic burglary.” The Ninth Circuit, however, supplied that element, finding that burglary under the California law at issue in Descamps’s case is broader than “generic burglary,” and thus counts under the ACCA.
The U.S. Solicitor General had urged the Court not to hear Descamps’s case, even though the government conceded that there is some disagreement among lower courts on when a federal court may supply a missing element of a crime, using what is technically called the “modified categorical approach.” The Solicitor General said that conflict predates a definitive ruling on the issue by the Ninth Circuit, so Supreme Court review at this point would be premature.