United States v. Aguila-Montes De Oca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-50170

v.

 D.C. No.

CR-04-02175-RTB

GUILLERMO AGUILA-MONTES DE

OCA, OPINION

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

March 25, 2010—San Francisco, California

Filed August 11, 2011

Before: Alex Kozinski, Chief Judge, Pamela Ann Rymer,

Barry G. Silverman, William A. Fletcher, Ronald M. Gould,

Marsha S. Berzon, Johnnie B. Rawlinson, Jay S. Bybee,

Consuelo M. Callahan, Milan D. Smith, Jr. and

N. Randy Smith, Circuit Judges.

Per Curiam Opinion;

Opinion by Judge Bybee;

Concurrence by Judge Berzon;

Partial Concurrence and Partial Dissent by Judge Rawlinson

10575

UNITED STATES v. AGUILA-MONTES DE OCA 10579

COUNSEL

Steven F. Hubachek and Vincent J. Brunkow, Federal

Defenders of San Diego, Inc., San Diego, California, for the

defendant-appellant.

Mark R. Rehe, Assistant U.S. Attorney, Criminal Division,

San Diego, California, for the plaintiff-appellee.

OPINION

PER CURIAM:

A majority of the en banc court (Judge Bybee, joined by

Judges Rymer, Silverman, Gould, Rawlinson and Callahan)

overrules our prior holding in Navarro-Lopez v. Gonzales,

503 F.3d 1063, 1073 (9th Cir. 2007) (en banc), that the modi-

fied categorical approach doesn’t apply “[w]hen the crime of

conviction is missing an element of the generic crime alto-

gether.”

A different majority (Judge Bybee, joined by Chief Judge

Kozinski and Judges Rymer, W. Fletcher, Berzon, M. Smith

and N.R. Smith) overrules our prior decisions to the extent

they hold that a conviction under California Penal Code § 459

qualifies as a generic burglary conviction if the defendant

pleaded guilty to entering a building “unlawfully” or a jury

found the defendant guilty as charged in an indictment recit-

10580 UNITED STATES v. AGUILA-MONTES DE OCA

ing that allegation. This majority concludes that Aguila-

Montes’s prior conviction under California Penal Code § 459

cannot be used to enhance his sentence.

The district court’s sentence is VACATED, and the case is

REMANDED to the original three-judge panel for consider-

ation of the remaining issues raised on appeal.

BYBEE, Circuit Judge:

We granted rehearing in this case to reconsider the rule we

adopted in Navarro-Lopez v. Gonzales, 503 F.3d 1063 (9th

Cir. 2007) (en banc), to govern application of the modified

categorical approach.

The categorical and modified categorical frameworks, first

outlined by the Supreme Court in Taylor v. United States, 495

U.S. 575 (1990), establish the rules by which the government

may use prior state convictions to enhance certain federal sen-

tences and to remove certain aliens. In the twenty years since

Taylor, we have struggled to understand the contours of the

Supreme Court’s framework. Indeed, over the past decade,

perhaps no other area of the law has demanded more of our

resources. See, e.g., United States v. Strickland, 601 F.3d 963,

967-71 (9th Cir. 2010) (en banc); Marmolejo-Campos v.

Holder, 558 F.3d 903, 912-13 (9th Cir. 2009) (en banc);

United States v. Snellenberger, 548 F.3d 699, 700-02 (9th Cir.

2008) (en banc) (per curiam); Estrada-Espinoza v. Mukasey,

546 F.3d 1147, 1159-60 (9th Cir. 2008) (en banc); United

States v. Vidal, 504 F.3d 1072, 1086-90 (9th Cir. 2007) (en

banc); Navarro-Lopez, 503 F.3d at 1073; United States v. Gri-

sel, 488 F.3d 844, 847-48, 851-52 (9th Cir. 2007) (en banc);

Fernandez-Ruiz v. Gonzales, 466 F.3d 1121, 1132-35 (9th

Cir. 2006) (en banc); United States v. Corona-Sanchez, 291

F.3d 1201, 1211-13 (9th Cir. 2002) (en banc), superseded by

UNITED STATES v. AGUILA-MONTES DE OCA 10581

U.S. SENTENCING GUIDELINES MANUAL (“U.S.S.G.”) § 2L1.2

cmt. n.4 (2002).

In Navarro-Lopez, we stated that “[t]he modified categori-

cal approach . . . applies when the particular elements in the

crime of conviction are broader than the generic crime.” 503

F.3d at 1073. We then declared:

When the crime of conviction is missing an element

of the generic crime altogether, we can never find

that “a jury was actually required to find all the ele-

ments of” the generic crime. See Li v. Ashcroft, 389

F.3d 892, 899-901 (9th Cir. 2004) (Kozinski, J., con-

curring) (providing examples).

Id.

Today, we conclude that Navarro-Lopez’s “missing ele-

ment” rule is not required by the Supreme Court’s modified

categorical approach established in Taylor. We overrule that

portion of Navarro-Lopez. Applying the modified categorical

approach to this case, we nevertheless agree with the panel’s

determination that Defendant-Appellant Guillermo Aguila-

Montes de Oca’s (“Aguila”) conviction under California

Penal Code § 459 does not qualify as a “crime of violence”

under either the categorical or modified categorical approach.

Accordingly, we vacate the district court’s sentence and

remand to the original three-judge panel for consideration of

the remaining issues Aguila raised on appeal.

I

Aguila is a native and citizen of Mexico. On July 5, 2004,

Aguila attempted to enter the United States at the San Ysidro,

California, point of entry. Customs officers determined by

computer that Aguila had been previously deported from the

United States, and arrested him. The government charged

Aguila in the Southern District of California with illegal reen-

10582 UNITED STATES v. AGUILA-MONTES DE OCA

try after deportation, in violation of 8 U.S.C. § 1326. A jury

convicted him, and the district court sentenced Aguila to 120

months in prison and two years of supervised release.

During sentencing, the district court determined that, in

1988, Aguila had pled guilty to first degree residential bur-

glary, in violation of California Penal Code § 459. That stat-

ute punishes “[e]very person who enters [various structures]

. . . with intent to commit grand or petit larceny or any felo-

ny.” CAL. PENAL CODE § 459. Based on this prior offense, the

district court enhanced Aguila’s sentence under U.S.S.G.

§ 2L1.2, which provides a sixteen-level enhancement for

defendants previously deported after “a conviction for a fel-

ony that is . . . a crime of violence.” U.S.S.G.

§ 2L1.2(b)(1)(A). The Guidelines’ Application Notes specifi-

cally define “crime of violence” to include “burglary of a

dwelling.” Id. § 2L1.2 cmt. n.1(B)(iii). The district court held

that Aguila’s California burglary conviction qualified as “bur-

glary of a dwelling” and accordingly enhanced his sentence

by sixteen levels.

Aguila appealed his sentence,1 and we first affirmed the

district court’s sentence but then withdrew that opinion on

rehearing and reversed. See United States v. Aguila-Montes de

Oca, 523 F.3d 1071 (9th Cir. 2008) (“Aguila I”), withdrawn

and replaced by United States v. Aguila-Montes de Oca, 553

F.3d 1229 (9th Cir. 2009) (“Aguila II”). In Aguila I, applying

the two-part approach outlined in Taylor, we first held that the

California burglary statute is categorically broader than the

generic definition of “burglary of a dwelling” because the

1

Aguila raised several other issues before the Aguila I panel, which

were resolved against Aguila in a separate, unpublished memorandum dis-

position. See United States v. Aguila-Montes de Oca, 275 Fed. Appx. 707

(9th Cir. 2008). Because the government’s Petition for Rehearing and Sug-

gestion for Rehearing En Banc, as well as Aguila’s response to that peti-

tion, discussed only the issue of the sentence enhancement, we address

only that issue and leave the other issues to the original three-judge panel

to be resolved following our decision here.

UNITED STATES v. AGUILA-MONTES DE OCA 10583

statute “does not require that the entry be unlawful or unprivi-

leged.” Aguila I, 523 F.3d at 1076 (quotation marks omitted).

In a footnote, we then distinguished Navarro-Lopez based on

the reasoning that, in Aguila’s case, “both the crime of con-

viction and the generic crime have the same basic elements.”

Id. at 1077 n.2 (citing People v. Davis, 958 P.2d 1083, 1085

(Cal. 1998) (describing the elements of California’s burglary

offense as (1) entry, (2) into any building or other listed struc-

ture, (3) with intent to commit larceny or any felony)).

Although “generic burglary also requires that the entry be

unlawful or unprivileged,” we stated, “[t]his d[id] not . . .

create an additional element, but merely describe[d] one type

of entry among many possible entries, including unprivileged,

forcible and unauthorized entries.” Id. (quotation marks omit-

ted). Having determined that the California statute was not

“missing an element” of the generic crime, Navarro-Lopez,

503 F.3d at 1073, we applied the modified categorical

approach and concluded that because the documents of con-

viction, see Shepard v. United States, 544 U.S. 13, 16 (2005),

“reveal[ed] that [Aguila’s] entry was unlawful,” his prior

offense “satisfie[d] the generic definition of burglary of a

dwelling.” Aguila I, 523 F.3d at 1078.

One year later, we withdrew our Aguila I opinion in Aguila

II, and relied entirely on Navarro-Lopez to reverse and

remand to the district court to impose a sentence without the

sixteen-level enhancement. Aguila II, 553 F.3d at 1234. We

did not alter Aguila I’s analysis with respect to the categorical

approach. Compare id. at 1233, with Aguila I, 523 F.3d at

1075-76. However, unlike in Aguila I, we determined that

generic burglary requires as an element that the entry be “un-

lawful or unprivileged.” See Aguila II, 553 F.3d at 1234

(characterizing generic burglary as requiring “(1) entry, (2)

which is unlawful or unprivileged, (3) into a building or struc-

ture, (4) with intent to commit a crime”). In contrast, we

noted, the California statute requires only “(1) entry, (2) into

any building or other listed structure, (3) with intent to com-

mit larceny or any felony.” Id. We therefore held that, under

10584 UNITED STATES v. AGUILA-MONTES DE OCA

Navarro-Lopez, we could “not apply a modified categorical

approach . . . because the state crime of which Aguila-Montes

was convicted lacks an element of the generic crime of the

Guidelines[,] . . . namely, that the entry must have been

‘unlawful or unprivileged.’ ” Id. at 1233-34. Accordingly, we

held that the district court erred in characterizing Aguila’s

prior offense as a “crime of violence.” Id. at 1234.2

On a vote of the majority of nonrecused active judges on

our court, we decided to rehear this case en banc.

II

We first review the complex legal framework governing

this case, beginning with the relevant Guidelines, the Supreme

Court decisions preceding Navarro-Lopez, and ending with

our controversial Navarro-Lopez decision.

A

Section 2L1.2 of the Guidelines addresses sentencing for

the crime of unlawfully entering or remaining in the United

States. It provides a sixteen-level enhancement “[i]f the

defendant previously was deported, or unlawfully remained in

the United States, after . . . a conviction for a felony that is

. . . a crime of violence . . . .” U.S.S.G. § 2L1.2(b)(1). The

Guidelines’ Application Notes define “crime of violence” to

include “burglary of a dwelling.” Id. § 2L1.2 cmt. n.1(B)(iii).

“The sentencing judge’s application of the Sentencing Guide-

lines, including whether a prior conviction is a ‘crime of vio-

lence’ . . . for the purposes of U.S.S.G. § 2L1.2, is reviewed

de novo.” United States v. Rodriguez-Rodriguez, 393 F.3d

849, 856 (9th Cir. 2005).

2

Judge Gould dissented, arguing that “the application of Navarro-Lopez

. . . to the California burglary statute here is inconsistent with the scope

intended by the United States Supreme Court for its doctrine of modified

categorical analysis, as outlined in Taylor.” Id. (Gould, J., dissenting).

UNITED STATES v. AGUILA-MONTES DE OCA 10585

B

[1] To determine whether a prior conviction qualifies as a

“crime of violence” under the Guidelines, we use the two-part

analytical approach outlined by the Supreme Court in Taylor.

See United States v. Wenner, 351 F.3d 969, 972 (9th Cir.

2003). In Taylor, the Court addressed the meaning of the

word “burglary” in the Armed Career Criminal Act

(“ACCA”), which provides a sentence enhancement for a

defendant convicted of being a felon in possession of a fire-

arm who “has three previous convictions by any court . . . for

a violent felony,” 18 U.S.C. § 924(e)(1), and defines “violent

felony” to include, among other things, “burglary,” id.

§ 924(e)(2)(B)(ii).

The Court determined that “ ‘burglary’ in § 924(e) must

have some uniform definition independent of the labels

employed by various States’ criminal codes,” in order to “pro-

tect[ ] offenders from the unfairness of having enhancement

depend upon the label employed by the State of conviction.”

Taylor, 495 U.S. at 589, 592. After discussing the text and

legislative history of the statute, the Court found “that Con-

gress meant . . . ‘burglary’ [in] the generic sense in which the

term is now used in the criminal codes of most States.” Id. at

598. The Court held that this “generic” definition of burglary

“ha[s] the basic elements of unlawful or unprivileged entry

into, or remaining in, a building or structure, with intent to

commit a crime.” Id. at 599.

This determination left the Court with “the problem of

applying this conclusion to cases in which the state statute

under which a defendant is convicted varies from the generic

definition of ‘burglary’ ”—for example, when a state burglary

statute “eliminat[es] the requirement that the entry be unlaw-

ful or . . . includ[es] places, such as automobiles and vending

machines, other than buildings.” Id. The Court “had to con-

sider how a later court sentencing under the ACCA might tell

whether a prior burglary conviction was for the generic

10586 UNITED STATES v. AGUILA-MONTES DE OCA

offense.” Shepard, 544 U.S. at 17. At the same time, the

Court was concerned that if this determination was made

based on the particular facts underlying the defendant’s prior

conviction, the result would be a series of time-consuming

“mini-sentencing-trials featuring opposing witnesses perusing

lengthy transcripts of prior proceedings.” Id. at 36 (O’Connor,

J., dissenting) (citing Taylor, 495 U.S. at 601).

[2] The Taylor Court’s solution to this problem was what

it referred to as the “categorical approach,” in which a court

looks “not to the particular facts underlying [the defendant’s

prior] conviction[ ],” but “only to the fact of conviction and

the statutory definition of the prior offense,” in order to deter-

mine whether the state statute could potentially criminalize

conduct that would not qualify as a “violent felony.” Taylor,

495 U.S. at 600, 602; see also Begay v. United States, 553

U.S. 137, 141 (2008) (observing that, under the categorical

approach, the offense is to be considered “generically, that is

to say, . . . in terms of how the law defines the offense and

not in terms of how an individual offender might have com-

mitted it on a particular occasion”).

[3] The Court then held that “[t]his categorical approach,

however, may permit the sentencing court to go beyond the

mere fact of conviction in a narrow range of cases where a

jury was actually required to find all the elements of generic

burglary.” Taylor, 495 U.S. at 602 (emphasis added). Under

this analysis, which the Court later called a “modified cate-

gorical approach,” Nijhawan v. Holder, 129 S.Ct. 2294, 2302

(2009), if “the charging paper and jury instructions actually

required the jury to find all the elements of generic burglary

in order to convict the defendant,” then a sentence enhance-

ment under § 924(e) would be appropriate, Taylor, 495 U.S.

at 602.

Taylor itself dealt with a conviction in a jury trial, but in

Shepard, the Court held that Taylor’s framework applies to

guilty pleas as well. See Shepard, 544 U.S. at 19. In Shepard,

UNITED STATES v. AGUILA-MONTES DE OCA 10587

the Court also elaborated on what documents a court may

consider under the modified categorical approach in order to

determine whether a guilty plea to an offense defined by a

nongeneric statute “necessarily admitted elements of the

generic offense.” Id. at 26. The Court rejected the govern-

ment’s contention that the sentencing court may look at police

reports and complaint applications to determine what a guilty

plea “necessarily admitted,” and held that, under the modified

categorical approach, a court may look only to: (1) charging

documents; (2) the terms of a written plea agreement; (3) tran-

scripts of a plea colloquy between a judge and the defendant

in which the factual basis for the plea was confirmed by the

defendant; (4) jury instructions; (5) any explicit factual find-

ing by the trial judge to which the defendant assented; and (6)

some comparable judicial record of this information. See id.

at 16, 26; id. at 25-26 (plurality opinion). A plurality of the

Court expressed concern that “allowing a broader evidentiary

enquiry” would permit the sentencing court to make “disputed

finding[s] of fact,” thus raising concerns under Apprendi v.

New Jersey, 530 U.S. 466 (2000). Shepard, 544 U.S. at 24-25.

The plurality stated that these concerns “counsel[ ] us to limit

the scope of judicial factfinding on the disputed generic char-

acter of a prior plea” to those documents reflecting what the

jury found (including “a charging document that narrows the

charge to generic limits” and jury instructions), bench trial

findings and rulings, or “the defendant’s own admissions or

accepted findings of fact confirming the factual basis for a

valid plea.” Id. at 25 (plurality opinion).

The Court more recently developed the Taylor/Shepard

framework in Nijhawan v. Holder, 129 S. Ct. 2294 (2009),

and Johnson v. United States, 130 S. Ct. 1265 (2010). In

Nijhawan, the court interpreted 8 U.S.C. § 1101(a)(43)(M)(i),

which identified as an aggravated felony “an offense that . . .

involves fraud or deceit in which the loss to the victim or vic-

tims exceeds $10,000.” 129 S. Ct. at 2297. At issue was

whether the $10,000 threshold referred to an element of a

fraud statute or the factual circumstances surrounding a spe-

10588 UNITED STATES v. AGUILA-MONTES DE OCA

cific fraud conviction. Id. at 2298. The Court held that the

provision “calls for a ‘circumstance-specific,’ not a ‘categori-

cal,’ interpretation,” id. at 2300, and also rejected application

of the modified categorical approach, holding that in deter-

mining whether a previous conviction met the $10,000 thresh-

old, the immigration court did not need to observe the

evidentiary limitations articulated in Shepard, id. at 2303. In

effect, Nijhawan suggested that statutes like

§ 1101(a)(43)(M)(i) could be applied in one of three ways,

depending on how the statute was interpreted: using the cate-

gorical approach or modified categorical approach to the

extent the statute refers to generic crimes, and using a fact-

specific approach when the statute refers to “the specific cir-

cumstances in which a crime was committed.” 129 S. Ct. at

2301.

In Johnson, the Court confronted the question of whether

a Florida battery conviction constituted a violent felony under

18 U.S.C. § 922(g)(1)(i), which encompasses “any crime pun-

ishable by imprisonment for a term exceeding one year . . .

[that] has as an element the use, attempted use, or threatened

use of physical force against the person of another.” 130 S.

Ct. at 1268. For the most part, the opinion focuses on the

meaning of the term “physical force.” See id. at 1270-73.

However, the Court mentioned the modified categorical

approach in response to the government’s concern that the

Court’s narrow interpretation of “physical force” would

undermine the government’s ability to obtain removal based

on battery convictions. Id. at 1273. The Court reminded the

government that it could rely on the modified categorical

approach in cases where “the law under which the defendant

has been convicted contains statutory phrases that cover sev-

eral different generic crimes, some of which require violent

force and some of which do not.” Id. But in such cases, a

court may consult the trial record “to determine which statu-

tory phrase was the basis for the conviction.” Id.

We have extended the Taylor/Shepard framework well

beyond the question of whether a state burglary conviction

UNITED STATES v. AGUILA-MONTES DE OCA 10589

qualifies as generic burglary under the ACCA. In the criminal

context, we have, among other things, used the framework to

determine whether other crimes qualify as a “violent felony”

under the ACCA, see, e.g., United States v. Terrell, 593 F.3d

1084, 1091 (9th Cir. 2010) (holding that sexual assault under

Arizona law is a “violent felony”), and whether certain crimes

qualify a defendant for a “crime of violence” enhancement

under the Sentencing Guidelines, see, e.g., Wenner, 351 F.3d

at 972. We have also used the Taylor/Shepard framework in

the immigration context to determine whether an alien is

removable as a result of having been convicted of an “aggra-

vated felony” under 8 U.S.C. § 1101(a)(43), see, e.g., Rivera-

Cuartas v. Holder, 605 F.3d 699, 701-02 (9th Cir. 2010); of

a crime “relating to a controlled substance” under 8 U.S.C.

§ 1227(a)(2)(B)(i), see, e.g., Mielewczyk v. Holder, 575 F.3d

992, 994 (9th Cir. 2009), or of a “crime[ ] involving moral

turpitude” under 8 U.S.C. § 1227(a)(2)(A)(ii), see, e.g.,

Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.

2006). Thus, our conclusion as to precisely when the modified

categorical approach may be applied will have wide repercus-

sions beyond the limited issue in this case.

C

Before Navarro-Lopez, our cases drew no distinction

between different kinds of statutes in terms of when the modi-

fied categorical approach could be applied. We simply

applied the categorical approach and, even if we determined

that the offense of conviction was missing an element of the

generic crime, we then applied the modified categorical

approach without any inquiry as to whether the approach

should be applied.3 In Rodriguez-Rodriguez, for example, we

3

See, e.g., United States v. Nobriga, 474 F.3d 561, 564 (9th Cir. 2006)

(per curiam) (applying the modified categorical approach to determine

whether a conviction involved an intentional use of force because the stat-

ute of conviction did not require it); Galeana-Mendoza v. Gonzales, 465

F.3d 1054, 1060-62 (9th Cir. 2006) (applying the modified categorical

10590 UNITED STATES v. AGUILA-MONTES DE OCA

applied the modified categorical approach to the precise stat-

ute at issue in this case: California Penal Code § 459. See 393

F.3d at 857-58. After concluding that California’s first-degree

residential burglary offense does not qualify categorically as

generic burglary because it “do[es] not require ‘unlawful or

unprivileged entry’ for a burglary conviction,” we applied the

modified categorical approach and “conclude[d] that [defen-

dant] was convicted of a ‘burglary of a dwelling’ ” because he

“pled guilty to ‘willfully and unlawfully enter[ing] a building

with the intent to commit theft.’ ” Id. (fourth alteration in

original).

Navarro-Lopez overruled all of these decisions sub silentio

and in a two-paragraph analysis. In Navarro-Lopez, we

addressed the question of whether a conviction under Califor-

approach to determine whether an alien committed a “crime involving

moral turpitude,” even though the California battery statute lacked the

necessary injury element); Valencia v. Gonzales, 439 F.3d 1046, 1051-55

(9th Cir. 2006) (using the modified categorical approach to determine

whether statutory rape was a crime of violence, even though statutory rape

under California law did not require a showing of non-consent);

Rodriguez-Rodriguez, 393 F.3d at 857-58 (holding that a conviction for

first-degree residential burglary under California Penal Code § 459 was a

crime of violence even though § 459 does not require a showing of unlaw-

ful entry); United States v. Smith, 390 F.3d 661, 664-65 (9th Cir. 2004)

(same); United States v. Velasco-Medina, 305 F.3d 839, 851-52 (9th Cir.

2002) (same); United States v. Franklin, 235 F.3d 1165, 1169-72 (9th Cir.

2000) (same); United States v. Williams, 47 F.3d 993, 994-95 (9th Cir.

1995) (same); United States v. Alvarez, 972 F.2d 1000, 1005-06 (9th Cir.

1992) (per curiam) (same); United States v. Dunn, 946 F.2d 615, 620 (9th

Cir. 1991) (same); United States v. Sweeten, 933 F.2d 765, 769-70 (9th

Cir. 1991) (applying the modified categorical approach to a Texas bur-

glary statute that did not require the use or threatened use of physical force

as required for a “crime of violence”), overruled on other grounds by

United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir. 2007); United

States v. O’Neal, 937 F.2d 1369, 1372-74 (9th Cir. 1990) (applying the

modified categorical approach to California Penal Code § 459), abrogated

on other grounds as recognized by United States v. Garcia-Cruz, 40 F.3d

986, 988-89 (9th Cir. 1994).

UNITED STATES v. AGUILA-MONTES DE OCA 10591

nia Penal Code § 32 for accessory after the fact was a crime

involving moral turpitude. See 503 F.3d at 1065. Most of our

opinion was devoted to holding that the California offense

was not categorically a crime of moral turpitude. See id. at

1067-73.

[4] Then, after noting that the next step in our analysis

would normally be to apply the modified categorical

approach, we announced:

The modified categorical approach, however, only

applies when the particular elements in the crime of

conviction are broader than the generic crime. When

the crime of conviction is missing an element of the

generic crime altogether, we can never find that “a

jury was actually required to find all the elements

of” the generic crime. See Li v. Ashcroft, 389 F.3d

892, 899-901 (9th Cir. 2004) (Kozinski, J., concur-

ring) (providing examples).

Accessory after the fact under California Penal Code

section 32 lacks an element of the generic crime—

i.e., the moral turpitude, the requisite depravity. The

crime of conviction can never be narrowed to con-

form to the generic crime because the jury is not

required—as Taylor mandates—to find all the ele-

ments of the generic crime. Even if Navarro-Lopez

had admitted to depraved acts, those admissions

could not be used to modify the crime because they

were not necessary for a conviction. See Shepard[,

544 U.S. at 24]. . . . The modified categorical

approach thus cannot be used to conform Navarro-

Lopez’s accessory after the fact conviction to the

generic definition of crimes involving moral turpi-

tude.

Navarro-Lopez, 503 F.3d at 1073 (emphasis added) (footnote

omitted).

10592 UNITED STATES v. AGUILA-MONTES DE OCA

III

We find good reason to question our holding in Navarro-

Lopez with respect to the modified categorical approach. As

will become evident in our analysis below, the issue of when

to apply the modified categorical approach is a difficult one.

Yet Navarro-Lopez disposed of this issue in two paragraphs

with a single citation to a concurring opinion. With this sparse

analysis, Navarro-Lopez overruled almost two decades of our

jurisprudence.

Moreover, because of the manner in which Navarro-Lopez

summarily announced its novel legal principle, we have wit-

nessed a number of false starts and conflicting decisions

within our Circuit.4 And several judges of our court have writ-

4

For example, at least one panel failed to recognize the change wrought

by Navarro-Lopez and ignored it. See Salazar-Luviano v. Mukasey, 551

F.3d 857, 862-63 (9th Cir. 2008) (applying the modified categorical

approach even though the crime of conviction, 18 U.S.C. § 751, did not

contain two elements of an obstruction of justice charge). Other panels

caught the error and made a mid-course correction. See, e.g., Aguila II,

553 F.3d at 1233-34; Kawashima v. Gonzales, 503 F.3d 997, 1001-03 (9th

Cir. 2007) (decided one day before Navarro-Lopez, using modified cate-

gorical approach to determine whether convictions under 26 U.S.C.

§ 7206(1) and § 7206(2) qualify as aggravated felonies because the loss to

the government exceeded $10,000), withdrawn and superseded by

Kawashima v. Mukasey, 530 F.3d 1111, 1115-16 (9th Cir. 2008) (holding

that the modified categorical approach does not apply because “[t]he

Navarro-Lopez rule, which requires that the statute of conviction must

contain every element of the generic offense before we resort to the modi-

fied categorical approach, plainly applies in this setting”), abrogated by

Nijhawan v. Holder, 129 S. Ct. 2294 (2009), withdrawn and superseded

by Kawashima v. Holder, 615 F.3d 1043 (9th Cir. 2010). At least one dis-

trict court has simply decided to ignore Navarro-Lopez altogether in

applying the modified categorical approach. United States v. Ramos-

Medina, No. 08cr3418 JM, 2009 WL 399249, *4 (S.D. Cal. Feb. 18, 2009)

(refusing to “find that Navarro-Lopez overruled earlier precedents directly

addressing first degree residential burglary under [California Penal Code]

§ 459” because “[t]here is simply no indication that the en banc decision

of Navarro-Lopez sought to overrule [prior precedent]”).

UNITED STATES v. AGUILA-MONTES DE OCA 10593

ten separately to criticize Navarro-Lopez. See, e.g., Aguila II,

553 F.3d at 1234 (Gould, J., dissenting); Aguilar-Turcios v.

Holder, 582 F.3d 1093, 1102-11 (9th Cir. 2009) (Bybee, J.,

dissenting); Kawashima v. Mukasey, 530 F.3d 1111, 1119-24

(9th Cir. 2008) (O’Scannlain, J., specially concurring), abro-

gated by Nijhawan, 129 S. Ct. 2294, withdrawn and super-

seded by Kawashima v. Holder, 615 F.3d 1043 (9th Cir.

2010).

We believe that it is time to reconsider the rule announced

in Navarro-Lopez with the diligence appropriate for an issue

of this complexity and magnitude.

IV

The purpose of the modified categorical approach is to

determine whether the trier of fact “ ‘was actually required to

find all the elements of’ the generic offense” before enhanc-

ing the defendant’s sentence based on a state conviction.

Shepard, 544 U.S. at 17 (quoting Taylor, 495 U.S. at 602).

Or, as the Supreme Court has described it, the question is

whether the defendant’s prior conviction “ ‘necessarily’ rested

on[ ] fact[s] identifying the [crime] as generic.” Id. at 21

(quoting Taylor, 495 U.S. at 602)). Our task is to determine

what these rules mean and whether, as Navarro-Lopez held,

these rules entirely preclude the application of the modified

categorical approach to certain kinds of state statutes.

[5] Navarro-Lopez effectively segregated state criminal

statutes into two classes. First, it acknowledged that applica-

tion of the modified categorical approach was permissible

when a prior conviction resulted from what we will call “di-

visible statutes.” A divisible statute contains a list of statutory

phrases, at least one of which satisfies an element of a given

generic crime.5 For example, Taylor’s generic burglary defini-

5

We note that other circuits have used the term “divisible statute” in

potentially different ways. See Lanferman v. Bd. of Immigration Appeals,

10594 UNITED STATES v. AGUILA-MONTES DE OCA

tion requires that the defendant enter into a “building or struc-

ture.” 495 U.S. at 599. We have interpreted Taylor’s

“building or structure” element to mean “a structure designed

for occupancy that is intended for use in one place.” Grisel,

488 F.3d at 848. California Penal Code § 459, the residential

burglary statute under which Aguila was convicted, contains

a list of structures, at least one of which the defendant must

enter in order to be convicted of burglary. Some of these

structures, such as a “house,” “shop,” or “warehouse,” satisfy

Taylor’s “building or structure” element. However, other

structures listed in the California statute, such as “floating

home,” “railroad car,” and “trailer coach,” are not “intended

for use in one place,” Grisel, 488 F.3d at 848, and therefore

do not meet Taylor’s definition of “building or structure.”

Thus, California Penal Code § 459 is a “divisible statute” in

the sense that it contains a list of several kinds of structures,

only some of which satisfy the generic crime.

[6] Navarro-Lopez created a second class of state criminal

statutes: those that are “missing an element of the generic

crime altogether.” A statute can be “missing an element of the

generic crime” in two ways. In some cases, the state offense

contains an element that encompasses the generic element but

covers a broader range of conduct than the generic element.

For example, the Guidelines’ “crime of violence” definition,

in addition to “burglary of a dwelling,” also includes “statu-

tory rape.” U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). In United States

v. Rodriguez-Guzman, 506 F.3d 738 (9th Cir. 2007), we held

that the generic definition of “statutory rape” requires that the

victim be under the age of sixteen. Id. at 746. We then held

that California Penal Code § 261.5(c), which criminalizes “an

576 F.3d 84, 90 (2d Cir. 2009) (listing “three approaches” that the Second

Circuit “might adopt” to determining when a statute was divisible and not-

ing that “the exact parameters of the divisibility inquiry have not been

determined”); see also Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d

119, 122 (2d Cir. 2011) (“We have not yet fixed on an approach for deter-

mining when a statute is . . . divisible.”).

UNITED STATES v. AGUILA-MONTES DE OCA 10595

act of unlawful sexual intercourse with a minor,” with

“minor” defined as “a person under the age of 18 years,” CAL.

PENAL CODE § 261.5(a), does not qualify categorically as

“statutory rape” because it establishes eighteen rather than

sixteen as the age of consent. Rodriguez-Guzman, 506 F.3d at

746. Thus, California Penal Code § 261.5(c) is an example of

a “broad element” statute: although it contains an “age” ele-

ment, that element covers a broader range of conduct (specifi-

cally, victims between the ages of sixteen and eighteen) than

the generic element does.

In other cases, the criminal statute altogether lacks an ele-

ment of the generic crime. For example, in Estrada-Espinoza

v. Mukasey, 546 F.3d 1147 (9th Cir. 2008) (en banc), we

addressed whether “any of four California statutory rape pro-

visions . . . constitutes the aggravated felony ‘sexual abuse of

a minor’ within the meaning of 8 U.S.C. § 1101(a)(43).” Id.

at 1150. We defined “sexual abuse of a minor” by reference

to the federal statutory rape statute, 18 U.S.C. § 2243, and

held that this definition contains “four elements: (1) a mens

rea level of knowingly; (2) a sexual act; (3) with a minor

between the ages of 12 and 16; and (4) an age difference of

at least four years between the defendant and the minor.”

Estrada-Espinoza, 546 F.3d at 1152 (emphasis added). We

found that three of the four California statutory rape offenses

at issue “are missing the fourth element of the generic statute:

an age difference of at least four years between the defendant

and the minor,” and therefore held that we could not apply the

modified categorical approach to these statutes under

Navarro-Lopez. See Estrada-Espinoza, 546 F.3d at 1159; see

also, e.g., CAL. PENAL CODE § 286(b)(1) (“[A]ny person who

participates in an act of sodomy with another person who is

under 18 years of age shall be punished . . . .”).

It is worth noting that the distinction between the “broad

element” and “missing element” cases is only of limited con-

ceptual use and has no legal significance. In both situations,

“the crime of conviction is missing an element of the generic

10596 UNITED STATES v. AGUILA-MONTES DE OCA

crime,” precluding resort to the modified categorical approach

under the Navarro-Lopez rule. 503 F.3d at 1073. Indeed, it is

difficult, if not impossible, to conclusively determine whether

a criminal statute has a broad element or is missing an ele-

ment altogether. For example, if a statute of conviction pun-

ishes possession of pornography, but a federal statute imposes

a sentence enhancement for possession of child pornography,

the statute of conviction could be characterized either as con-

taining the “broad” element of pornography (including both

adult and child pornography) or as “missing” the element of

involvement of minors. See Aguilar-Turcios v. Holder, 582

F.3d 1093, 1097-98 (9th Cir. 2009); id. at 1111-12 (Bybee, J.,

dissenting). To provide a second example, generic burglary

requires entry into a structure with the intent to commit a

crime. Taylor, 495 U.S. at 598. If the statute of conviction

provides that burglary involves entry into a structure, but does

not specify that the burglar enter with the intent to commit a

crime, the statute of conviction is both too broad—because it

permits conviction when either the burglar entered with intent

to commit a crime or when he entered and subsequently

developed the intent to commit a crime, see Aguila I, 523 F.3d

at 1076 n.2—and is also arguably “missing” the element of

simultaneous intent entirely, see Aguila II, 553 F.3d at 1234.

This difficulty emphasizes the broader point we develop

below: there is no way to draw a principled distinction

between a statute that contains a list of elements that includes

more than what the generic statute requires, and a statute that

is missing the elemental phrase altogether.

To provide a consistent and convenient example to illus-

trate each of these scenarios, we may hypothesize the following.6

We begin with a hypothetical federal recidivism statute that

enhances a defendant’s sentence if he has been previously

convicted of the generic offense of “aggravated assault,”

6

Two of these scenarios were identified in Judge Kozinski’s concurring

opinion in Li, which was cited favorably in Navarro-Lopez, see 503 F.3d

at 1073, and we add a third scenario that we believe is appropriate.

UNITED STATES v. AGUILA-MONTES DE OCA 10597

which has two elements: (1) harmful contact and (2) the use

of a gun. Imagine further that a defendant has been previously

convicted of a state’s “assault” offense. The state assault

offense might be categorically broader than generic aggra-

vated assault in one of three ways. If the statute is divisible,

the state crime contains a list of several kinds of weapons, at

least one of which satisfies the generic crime. Such a crime

might have the following elements: (1) harmful contact and

(2) use of a gun or an axe. The state offense might also

include a “broad element” if it requires (1) harmful contact

and (2) use of a weapon (which encompasses a broader range

of conduct than use of a gun). Finally, the state crime of con-

viction might only require harmful contact without requiring

the use of any kind of weapon at all.

We conclude that the modified categorical approach

encompasses, with certain important restrictions, each of

these situations.

A

[7] We first examine why the modified categorical

approach is appropriate for divisible statutes. There is no seri-

ous dispute that it at least applies to them. If this were not so,

the modified categorical approach would have no function

whatsoever. When the statute of conviction contains a list of

statutory phrases, at least one of which satisfies the generic

statute, the modified categorical approach can be used to

determine under which statutory phrase the defendant was

convicted. If the appropriate documents demonstrate that the

defendant was convicted under the statutory phrase satisfying

the generic element, then the trier of fact was “actually

required” to find that element of the generic crime. To use our

hypothetical, if the statute of conviction contains the elements

of (1) harmful contact and (2) use of a gun or an axe, the

modified categorical approach can be used to determine

whether the trier of fact was actually required to find that the

defendant used a gun.

10598 UNITED STATES v. AGUILA-MONTES DE OCA

In Taylor, the Supreme Court illustrated the modified cate-

gorical approach by citing a divisible statute:

[I]n a State whose burglary statutes include entry of

an automobile as well as a building, if the indictment

or information and jury instructions show that the

defendant was charged only with a burglary of a

building, and that the jury necessarily had to find an

entry of a building to convict, then the Government

should be allowed to use the conviction for enhance-

ment.

495 U.S. at 602. Furthermore, the Court’s recent decisions in

Johnson and Nijhawan confirm that the modified categorical

approach applies at least to divisible statutes. See Johnson,

130 S. Ct. at 1273 (“When the law under which the defendant

has been convicted contains statutory phrases that cover sev-

eral different generic crimes, . . . the ‘modified categorical

approach’ that we have approved permits a court to determine

which statutory phrase was the basis for the conviction by

consulting the [judicially noticeable documents].” (citation

omitted)); Nijhawan, 129 S. Ct. at 2303 (modified categorical

approach can be used to “determin[e] which statutory phrase

(contained within a statutory provision that covers several dif-

ferent generic crimes) covered a prior conviction”).

B

[8] We now turn to statutes that are “missing an element

of the generic crime.” As a conceptual matter, these statutes

simply substitute a shorthand phrase for a list of acts or

objects covered by that phrase. For example, a statute that

requires use of a “weapon” is not meaningfully different from

a statute that simply lists every kind of weapon in existence.

Using the word “weapon” as an element is not analytically

different from creating a list of all conceivable weapons

(“gun, axe, sword, baton, slingshot, knife, machete, bat,” and

so on). Because we have little difficulty discerning that some-

UNITED STATES v. AGUILA-MONTES DE OCA 10599

one convicted of assault with a “weapon” may have used a

gun, the modified categorical approach could apply in the

same way it does to a conviction under a divisible statute to

determine if the trier of fact was actually required to find that

the defendant used a gun. See Li, 389 F.3d at 899 (Kozinski,

J., concurring) (“The government may . . . use the indictment

and other documents in the record to prove that, because the

jury convicted the defendant [under a hypothetical statute

requiring use of a weapon], it must have done so by finding

that he used a gun—for instance, if that was the only way that

element of the offense was charged in the indictment.”).

Similar logic applies where a statute does not even require

a weapon, and only requires harmful contact. If a statute of

conviction only requires the element of “harmful contact,”

that element in turn is indistinct from a list of all the possible

ways an individual can commit harmful contact (“harmful

contact with a vehicle, harmful contact with a gun, harmful

contact with an axe, harmful contact with a utensil” and so

on). The only conceptual difference between a divisible stat-

ute and a non-divisible statute is that the former creates an

explicitly finite list of possible means of commission, while

the latter creates an implied list of every means of commission

that otherwise fits the definition of a given crime.

[9] Nonetheless, under existing case law, it is not obvious

that the modified categorical approach applies in these miss-

ing element cases. We conclude that it does. First, we con-

sider the argument for limiting the modified categorical

approach to the divisible statute situation, noting that there is

dicta in Nijhawan and Johnson that supports this position and

that several of our sister circuits have adopted some form of

this argument. Second, we explain why, in our view, that

argument is inconsistent with the fact that the Supreme Court

in Taylor has approved a modified categorical approach.

Finally, we find strong support for our interpretation of the

modified categorical approach—and further support for our

10600 UNITED STATES v. AGUILA-MONTES DE OCA

rejection of Aguila’s argument—in the reasoning behind Tay-

lor.

1

The central basis for the argument that the modified cate-

gorical approach should be limited to divisible statutes is that,

in order to determine whether a defendant’s prior offense

qualifies the defendant for a sentencing enhancement or

whether an alien’s prior offense renders him removable, it

does not matter what acts the defendant committed; rather, the

relevant question is what he was convicted of. See Taylor, 495

U.S. at 600 (justifying the categorical approach based on the

fact that the ACCA “refers to ‘a person who . . . has three pre-

vious convictions’ for—not a person who has committed—

three previous violent felonies or drug offenses” (alteration in

original) (quoting 18 U.S.C. § 924(e)(1)); Shepard, 544 U.S.

at 16 (clarifying what documents could be used “to determine

whether an earlier guilty plea necessarily admitted, and sup-

ported a conviction for, generic burglary” (emphasis added));

U.S.S.G. § 2L1.2(b)(1) (imposing a sentence enhancement on

defendants convicted of illegal reentry after deportation who

were “deported, or unlawfully remained in the United States,

after (A) a conviction for a felony that is . . . a crime of vio-

lence” (emphasis added)); 18 U.S.C. § 924(e)(1) (imposing a

fifteen-year mandatory minimum sentence on felons in pos-

session of a firearm who “ha[ve] three previous convictions

. . . for a violent felony or a serious drug offense” (emphasis

added)); 8 U.S.C. § 1227(a)(2)(A)(i) (“Any alien who (I) is

convicted of a crime involving moral turpitude committed

within five years . . . after the date of admission . . . is deport-

able.” (emphasis added)). Because of this distinction between

conviction and commission, under Taylor it does not matter

what facts the jury actually found but rather what facts the

jury was “actually required to find,” 495 U.S. at 602 (empha-

sis added), which are the facts required to establish the defen-

dant’s conviction—that is, the facts on which the conviction

UNITED STATES v. AGUILA-MONTES DE OCA 10601

“ ‘necessarily’ rested,” Shepard, 544 U.S. at 21 (quoting Tay-

lor, 495 U.S. at 602).

The requirement that we focus on what the defendant was

convicted of rather than the acts he committed serves two

important purposes. First, it confines our inquiry to the fact of

conviction and avoids the need to rummage through the “ac-

tual proof at trial” to see “whether the defendant’s conduct

constituted generic burglary.” Taylor, 495 U.S. at 601. It

therefore avoids the spectacle of a “trial over trials,” in which

the government and the defendant reprise their roles, argue

over what was litigated in state court, and invite the sentenc-

ing court to conduct “its own review of the record.” Id. Sec-

ond, by relying exclusively on the crime of conviction, we

avoid situations where the government arguably could prove

that the defendant actually committed a greater offense, one

that would satisfy the generic crime, but would deprive the

defendant of the benefit of his conviction for (or plea to) a

lesser crime. Id. at 601-02 (“[I]t would seem unfair to impose

a sentence enhancement as if the defendant had pleaded guilty

to burglary.”).

Aguila, the amici curiae, and other proponents of Navarro-

Lopez’s “missing element” rule argue that, if the statute of

conviction lacks an element of the generic crime, the defen-

dant was not convicted of the generic crime, regardless of

how certain we are that the defendant actually committed the

acts composing the generic crime. The reason, they argue, is

that a defendant can only be “convicted” if the factfinder

determines that each of the elements of the crime was satis-

fied. If any element of the generic crime is missing from the

statute of conviction, we cannot conclude that the defendant

was effectively convicted of the generic crime, and everything

else is irrelevant. Put another way, to convict, the factfinder

is only “actually required” to find the elements of the statute

of conviction; if something is not an element, then by defini-

tion the jury is not required to find it in order to convict. And

10602 UNITED STATES v. AGUILA-MONTES DE OCA

put yet another way, a conviction only “necessarily rests” on

the elements of the statute of conviction.

Returning to our hypothetical, Aguila would argue that, if

the generic aggravated assault statute requires the use of a gun

(the “missing element” situation) and a state statute does not,

then a defendant convicted under the state statute was not

convicted of generic aggravated assault even if he actually

used a gun, because again, one can only be “convicted” of

having committed the elements of the crime. In this situation,

the jury would not be required to find that the defendant used

any type of weapon in order to convict him, regardless of

whether the jury actually thought that he did in fact use a gun.

And in this situation, the fact that the defendant used a gun

would, in some sense, not be necessary to the defendant’s

conviction.

2

This argument has some force and support. Indeed, the

Supreme Court’s own post-Navarro-Lopez decisions in Nijha-

wan and Johnson provide some support for Navarro-Lopez’s

rule. Both cases clearly express approval for applying the

modified categorical approach to convictions under divisible

statutes. But neither case addressed the issue before us, so we

are reluctant to read into approval of the use of the modified

categorical approach in the divisible statute context as disap-

proval of its use with broad or missing element statutes.

The petitioner in Nijhawan argued that, even where a

requirement under a generic crime is an attendant circum-

stance of the crime rather than an element of the crime, the

court “should nonetheless borrow from Taylor what that case

called a ‘modified categorical approach’ ” and “examine only

charging documents, jury instructions, and any special jury

finding.” Nijhawan, 129 S. Ct. at 2302. The Court “d[id] not

agree that fairness requires the evidentiary limitations [peti-

tioner] proposes,” and reasoned that “Taylor, James [v.

UNITED STATES v. AGUILA-MONTES DE OCA 10603

United States, 550 U.S. 192 (2007)], and Shepard . . . devel-

oped that list [of judicially noticeable documents] for a very

different purpose, namely that of determining which statutory

phrase (contained within a statutory provision that covers

several different generic crimes) covered a prior conviction.”

Id. at 2303 (emphasis added). This sentence suggests that the

purpose of the modified categorical approach is to determine

under which portion of a divisible statute the defendant was

convicted. See United States v.Woods, 576 F.3d 400, 406 (7th

Cir. 2009) (“Nijhawan supports our understanding that the

permissible additional materials may be consulted only for the

purpose of determining under which part of a divisible statute

the defendant was charged.”).

Judge Berzon is mistaken when she argues that “Nijhawan

is crystal clear: The modified categorical approach is used to

determine under which provision of a divisible statute a

defendant was convicted.” Berzon Op. at 10640. In fact, the

Court declined to apply either the categorical or the modified

categorical approach to the statute at issue in that case. It had

no need to explicate how either method should be applied,

and it is far from “crystal clear” that Nijhawan limited the

modified categorical approach to divisible statutes. If any-

thing, by ratifying the creation of a new “circumstance-

specific” category of statutes, the Court expanded lower

courts’ authority to look beyond statutory definitions in deter-

mining whether a particular recidivist statute applied to cer-

tain prior convictions.

Johnson contains similar language. In that case, the Court

held that Florida’s divisible battery statute, which contained

a subpart that permitted conviction by “[a]ctually and inten-

tionally touch[ing] . . . another person,” FLA. STAT.

§ 784.03(1)(a)(1), did not “ha[ve] as an element the use . . .

of physical force against the person of another,” 18 U.S.C.

§ 924(e)(2)(B)(i), and was thus not categorically a “violent

felony” under the ACCA. Johnson, 130 S. Ct. at 1274.7 The

7

This statute was divisible because it permitted conviction either by

“[a]ctually and intentionally touch[ing] . . . another person” or by

10604 UNITED STATES v. AGUILA-MONTES DE OCA

Court came to this conclusion by interpreting the term “physi-

cal force” in the ACCA to mean “violent force—that is, force

capable of causing physical pain or injury to another person.”

Id. at 1271.

“[T]he Government assert[ed] that [the Court’s] interpreta-

tion w[ould] make it more difficult to remove, pursuant to 8

U.S.C. § 1227(a)(2)(E), an alien convicted of a ‘crime of

domestic violence’ . . . based upon battery convictions that . . .

do not require the use of violent physical force.” Id. at 1273.

The Court responded:

This exaggerates the practical effect of our decision.

When the law under which the defendant has been

convicted contains statutory phrases that cover sev-

eral different generic crimes, some of which require

violent force and some of which do not, the “modi-

fied categorical approach” that we have approved

permits a court to determine which statutory phrase

was the basis for the conviction by consulting the

[judicially noticeable documents].

Id. (emphasis added) (quotation marks and citation omitted).

This language, too, could be read to suggest that the purpose

of the modified categorical approach is limited to determining

under which portion of a divisible statute a defendant was

convicted.

Judge Berzon argues that “Johnson dispels any remaining

doubt” that the modified categorical approach is limited to

divisible statutes. Berzon Op. at 10641. Specifically, she

“[i]ntentionally caus[ing] bodily harm to another person.” FLA. STAT.

§ 784.03(1)(a). The second of these subparts clearly involved “the use . . .

of physical force against the person of another,” 18 U.S.C.

§ 924(e)(2)(B)(i), and thus satisfied the ACCA’s definition of “violent fel-

ony.” The first of these subparts did not. See Johnson, 130 S. Ct. at 1274.

UNITED STATES v. AGUILA-MONTES DE OCA 10605

argues that because the Court was trying to offer the modified

categorical approach as a flexible option for the government,

the Supreme Court had an incentive to state the rule as

broadly as it could. In effect, because the Court did not

explicitly authorize use of the modified categorical approach

in the case of non-divisible statutes, Judge Berzon encourages

us to draw the strong negative inference that Johnson clearly

foreclosed such uses. However, because the statute of convic-

tion in Johnson was a divisible statute that offered two differ-

ent definitions of battery (neither of which met the “physical

force” requirement, see Johnson, 130 S. Ct. at 1269), the

Court had no reason to articulate a rule for cases in which a

statute was not divisible in the same way.

We acknowledge that language in Nijhawan and Johnson

provides support for limiting the modified categorical

approach to divisible statutes. However, this language lacks

conclusive weight for several reasons. First, neither opinion

states explicitly that the only purpose of the modified categor-

ical approach is to narrow a divisible statute to the generic

definition. See Woods, 576 F.3d at 415-416 (Easterbrook,

C.J., dissenting) (pointing out that the Supreme Court “Jus-

tices themselves have not used the word [‘divisibility’] or its

functional equivalent,” including in Nijhawan, where “[t]he

Supreme Court affirmed . . . without mentioning ‘divisibili-

ty’ ” despite a dissenting opinion in the court of appeals deci-

sion below that “invoked a ‘divisibility’ requirement in

support of [its] argument”). But more importantly, in neither

of these decisions was the Supreme Court considering the

issue we are considering here: to what kinds of statutes the

modified categorical approach can be applied. Thus, although

Judge Berzon accurately observes that the arguments in those

cases were thoroughly briefed and examined by the Court,

Berzon Op. at 10640ther case presented the problem at issue

here. In fact, the modified categorical approach was largely

irrelevant to the issues the Supreme Court was ruling

on—Nijhawan held that the Taylor framework did not apply

at all to the issue of whether the alien was removable, see

10606 UNITED STATES v. AGUILA-MONTES DE OCA

Nijhawan, 129 S. Ct. at 2302-03, and Johnson noted that its

inquiry was limited to the categorical approach because

“nothing in the record of [petitioner’s] 2003 battery convic-

tion permitted the District Court to conclude that it rested

upon anything more than the least of [the] acts [permitted

under the state statute],” 130 S. Ct. at 1269. In sum, the

Court’s discussions of the modified categorical approach are

illustrative rather than prescriptive on the point at issue here.

3

Beyond Nijhawan and Johnson, the circuits are a bit of a

jumble. Some circuits have adopted a divisible-statutes-only

rule, although few have given full attention to the rule. Others

have adopted ambiguous or even conflicting rules, with sev-

eral reflecting the stop-and-start analysis that we have experi-

enced. For example, the Seventh Circuit has strongly

suggested that the modified categorical approach is limited to

divisible statutes. In United States v. Woods, 576 F.3d 400

(7th Cir. 2009), the court held that a state conviction for

involuntary manslaughter was not a “crime of violence” under

the Guidelines because it lacked the element of criminal

intent. Id. at 410-13. The court declined to apply the modified

categorical approach to supply that element, reasoning that

Supreme Court precedent “permit[s] a court to go beyond the

statutory definition of the crime to consult judicial records . . .

only where the statute defining the crime is divisible, which

is to say where the statute creates several crimes or a single

crime with several modes of commission . . . identified some-

how in the statute.” Id. at 411. The court emphasized that the

modified categorical approach should not be used “to look at

the particular facts underlying the defendant’s conviction,”

but only “ ‘to determine whether the jury actually convicted

the defendant of (or, in the case of a guilty plea, the defendant

expressly admitted to) violating a portion of the statute that

constitutes a violent felony.’ ” Id. at 404 (quoting United

States v. Smith, 544 F.3d 781, 786 (7th Cir. 2008)); see also

id. at 405 (“In short, the additional materials permitted by

UNITED STATES v. AGUILA-MONTES DE OCA 10607

Shepard may be used only to determine which crime within

a statute the defendant committed, not how he committed that

crime.”); id. at 409 (“[T]he only thing that counts for purposes

of the ACCA or the career offender Guidelines is the prior

crime for which the defendant was actually convicted.”).8

Whatever the apparent force of Woods, the Seventh Circuit

has recently refined its course, and it is less clear that the

court has converged on a divisible-statutes-only rule. In

United States v. Fife, 624 F.3d 441 (7th Cir. 2010), the court

recently applied the modified categorical approach to deter-

mine whether a conviction under an Illinois armed violence

statute constituted a violent felony under the ACCA’s residual

clause. Id. at 444; see Begay v. United States, 553 U.S. 137

(2008). The relevant statute of conviction provided that “[a]

person commits armed violence when, while armed with a

dangerous weapon, he commits any felony defined by Illinois

law,” with the exception of a number of enumerated felonies

such as murder and manslaughter. 720 ILL. COMP. STAT.

5/33A-2 (2007). Resisting application of the modified cate-

gorical approach to his case, Fife argued “that the statute must

be considered as a whole without any subdivisions.” Fife, 623

F.3d at 446. According to Fife, this would mean that some

convictions, such as driving under the influence with a fire-

arm in the vehicle, or filing a false tax return while possessing

a gun, would categorically not qualify under the ACCA’s

8

Chief Judge Easterbrook, joined by Judges Posner and Tinder, dis-

sented from the denial of rehearing en banc, arguing “that the sentencing

judge should be allowed to look at the charging papers and plea colloquy

in the criminal prosecution whether or not the statute is ‘divisible.’ ”

Woods, 576 F.3d at 414 (Easterbrook, C.J., dissenting). While acknowl-

edging that “Taylor holds that federal recidivist statutes use a charge-

offense rather than a real-offense approach,” he found the panel’s “ ‘divis-

ibility’ principle . . . incompatible with the Supreme Court’s understand-

ing.” Id. at 414-15. Chief Judge Easterbrook concluded that, “instead of

asking whether a state law is ‘divisible,’ we should ask whether the jury

(or judge) necessarily found all the elements required to classify the crime

as ‘violent’ for federal purposes.” Id. at 415.

10608 UNITED STATES v. AGUILA-MONTES DE OCA

residual clause as “purposeful, violent, and aggressive.” Id. at

445. The court acknowledged the “broad reach” of the Illinois

statute, but held that the statute of conviction “is a divisible

statute not because each subcategory is separately listed, but

because by its terms it creates several crimes or a single crime

with several modes of commission.” Id. at 444, 446. The court

went on to observe that “the armed violence offense creates

multiple modes of commission, defined by the felony com-

mitted while armed with a dangerous weapon,” and that the

court was free to “examine underlying documents to deter-

mine the precise offense committed—specifically, to deter-

mine which felony Fife committed while possessing a

weapon.” Id. at 446-47. Although the Seventh Circuit in Fife

nominally retained the rule that the modified categorical

approach only applied to divisible statutes, in our terminology

it defined “divisible statute” in a manner that would encom-

pass missing element statutes, including any statute that “nec-

essarily establishes multiple modes of commission of the

crime.” Id. at 446.

Four other circuits — the First,9 Fourth,10 Fifth,11

9

See United States v. Giggey, 551 F.3d 27, 40 (1st Cir. 2008) (“Under

the categorical approach, a federal sentencing court may not create a series

of federal subcategorizations to fit the facts of a particular case. . . . If the

state statute does not contain such . . . distinction[s], the federal court may

not create one.”).

10

See United States v. Rivers, 595 F.3d 558, 562-63 (4th Cir. 2010)

(declining to apply the modified categorical approach to determine

whether a state conviction for failure to stop for a blue light contained the

element of criminal intent so as to render it a “violent felony” under the

ACCA).

11

See, e.g., United States v. Lipscomb, 619 F.3d 474, 491-492 (5th Cir.

2010) (limiting the modified categorical approach to cases involving “a

statutory provision that covers several different generic crimes”); United

States v. Gonzalez-Terrazas, 529 F.3d 293, 297-98 (5th Cir. 2008) (hold-

ing that the modified categorical approach is used “only to determine of

which subsection of a statute a defendant was convicted” where “the stat-

ute of conviction contains a series of disjunctive elements” (quotation

marks omitted)).

UNITED STATES v. AGUILA-MONTES DE OCA 10609

and Eighth12 — have limited the modified categorical

approach to the divisible statute situation, but without

much explanation as to precisely why this limitation is

compelled by Taylor and Shepard. The Sixth13 and

12

See United States v. Boaz, 558 F.3d 800, 807-08 (8th Cir. 2009)

(“Neither we nor the Supreme Court have approved a methodology that

would decouple the limited review of record materials from an element-

by-element analysis of the predicate offense. In other words, [the modified

categorical approach may be used] only to determine which part of the

statute the defendant violated.” (quotation marks and citations omitted)).

13

See United States v. Armstead, 467 F.3d 943, 947-48 (6th Cir. 2006)

(stating that the court applies the modified categorical approach “[i]f the

statutory definition embraces both violent and non-violent crimes or is

otherwise ambiguous,” and applying the modified categorical approach

where a Tennessee child abuse statute “d[id] not necessarily require the

use, attempted use, or threatened use of physical force, and, moreover,

provide[d] an insufficient basis upon which to determine whether a prior

conviction . . . involve[d] conduct that presents a serious potential risk of

physical injury to another” (emphasis added) (quotation marks omitted)

(alteration in original))

Judge Berzon cites United States v. Young, 580 F.3d 373 (6th Cir.

2009), and United States v. Bartee, 529 F.3d 307 (6th Cir. 2008), for the

proposition that the Sixth Circuit is a divisible statute-only jurisdiction.

Berzon Op. at 10646 & n.6. We do not think those cases go so far. Young

criticized a prior case, United States v. Foreman, 436 F.3d 638 (6th Cir.

2006) for “remand[ing] for examination of Shepard documents.” 580 F.3d

at 380 n.8. But as a concurring judge notes, the remand was inappropriate

in that case because none of the divisible offenses were crimes of vio-

lence. Id. at 385 (Sutton, J., concurring in part, dissenting in part, and con-

curring in the judgment) (“[I]n this setting, a remand suggests that we are

asking the district court to do something that Taylor prohibits: engaging

in a fact specific inquiry about how this defendant committed this

offense.”). Bartee is also not helpful in ascertaining the current state of

play in the Sixth Circuit. In that case “the government acknowledged at

sentencing that neither the statuory definition nor the amended informa-

tion specified that the sexual contact was with a minor.” 529 F.3d at 361.

The only proof that the victim was a minor came from “[non-]Shepard-

eligible records.” Id.

10610 UNITED STATES v. AGUILA-MONTES DE OCA

Tenth14 Circuits appear to apply the modified categorical

14

See United States v. Townley, 472 F.3d 1267, 1277 (10th Cir. 2007)

(noting that Shepard “was concerned . . . with what documents can be

used to prove the facts underlying a conviction where the elements of the

state crime do not precisely mirror the federal definition” (quotation marks

omitted)); Vargas v. Dep’t of Homeland Sec., 451 F.3d 1105, 1108-09

(10th Cir. 2006) (using the modified categorical approach to determine

that a conviction for the state crime of “contributing to the delinquency of

a minor,” which could encompass urging the minor to commit “anything

from jaywalking to murder,” was sexual abuse of a minor, and therefore

an aggravated felony under 8 U.S.C. § 1101(a)(43)(A), because it was

based on a charge that the alien induced, aided, and encouraged a child to

engage in non-consensual sexual conduct).

Judge Berzon argues that the Tenth Circuit adopted a divisible-statute-

only rule in United States v. Charles, 576 F.3d 1060, 1067 (10th Cir.

2009), and United States v. Zuniga-Soto, 527 F.3d 1110, 1121 (10th Cir.

2008). Berzon Op. at 10644-45 & n.5. Charles addressed the question of

whether a prior conviction for escaping from lawful custody constituted a

“crime of violence” under the Sentencing Guidelines in light of the

Supreme Court’s decision in Chambers v. United States, 129 S. Ct. 687

(2009). The court acknowledged that the modified categorical approach

“does not involve a subjective inquiry into the facts of the case,” id. at

1067, but it did not comment on whether it could be applied to non-

divisible statutes. In fact, the statute at issue, 18 U.S.C. § 751(a), is argu-

ably a non-divisible statute — the court cited language describing it as

“overinclusive” — yet rather than specifying that the modified categorical

approach did not apply, the court remanded the case back to the district

court “to determine whether or not this conviction was a career-offender-

qualifying escape from custody.” Id. at 1069 (internal quotation marks and

citations omitted).

Judge Berzon also mischaracterizes Zuniga-Soto. It is true that the

Tenth Circuit in that case corrected an intra-circuit split that resulted in

cases that were “not always focused on the elements of the prior convic-

tion.” 527 F.3d at 1121. However, the court in Zuniga-Soto was determin-

ing the applicability of the Sentencing Guidelines’ residual clause, which

defines a “[c]rime of violence” to include “any other offense . . . that has

as an element the use, attempted use, or threatened use of physical force

against the person of another.” U.S.S.G. § 2L1.2 cmt. 1(B)(iii) (emphasis

added); see Zuniga-Soto, 527 F.3d at 1118. In fact, the court was careful

to note that “[w]hile Comment 1(B)(iii)’s ‘as an element’ language does

not allow for judicial analysis of the facts underlying a defendant’s con-

UNITED STATES v. AGUILA-MONTES DE OCA 10611

approach whenever the offense of conviction is categorically

broader than the generic crime. And the Second,15 Third,16 and

viction, other enhancement provisions do.” Id. at 1120 n.2 (emphasis

added). In other words, Zuniga-Soto’s divisible-statute-only rule applies

only to statutes that explicitly require exclusive reliance on statutory

phrases. The court, in fact, reaffirmed its prior conclusion (one that is

notably broader than the one we reach today) that “when the language of

the enhancement provision requires courts to look at the specific facts

underlying the prior offense, courts employ a factual approach, looking

not only at the terms of the statute of conviction, but also at the underlying

facts.” Id. (quoting United States v. Martinez-Hernandez, 422 F.3d 1084,

1087 (10th Cir. 2005)) (emphasis added) (alteration and quotation marks

omitted).

15

Although Judge Berzon’s claim that the Second Circuit, by its terms,

appears to restrict application of the modified categorical approach to “di-

visible statutes,” Berzon Op. at 10648-49 , is correct, several cases have

suggested that court uses the term “divisible statute” in a manner that

might encompass missing element statutes. See, e.g., Lanferman v. Board

of Immigration Appeals, 576 F.3d 84, 91-92 (2d Cir. 2009) (suggesting

that its case law might “permit divisibility in ‘all statutes of conviction . . .

regardless of their structure, so long as they contain an element or ele-

ments that could be satisfied either by removable or non-removable con-

duct’ ” (internal citation omitted)); Hoodho v. Holder, 558 F.3d 184, 189

n.3 (2d Cir. 2009) (“We note that it is an open question whether a statute

is divisible and therefore susceptible to the modified categorical approach

when it encompasses both removable and non-removable offenses, but

does not describe the removable offenses only in distinct subsections or

elements of a disjunctive list.”). Indeed, the court has recently noted that

it “ha[s] not yet fixed on an approach for determining when a statute is . . .

divisible.” Oouch v. U.S. Dep’t of Homeland Sec., 633 F.3d 119, 122 (2d

Cir. 2011).

16

There is tension between two of the Third Circuit’s cases. In Knapik

v. Ashcroft, 384 F.3d 84 (3d Cir. 2004), the court stated that the modified

categorical approach may be applied beyond the divisible statute situation,

including in the missing element situation. Id. at 92 n.8 (3d Cir. 2004)

(noting “two situations in which the formal categorical approach properly

may be abandoned”: (1) “when the terms of the statute on which removal

is based invites inquiry into the facts of the underlying conviction,”

including when “the relevant criminal statute did not include a ‘loss

greater than $10,000’ element”; and (2) “when the underlying criminal

statute is written in the disjunctive . . . such that some, but not all, convic-

10612 UNITED STATES v. AGUILA-MONTES DE OCA

Eleventh17 circuits have been ambiguous about their approach.

4

Although we acknowledge that Aguila’s argument has sup-

port, we are not persuaded by it. In the end, we believe that

this argument is inconsistent with the Supreme Court’s man-

tions under the statute place the alien within the removal category for

immigration purposes” (emphasis added)). However, a later decision of

the Third Circuit, Jean-Louis v. Attorney General of the United States, 582

F.3d 462 (3d Cir. 2009), contains some language suggesting that the modi-

fied categorical approach cannot be applied to “missing element” statutes:

[W]e depart[ ] from a strict categorical analysis only where the

statute of conviction feature[s] disjunctive variations, some of

which were sufficient for conviction of the federal offense and

others of which were not. We depart farther from the formal cate-

gorical approach only where the language of a particular subsec-

tion [of a statute] . . . invites inquiry into the underlying facts of

the case. In such a case, we modified the approach, but our

inquiry remained a limited one, focused on the crime of convic-

tion: we reviewed only the record of conviction to ascertain the

particular variation of the statute under which the defendant was

convicted.

Id. at 471-72 (emphases added) (quotation marks and citation omitted)

(alteration in original); see also id. at 474 (inquiry must be focused “on

the crime of which the alien was convicted—not the specific acts that the

alien may have committed”). Adding to our confusion, Jean-Louis cites

Knapik favorably. 582 F.3d at 465.

17

The Eleventh Circuit has also adopted language favoring a divisible-

statute-only rule without specifying whether the modified categorical

approach is limited to divisible statutes. See, e.g., Obasohan v. U.S. Att’y

Gen., 479 F.3d 785, 788 (11th Cir. 2007) (“If the statutory language con-

tains some offenses that would qualify as aggravated felonies, and others

that would not, then the statute is ‘divisible,’ and the IJ must look to the

record of conviction . . . to determine the offense of which the respondent

was convicted.” (internal quotation marks omitted)); United States v. Gar-

cia, 606 F.3d 1317 (11th Cir. 2010) (“[W]hen the law under which a

defendant has been convicted contains different statutory phrases—some

of which require the use of force and some of which do not—the judgment

is ambiguous and we apply a ‘modified categorical approach.’ ”).

UNITED STATES v. AGUILA-MONTES DE OCA 10613

date in Taylor that we apply a modified categorical approach

that considers to some degree the factual basis for the defen-

dant’s conviction—as determined by looking at the limited

universe of Shepard documents—in order to determine what

the jury must have found.

Aguila’s argument interprets the concepts of “actually

required” and “necessarily rested” in Taylor and Shepard to

mean “actually required” and “necessarily rested” in a strictly

elemental sense—that is, a prosecutor must be “actually

required” to prove the generic elements in every case brought

under the state statute so that a jury’s finding must have “nec-

essarily rested” on that element in every trial brought under

the provision. For example, if the generic crime requires use

of a gun and the state crime requires no weapon at all, then

the factfinder is not always required to find that the defendant

used a gun. As a consequence, according to Aguila and Judge

Berzon, the modified categorical approach can never demon-

strate that the factfinder was “actually required,” as a formal

matter, to find a non-elemental fact.

The problem with this framework is that if we follow its

logic, the modified categorical approach should not apply to

divisible statutes, leaving no room for a modified approach at

all. Even in the divisible statute situation, the factfinder is

never “actually required” by the statute alone to find the pre-

cise elements of the generic crime.18 To use our example

18

Judge Berzon argues that the modified categorical approach can only

be applied when the statute of conviction is divisible. But her confidence

in the divisible-statute-only rule really turns on the reliability of the rele-

vant Shepard documents. We are puzzled both by some misdirection in

her analysis and by her failure to explain why this confidence is not

equally applicable to other kinds of statutes. For example, Judge Berzon

observes that prosecutors are required to specify under what statutory pro-

vision a defendant is being charged and must only pursue this theory “ab-

sent a formal amendment to the charging document,” Berzon Op. at

10671; but elsewhere she states that “a charging document may, but may

not, outline the prosecution’s theory,” id. at 10660. Judge Berzon also

10614 UNITED STATES v. AGUILA-MONTES DE OCA

above, suppose that the generic aggravated assault statute has

the elements of (1) harmful contact and (2) the use of a gun,

while a state statute of conviction has the elements of (1)

harmful contact and (2) the use of a gun or an axe. Without

examining additional documents and conducting some inquiry

into the specific circumstances surrounding a conviction, it

will never be possible to conclude that the conviction “neces-

sarily rested” on the fact that the defendant used a gun. In the-

ory, all the jury has to decide is whether the defendant used

a gun or an axe, and the use of an axe in an assault is not cov-

ered by our hypothetical generic aggravated assault statute.

The conclusion that the prior conviction involved the use of

a gun can only be reached after looking at the relevant Shep-

ard documents.

In other words, Aguila’s reading of “actually required” col-

lapses the modified categorical approach into the categorical

approach, because the only time that the factfinder in the state

case is “actually required” to find a particular generic element

in that way is when conviction under the state statute always

satisfies the generic statutory definition regardless of the par-

ticular facts of the case, either because the state statute

matches the generic crime or because the state statute crimi-

notes that judges are required to craft jury instructions “in light of the

charges and the proof at trial,” presumably suggesting that these instruc-

tions will require a jury to find guilt only if the specific theory advanced

by the charging document has been proven, Berzon Op. at 10676; but else-

where she states that “juries are generally free to disagree as to means by

which the defendant committed a particular element,” id. at 10654.

In any event, the same reasons that motivate Judge Berzon to express

confidence in the modified categorical approach in divisible statute cases

suggest that we should have similar confidence in applying it to broad and

missing element cases, so long as we are relying on the documents

approved in Shepard. It is unclear why, according to Judge Berzon, these

conviction records are unreliable when the conviction rests on a missing

element statute, yet are perfectly reliable in determining under which part

of a divisible statute a defendant was convicted.

UNITED STATES v. AGUILA-MONTES DE OCA 10615

nalizes a narrower range of conduct than the generic crime.

Thus, in order to preserve any role for the modified categori-

cal approach, “actually required” cannot mean “actually

required by specific words in the statute of conviction.”

Because applying the modified categorical approach per-

mits some consideration of the particular acts the defendant

committed, Taylor requires a modest, but more nuanced

inquiry. The modified categorical approach simply asks, in

the course of finding that the defendant violated the statute of

conviction, was the factfinder actually required to find the

facts satisfying the elements of the generic offense? In other

words, the purpose of the modified categorical approach is to

determine (1) what facts the state conviction necessarily

rested on and (2) whether these facts satisfy the elements of

the generic offense. See Shepard, 544 U.S. at 21 (modified

categorical approach indicates “whether the plea had neces-

sarily rested on the fact identifying the burglary as generic”

(emphasis added) (quotation marks omitted)).

For example, regarding our gun/axe divisible statute, as we

understand Taylor, if the indictment alleges only that the

defendant used a gun, and the only prosecutorial theory of the

case (as ascertained exclusively through the relevant Shepard

documents) is that the defendant used a gun, then we can be

confident that if the jury convicted the defendant, the jury

found that the defendant used a gun rather than an axe. In

such an instance, we would say that, given the facts put for-

ward by the government, the jury was “required” to find that

the defendant used a gun. And in the plea context, if the only

weapon the defendant admitted to using was a gun, then we

can be confident that the trier of fact was “required” to find

that the defendant used a gun in the course of assaulting the

victim. In other words, the modified categorical approach asks

what facts the conviction “necessarily rested” on in light of

the theory of the case as revealed in the relevant Shepard doc-

uments, and whether these facts satisfy the elements of the

generic offense.

10616 UNITED STATES v. AGUILA-MONTES DE OCA

Under such an approach, we are confident of the facts that

fill the gap between a divisible statute of conviction and the

generic statute because we have limited our review of the

record to “only a restricted look beyond the record of convic-

tion under a nongeneric statute.” Shepard, 544 U.S. at 23. We

avoid “evidentiary disputes” by relying only on documents

that give us the “certainty of a generic finding,” id. at 23 n.4,

24 (plurality opinion), including “the statutory definition,

charging document, written plea agreement, transcript of plea

colloquy, and any explicit factual finding by the trial judge to

which the defendant assented.” Id. at 16; see also Snellenber-

ger, 548 F.3d at 701-02 (holding than this list is illustrative

and adding a clerk’s minute order to the list). In other words,

we think that Shepard adequately addresses the claim that

Taylor permits only a narrowly limited inquiry into the facts.

We may inquire into the facts necessary to a conviction only

to the extent they are discernable from the limited set of docu-

ments approved in Shepard. But we need not ignore such

facts when they are available in those documents.

Once we acknowledge that “actually required” means

something like “actually required in light of the facts the

defendant admitted” or “actually required in light of the facts

referred to in jury instructions,” there is little logical differ-

ence between divisible statutes and missing-element statutes

in terms of when the modified categorical approach may

appropriately be applied. In both cases, courts must rely on

the same set of documents reflecting the facts necessarily

found by the trier of fact in support of the conviction; they

cannot look to any different documents or facts when consid-

ering a conviction under a missing-element statute than they

would when reviewing a conviction under a divisible element

statute. If the defendant could not have been convicted of the

offense of conviction unless the trier of fact found the facts

that satisfy the elements of the generic crime, then the fact-

finder necessarily found the elements of the generic crime.

Consider again our example of the situation in which the

generic aggravated assault offense requires (1) harmful con-

UNITED STATES v. AGUILA-MONTES DE OCA 10617

tact and (2) the use of a gun, whereas the statute of conviction

requires only harmful contact. If the Shepard documents

establish that the factfinder necessarily found that the defen-

dant satisfied the “harmful contact” element by inflicting

harmful contact with a gun, then the conviction “necessarily

rested” on this fact. Take, for example, an indictment alleging

that the defendant used a gun to inflict harmful contact on a

victim from 200 feet away. Or, perhaps the defendant admit-

ted in a guilty plea to shooting the victim. Either way, the fac-

tfinder was actually required to find the facts that satisfy the

elements of generic aggravated assault, which is all that Tay-

lor requires.

[10] There is an important limitation on our analysis of the

modified categorical approach. Although we have concluded

that a missing-element statute can be examined under the

modified categorical approach, a court must exercise caution

in determining what facts a conviction “necessarily rested”

on. It is not enough that an indictment merely allege a certain

fact or that the defendant admit to a fact; the fact must be nec-

essary to convicting that defendant.

This limitation is important not just because of Taylor and

Shepard but because of an important fairness concern raised

by Judge Kozinski in his Li concurrence. In Li, he argued that

applying the modified categorical approach to the missing ele-

ment situation is “unfair to defendants because it denies them

notice and a reasonable opportunity to rebut the charges

against them.” 389 F.3d at 900 (Kozinski, J., concurring); see

also Berzon Op. at 10656-59. Where a particular fact is not

an element of the statute of conviction, he argued, the defen-

dant “ha[s] no reason to believe it w[ill] be relevant to his

conviction, and thus no reason to cast doubt on the govern-

ment’s evidence as to [that fact].” Li, 389 F.3d at 900 (Kozin-

ski, J., concurring). Even if the defendant “ha[s]

overwhelming evidence” contradicting the government’s

assertion as to the non-elemental fact, “presenting it to the

jury would [be] a waste of time and probably excluded as

10618 UNITED STATES v. AGUILA-MONTES DE OCA

irrelevant,” since the non-elemental fact is “not an element of

the offense for which he [i]s being tried.” Id.

Our circumscribed interpretation of the modified categori-

cal approach addresses this concern. If indeed a fact was nec-

essary to the defendant’s conviction, then the defendant

certainly has the incentive to contest that fact, even if that fact

is not separately listed as a statutory element of the crime. Let

us return to our example in which the generic aggravated

assault offense requires (1) harmful contact and (2) use of a

gun, whereas the statute of conviction requires only harmful

contact. Under our reading of the modified categorical

approach, if the Shepard documents establish that the defen-

dant satisfied the “harmful contact” element by inflicting

harmful contact with a gun, then the factfinder was “actually

required” to find that the defendant used a gun, and the con-

viction “necessarily rested” on this fact. In such a situation,

the defendant has every incentive to demonstrate that he did

not use a gun. If the defendant is successful in this showing,

he will have successfully refuted the only theory that the gov-

ernment put forward regarding how he committed the harmful

contact, and the jury will acquit him. On the other hand, if the

jury convicts the defendant, then we may be confident that the

jury determined that he used a gun, because such a determina-

tion was necessary given the government’s theory of guilt.

Once again, the fact that we may only rely on a narrow and

defined range of documents—the indictment, jury instruc-

tions, judicial findings, plea agreements, plea colloquies, and

the like—ensures that the defendant will have understood and

had an opportunity to contest all facts which are necessary to

his conviction.

Although our holding today is an expansion of the modified

categorical approach relative to Navarro-Lopez, our interpre-

tation of the modified categorical approach contains important

limitations to ensure that it remains a narrow exception to the

categorical approach. See Taylor, 495 U.S. at 602 (“Th[e] cat-

egorical approach . . . may permit the sentencing court to go

UNITED STATES v. AGUILA-MONTES DE OCA 10619

beyond the mere fact of conviction in a narrow range of cases

where a jury was actually required to find all the elements of

generic burglary.” (emphasis added)).

5

Our interpretation of the modified categorical approach

finds strong support in the uniformity principle underlying

Taylor. In finding that “ ‘burglary’ . . . must have some uni-

form definition independent of the labels employed by the

various States’ criminal codes,” the Taylor Court reasoned

that Congress’s intent in enacting the ACCA was to “pro-

tect[ ] offenders from the unfairness of having enhancement

depend upon the label employed by the State of conviction.”

495 U.S. at 589, 592; see also 28 U.S.C. § 991(b)(1)(B) (pur-

pose of establishing the United States Sentencing Commis-

sion was to “avoid[ ] unwanted sentencing disparities among

defendants with similar records who have been found guilty

of similar criminal conduct”). If the meaning of “burglary”

“depend[ed] on the definition adopted by the State of convic-

tion,” then “a person convicted of unlawful possession of a

firearm would, or would not, receive a sentence enhancement

based on exactly the same conduct, depending on whether the

State of his prior conviction happened to call that conduct

‘burglary.’ ” Taylor, 495 U.S. at 590-91. The Court pointed to

the statute at issue in Aguila’s case—California Penal Code

§ 459—and found it unreasonable that “a person imprudent

enough to shoplift or steal from an automobile in California

would be found . . . to have committed a burglary constituting

a ‘violent felony’ for enhancement purposes—yet a person

who did so in Michigan might not.” Id. at 591.

Yet this California-Michigan dilemma is precisely the

result produced by Navarro-Lopez’s “missing element” rule.

Under that restrictive rule, if the offense of conviction lacks

an element of the generic crime, a court may never look

beyond the terms of the statute to determine the factual basis

for a defendant’s conviction, even if the defendant specifi-

10620 UNITED STATES v. AGUILA-MONTES DE OCA

cally admits to facts that would satisfy the generic definition.

This rule means that certain state crimes can never be used for

enhancement or removability purposes. For example, because

California Penal Code § 459 arguably lacks the element of

unlawful or unprivileged entry, under Navarro-Lopez’s rule,

a person who violates this statute will never be considered to

have been convicted of generic burglary, regardless of what

he did or what he admitted to.19 See Aguila II, 553 F.3d at

1234 (“Even if we were to undertake a modified categorical

approach, we could not narrow the California statute by

amending it to include the restrictive elements of the Guide-

lines’ generic offense—namely, that the entry must have been

‘unlawful or unprivileged.’ ”). In other words, under Navarro-

Lopez, burglary in California is, categorically, not generic

burglary, and thus no one convicted of burglary in our

nation’s most populous state is eligible for a sentence

enhancement for having committed a “crime of violence.”

And in our circuit, the problem is not unique to California.

See Aguilar-Turcios, 582 F.3d at 1104-05 (Bybee, J., dissent-

ing) (observing that three of the nine states in the Ninth Cir-

cuit — California, Idaho, and Nevada — lack the unlawful

entry requirement and that burglary convictions in these states

would not qualify for enhancement under Navarro-Lopez).

By contrast, a person who commits the exact same offense

in a state whose burglary statute happens to require proof of

unlawful entry—say, Michigan—is subject to a sentence

19

Ironically, had California chosen to include the phrase “entry, whether

in a lawful or unlawful manner” to its definition of burglary—a nearly

meaningless change—then the statute would be divisible and the modified

categorical approach would clearly be applicable. The fact that California

chose not to include words that indicated the only two possible types of

entry into a building is the only reason that Judge Berzon believes we

should not apply the modified categorical approach. Such a principle

makes a defendant subject to a sentence enhancement turn entirely on the

location in which he committed the prior offense, the precise outcome that

Taylor sought to avoid in establishing a uniform definition of burglary.

See 495 U.S. at 590-91.

UNITED STATES v. AGUILA-MONTES DE OCA 10621

enhancement. The Court’s concern in Taylor with one kind of

formalism, in which every criminal act a state denominates as

a “burglary” counts (even when it shouldn’t), was not meant

to create a different kind of formalism, in which no criminal

act a state denominates as a “burglary” counts (even when it

should).

Our concern is thus both practical and pervasive. The pro-

cess of mapping a generic federal definition onto state crimes

—defined variously by a combination of common law defini-

tions, model penal codes, statutes, and judicial exposition—

has exposed the diversity of legal thought among state legisla-

tures and courts. See Woods, 576 F.3d at 413 (Easterbrook,

C.J., dissenting) (“It may be easy to tell when a person’s con-

duct was violent and aggressive, but whether a crime of con-

viction entails such conduct can be tricky, because it is

necessary to think through the many varieties of behavior

within a law’s domain. States did not write their statutes with

Begay in mind.”).20 Our approach avoids the excesses of

either kind of formalism. No system that requires us to map

a generic statute to a state statute will yield perfectly uniform

results, but the flexibility of the modified categorical

approach enables sentencing judges to come closer to satisfy-

ing the ideal of equal treatment of state convictions.

*****

[11] In sum, Navarro-Lopez’s “missing element” rule is

overruled, as are any subsequent cases to the extent that they

relied on that rule and are inconsistent with the revised modi-

20

Contrary to Judge Berzon’s suggestion, the states have no incentive

“to amend their criminal codes to better match the generic definitions con-

tained in the federal recidivist statutes.” Berzon Op. at 10680. But this is

not a problem of their creation. It is a problem created by our efforts to

understand how Congress intended federal sentences to account for prior

state convictions. Federal recidivism statutes may or may not be good pol-

icy, but we have an obligation to try to enforce this policy as even-

handedly as possible.

10622 UNITED STATES v. AGUILA-MONTES DE OCA

fied categorical approach discussed here. In any case requir-

ing the application of Taylor’s categorical approach, in the

event that we determine that the statute under which the

defendant or alien was previously convicted is categorically

broader than the generic offense, we may apply the modified

categorical approach. Under the modified categorical

approach, we determine, in light of the facts in the judicially

noticeable documents, (1) what facts the conviction necessar-

ily rested on (that is, what facts the trier of fact was actually

required to find); and (2) whether these facts satisfy the ele-

ments of the generic offense.

We turn now to Aguila’s particular case.

V

In 1988, Aguila was convicted of first-degree residential

burglary under California Penal Code § 459, which punishes

“[e]very person who enters [various structures] . . . with intent

to commit grand or petit larceny or any felony.” Following

Aguila’s 2004 conviction for illegal reentry after deportation,

in violation of 8 U.S.C. § 1326, the district court enhanced

Aguila’s sentence under U.S.S.G. § 2L1.2(b)(1)(A), holding

that his prior burglary conviction qualified as “burglary of a

dwelling” and therefore a “crime of violence” under the

Guidelines. U.S.S.G. § 2L1.2 cmt. n.1(B)(iii). Aguila argues

that his 1988 conviction does not qualify as a “burglary of a

dwelling” under either Taylor’s categorical or modified cate-

gorical approach because California Penal Code § 459 lacks

the element of “unlawful or unprivileged entry.”21 We address

the categorical and modified categorical approaches in turn.

21

Aguila made two other arguments for why the California statute is cat-

egorically broader than generic burglary: (1) the California statute covers

structures not covered by the generic definition of “building or structure,”

see Grisel, 488 F.3d at 848; and (2) the state offense includes broader aid-

ing and abetting liability than its generic counterpart, see Aguila I, 523

F.3d at 1075. Because we hold that Aguila’s prior conviction fails to sat-

isfy the generic element of “unlawful or unprivileged” entry under either

the categorical or modified categorical approach, we need not address

these arguments.

UNITED STATES v. AGUILA-MONTES DE OCA 10623

A

We have consistently held that California Penal Code § 459

is categorically broader than generic burglary because it con-

tains no requirement of “unlawful or unprivileged entry.” See,

e.g., Rodriguez-Rodriguez, 393 F.3d at 857; Velasco-Medina,

305 F.3d at 851; O’Neal, 937 F.2d at 1373, abrogated on

other grounds by statute as recognized by Garcia-Cruz, 40

F.3d at 988-89; see also Taylor, 495 U.S. at 599 (holding that

generic burglary “ha[s] the basic elements of unlawful or

unprivileged entry into, or remaining in, a building or struc-

ture, with intent to commit a crime” (emphasis added)).22

However, none of our cases have grappled with an unusual

aspect of California’s “burglary” definition and with an

22

Judge Rawlinson suggests that Taylor’s generic definition of burglary

actually lacks the element of unlawful or unprivileged entry altogether,

arguing that “[i]nclusion of the words ‘or remaining in’ signifies that the

Supreme Court did not interpret the generic federal crime of burglary as

necessarily requiring that the initial entry be unlawful or unprivileged.”

Rawlinson Op. at 10692. Indeed, the Court in Taylor did describe the

generic crime of burglary as involving “basic elements” of “unlawful or

unprivileged entry into, or remaining in, a building or structure, with intent

to commit a crime.” 495 U.S. at 599. But this language does not support

Judge Rawlinson’s interpretation. We think the proper reading of this

description would suggest that the words “unlawful or unprivileged” apply

with equal force to the acts of “entry into” a building and “remaining in”

a building. In other words, a person can commit burglary under this defini-

tion even if he enters a structure lawfully, subsequently loses his right to

remain in that structure, and opts to remain in the structure while forming

a felonious intent. This reading is supported by other language in the Tay-

lor opinion. See 495 U.S. at 599 (“A few States’ burglary statutes . . .

define burglary more broadly, e.g., by eliminating the requirement that the

entry be unlawful.” (emphasis added)); see also United States v. Schmidt,

623 F.3d 257, 262 (5th Cir. 2010) (“[T]he generic definition of burglary

always requires an element of unlawful or unprivileged entry or pres-

ence.”). Ignoring the words “unlawful or unprivileged,” as Judge Rawlin-

son would do in the context of a conviction for “remaining in” a building,

renders the words “unlawful or unprivileged” utterly superfluous, since a

conviction would qualify as a conviction for generic burglary any time it

alleged that the defendant was merely present in a building or structure

with felonious intent.

10624 UNITED STATES v. AGUILA-MONTES DE OCA

ambiguous aspect of the meaning of “unlawful or unprivi-

leged entry” under Taylor. See Snellenberger, 548 F.3d at

704-08 (M. Smith, J., dissenting). Because these issues are

crucial to our holding with respect to the modified categorical

approach, we find it necessary to address them here.

On its face, California Penal Code § 459 does not require

that the entry be “unlawful or unprivileged,” punishing a per-

son who merely “enters” a structure “with intent to commit

grand or petit larceny or any felony.” However, in a sense,

California case law does in fact require “unlawful or unprivi-

leged” entry. The seminal case on this issue is People v.

Barry, 29 P. 1026 (Cal. 1892), in which an appellant who had

been convicted of burglarizing a grocery store

contend[ed] that a grocery store, during business

hours, is a public place, and the defendant, as one of

the public, had a legal right to be there, or rather to

enter there; that the proprietors were doing business

with the general public; the public were invited to

enter; that therefore the defendant entered under an

invitation of the owners, and that, consequently, his

entry was lawful, and there can be no burglary when

there is a lawful entry.

Id. at 1026-27 (emphasis added). The California Supreme

Court rejected the appellant’s proposition that his entry was

lawful, stating: “To this reasoning, we can only say a party

who enters with the intention to commit a felony enters with-

out an invitation. He is not one of the public invited, nor is he

entitled, to enter.” Id. at 1027. In other words, when a person

enters a place that is generally open to the public with the

intent to commit a felony, the place is essentially not “public”

as to that person, and that person has entered unlawfully.

The court elaborated on this concept in People v. Gauze,

542 P.2d 1365 (Cal. 1975). While noting Barry’s holding

“that trespassory entry was no longer a necessary element of

UNITED STATES v. AGUILA-MONTES DE OCA 10625

burglary” under California law, the court stated that “Barry

and its progeny should not be read . . . to hold that a defen-

dant’s right to enter the premises is irrelevant.” Id. at 1367.

Rather, “[a] burglary remains an entry which invades a pos-

sessory right in a building.” Id. at 1367. Regarding the case

at hand, the court held

that defendant cannot be guilty of burglarizing his

own home. His entry into the apartment, even for a

felonious purpose, invaded no possessory right of

habitation; only the entry of an intruder could have

done so. More importantly defendant had an absolute

right to enter the apartment. This right, unlike that of

the store thief in Barry, did not derive from an

implied invitation to the public to enter for legal pur-

poses. It was a personal right that could not be con-

ditioned on the consent of defendant’s roommates.

Id.

Finally, the court sharply limited Gauze’s holding in Peo-

ple v. Frye, 959 P.2d 183 (Cal. 1998), overruled on other

grounds by People v. Doolin, 198 P.3d 11 (Cal. 2009). In

Frye, the court upheld the conviction of a defendant who had

committed burglary after entering a person’s cabin “at the

personal invitation of” a resident of the cabin. Id. at 212. The

court rejected the defendant’s argument that he could not be

convicted of burglary because his entry was lawful, finding

this argument to be “based on the erroneous premise that a

burglary has not occurred if a person enters a building with

the owner’s express consent.” Id. The court held that “[a]ny

person who enters a house or building with the intent to com-

mit a felony or theft is guilty of burglary[,] . . . even if he

enters with the owner’s or occupant’s consent.” Id. The court

construed Gauze to mean “that one may be convicted of bur-

glary even if he enters with consent, provided he does not

have an unconditional possessory right to enter.” Id. at 213

(quotation marks omitted). The case at hand was distinguish-

able from Gauze, the court decided, because “[a]lthough the

10626 UNITED STATES v. AGUILA-MONTES DE OCA

evidence show[ed] defendant was invited into the [owners’]

cabin[,] . . . there [wa]s no evidence from which to reasonably

infer defendant had an unconditional possessory right to

enter.” Id.

These cases demonstrate that it is not so much that Califor-

nia burglary law lacks the requirement of unlawful or unprivi-

leged entry; it simply contains a nuanced definition of

“unlawful or unprivileged” different from the common law

definition. Importantly, Barry, Gauze, and Frye all require

that a defendant form his felonious intent prior to entering the

structure. The nuance comes in where a defendant enters the

structure with some kind of (at least nominal) permission. In

these kinds of situations, California cases hold that whether

the defendant may be convicted of burglary depends on

whether the defendant has an “unconditional possessory right

to enter.” Id. (quotation marks omitted). A person has an

unconditional possessory right to enter his own home and

therefore “cannot be guilty of burglarizing his own home.”

Gauze, 542 P.2d at 1367. However, a person does not have an

unconditional possessory right to enter a grocery store or a

friend’s residence, and thus may be convicted of burglary if

he enters one of these structures with felonious intent even if

he has entered with nominal permission. See Barry, 29 P. at

1026-27; Frye, 959 P.2d at 212-13. In such a situation, Cali-

fornia law considers the entry to be unlawful. In sum, Califor-

nia’s definition of “unlawful or unprivileged entry” is entry

with felonious intent into a structure. Our task, under the cate-

gorical approach, is to compare this definition to Taylor’s

generic definition of “unlawful or unprivileged,” in order to

determine whether California law permits a conviction for

burglary that would not satisfy the “unlawful or unprivileged”

requirement of generic burglary. But Taylor did not explain

precisely what it meant by “unlawful or unprivileged entry”—

that is, whether it meant “unlawful or unprivileged” in the

California sense of that term or in a narrower sense. It simply

concluded “that Congress meant by ‘burglary’ the generic

sense in which the term is now used in the criminal codes of

UNITED STATES v. AGUILA-MONTES DE OCA 10627

most States,” and then defined “the generic, contemporary

meaning of burglary [to] contain[ ] at least the following ele-

ments: an unlawful or unprivileged entry into, or remaining

in, a building or other structure, with intent to commit a

crime.” 495 U.S. at 598.

Fortunately, the Court did provide us with some guidance

as to the meaning of “unlawful or unprivileged entry.” In a

footnote following its definition of generic burglary, the Court

stated:

This usage approximates that adopted by the drafters

of the Model Penal Code: ‘A person is guilty of bur-

glary if he enters a building or occupied structure, or

separately secured or occupied portion thereof, with

purpose to commit a crime therein, unless the prem-

ises are at the time open to the public or the actor

is licensed or privileged to enter.‘

Id. at 598 n.8 (quoting MODEL PENAL CODE § 221.1 (1980)

(“MPC”)) (emphasis added). Moreover, following its defini-

tion of burglary, the Court cited to a criminal law treatise,

which states that modern burglary statutes “generally require

that the entry be unprivileged,” and that “[a] more precise

way of describing this situation is by excluding those entries

of premises when they are open to the public or by a person

licensed or privileged to enter.” WAYNE R. LAFAVE AND

AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 8.13(a)

(1986) (emphasis added); see Taylor, 495 U.S. at 598.

Based on the use of the disjunctive “or” in both the Model

Penal Code and the LaFave and Scott definitions, it appears

that the Court meant its “unlawful or unprivileged” require-

ment to preclude conviction for burglary in two situations: (1)

where the premises are open to the public; and (2) where the

person is licensed or privileged to enter. The MPC elaborates

on these excluded situations as where

10628 UNITED STATES v. AGUILA-MONTES DE OCA

a servant enters his employer’s house as he normally

is privileged to do, intending on the occasion to steal

some silver; a shoplifter enters a department store

during business hours to steal from the counters; a

litigant enters the courthouse with intent to commit

perjury; [and where] a fireman called on to put out

a fire resolves, as he breaks down the door of the

burning house, to misappropriate some of the house-

holder’s belongings.

MPC § 221.1 cmt. at 69; see also LAFAVE AND SCOTT, supra,

§ 8.13(a) (describing the MPC’s definition as “a sound

approach”).

California law permits burglary convictions both where the

premises are open to the public and where the person is

licensed or privileged to enter under the above definitions.

Regarding the former situation, California permits a burglary

conviction where the person enters a place open to the public

so long as the person enters with the intent to commit a felony

and does not have an unconditional possessory right to enter.

In contrast, based on the authorities Taylor cites for its

generic definition, it appears that an entry is never “unlawful

or unprivileged” if “the premises are at the time open to the

public.” MPC § 221.1. California law also permits burglary

convictions where a person is licensed or privileged to enter

the structure. California law precludes conviction where the

alleged burglar has an unconditional possessory right to enter

the structure, but the MPC’s definition of “licensed or privi-

leged” precludes conviction in the additional situations of “a

servant [who] enters his employer’s house as he normally is

privileged to do, intending on occasion to steal some silver,”

and “a shoplifter [who] enters a department store during busi-

ness hours to steal from the counters.” MPC § 221.1(a) cmt.

at 69. In contrast, California law would permit convictions in

these situations—both the servant and the shoplifter could be

convicted because they would not have an unconditional pos-

UNITED STATES v. AGUILA-MONTES DE OCA 10629

sessory right to enter the structures involved and because they

entered with felonious intent. See Barry, 29 P. at 1026-27.

Taylor provides further support for the conclusion that Cal-

ifornia law permits convictions for burglary that lack the

generic requirement of “unlawful or unprivileged entry.”

Before setting out its definition of generic burglary, the Tay-

lor Court found it “implausible that Congress intended the

meaning of ‘burglary’ . . . to depend on the definition adopted

by the State of conviction,” as this “would mean that a person

convicted of unlawful possession of a firearm would, or

would not, receive a sentence enhancement based on exactly

the same conduct, depending on whether the State of his prior

conviction happened to call that conduct ‘burglary.’ ” 495

U.S. at 590-91. The Court went on: “For example, Michigan

. . . classifies burglaries into several grades of ‘breaking and

entering.’ In contrast, California defines ‘burglary’ so broadly

as to include shoplifting.” Id. at 591 (emphasis added) (cita-

tion omitted). The fact that the Court considered the inclusion

of shoplifting to indicate the breadth of California’s burglary

definition relative to other states’ definitions strongly indi-

cates that the Court did not consider shoplifting to involve an

“unlawful or unprivileged entry.”

[12] In sum, burglary under California Penal Code § 459

is categorically broader than generic burglary because Cali-

fornia’s definition of “unlawful or unprivileged entry,” unlike

the generic definition, permits a conviction for burglary of a

structure open to the public and of a structure that the defen-

dant is licensed or privileged to enter if the defendant enters

the structure with the intent to commit a felony.23 We turn

now to the modified categorical approach.

23

It is worth noting that, under the language we used in Part IV, Califor-

nia Penal Code § 459 can be classified as containing a “broad” definition

of “unlawful or unprivileged entry,” or missing the generic element of

unlicensed or unprivileged entry altogether. For our purposes, this distinc-

tion is irrelevant.

10630 UNITED STATES v. AGUILA-MONTES DE OCA

B

Our inquiry under the modified categorical approach is

whether the record demonstrates that Aguila’s conviction nec-

essarily rested on facts that satisfy the elements of “burglary

of a dwelling.” Our analysis as to the manner in which Cali-

fornia burglary is categorically broader than generic burglary

makes clear that the modified categorical approach is of no

help to the government in Aguila’s case.

The government submitted three documents. First, the gov-

ernment submitted the California court’s Certificate and

Order of Magistrate, which certified that Aguila and counsel

appeared before [the judge] in open court; that [the

judge] read the said complaint to said defendant; and

that [the judge] then asked the said defendant

whether he pleaded guilty to the offense(s) charged

in said complaint. . . . [T]he said defendant pleaded

guilty to the following offense(s) charged in said

complaint, to wit: Burglary, in violation of section

459, Penal Code, a Felony.

(Emphasis added.) In turn, Count 1 of the Felony Complaint

to which Aguila pled guilty alleges that:

On or about January 4, 1988, in the County of Los

Angeles, the crime of RESIDENTIAL BUR-

GLARY, in violation of PENAL CODE SECTION

459, a Felony, was committed by GUILLERMO

AGUILA, who did willfully and unlawfully enter an

inhabited dwelling house and trailer coach and

inhabited portion of a building occupied by Jacinto

Padilla, with the intent to commit larceny and any

felony.

(Emphasis added.) Finally, the government submitted the cer-

tified Abstract of Judgment, which confirms that Aguila was

UNITED STATES v. AGUILA-MONTES DE OCA 10631

in fact convicted of the first-degree residential burglary

offense alleged in Count 1 of the Felony Complaint.

When a defendant pleads guilty to a count, he admits the

factual allegations stated in that count. Rodriguez-Rodriguez,

393 F.3d at 857; Velasco-Medina, 305 F.3d at 852. The gov-

ernment argues that Aguila’s plea of guilty to the offense

charged in Count 1 of the Felony Complaint reveals that he

“unlawfully enter[ed]” the structure, and therefore that his

entry was “unlawful or unprivileged.” Under our cases apply-

ing the modified categorical approach to California Penal

Code § 459, the government is certainly on solid ground. We

have consistently held that the presence of the word “unlaw-

fully” in an indictment to which the defendant pled guilty (as

shown by the judgment of conviction) supplies the “unlawful

or unprivileged” requirement of the generic burglary defini-

tion. In Rodriguez-Rodriguez, for example, the defendant

“pled guilty to ‘willfully and unlawfully enter[ing] a building

with the intent to commit theft.’ ” 393 F.3d at 857 (alteration

in original). We relied on this indictment to hold that,

“[b]ecause [defendant’s] conviction included the unlawful

entry requirement absent in California’s statutory definition of

burglary, his conviction meets the definition of ‘burglary of

a dwelling’ under Taylor and is, therefore, a ‘crime of vio-

lence’ under the Sentencing Guidelines.” Id. at 857-858;

Smith, 390 F.3d at 664-66; Velasco-Medina, 305 F.3d at 852;

Williams, 47 F.3d at 995; Alvarez, 972 F.2d at 1005-06;

Dunn, 946 F.2d at 620; O’Neal, 937 F.2d at 1373.

However, these cases did not delve deeply into California’s

case law construing California Penal Code § 459. Our reading

of this case law leads us to conclude that Rodriguez-

Rodriguez and the cases using similar reasoning incorrectly

applied the modified categorical approach because, quite sim-

ply, the word “unlawfully” in Aguila’s indictment tells us

nothing about whether his entry was “unlawful or unprivi-

leged” in the generic sense.

10632 UNITED STATES v. AGUILA-MONTES DE OCA

As discussed above, although California Penal Code § 459

does not use the words “unlawful or unprivileged” to modify

the word “entry,” the California Supreme Court has indeed

established a form of an “unlawful or unprivileged entry”

requirement—it has required that the defendant’s felonious

intent be formed prior to the entry, and has permitted a bur-

glary conviction only where the defendant did not have an

unconditional possessory right to enter the structure. See, e.g.,

Gauze, 542 P.2d at 1367. We have determined today that the

main difference between California’s requirement of unlawful

entry and the generic definition’s requirement is that the

generic definition excludes entry into a structure open to the

public and entry into a structure that the defendant is licensed

or privileged to enter, while the California definition permits

conviction in these situations where the defendant entered

with the intent to commit a crime and did not have an uncon-

ditional possessory right to enter (such as with shoplifting).

The words “unlawfully enter” in Aguila’s indictment pro-

vide us with no indication as to whether Aguila was licensed

or privileged to enter Jacinto Padilla’s home or whether Padil-

la’s home was open to the public because, under California

law, such entries would be unlawful even if Aguila entered

the home with Padilla’s permission. We therefore disagree

with Judge Rawlinson’s contention that “[b]y pleading guilty

to unlawfully entering a dwelling occupied by someone else,

Aguila-Montes necessarily admitted that there was no

licensed or privileged entry premised on a possessory interest

or on the occupant’s informed consent.” Rawlinson Op. at

10695. To the contrary, because of California’s unusual

approach to defining unlawful or unprivileged entry, the

Shepard documents do not permit such an inference. Examin-

ing only those documents, we could not rule out the possibili-

ties that Aguila was attending a dinner party at Padilla’s

invitation; that Padilla was hosting an open house which

Aguila took advantage of; that Padilla had asked Aguila to

house-sit while he was away for vacation; or that Aguila had

a key to Padilla’s house, and that Padilla had told him he was

UNITED STATES v. AGUILA-MONTES DE OCA 10633

free to enter at any time unless he was planning to rob the

house.

[13] In short, conviction records for California burglary

cannot demonstrate that a defendant was convicted of generic

burglary unless they do something more than simply repeat

the elements of California burglary. Here, for example, if the

Felony Complaint to which Aguila pled guilty stated that

Aguila “did willfully and unlawfully enter a private inhabited

dwelling house without the owner’s consent,” the document

would have been sufficient to support a finding that Aguila

had committed generic burglary. They did not. The docu-

ments only reveal that Aguila pled guilty to the bare elements

of California burglary. Accordingly, under the modified cate-

gorical approach, the documents produced by the government

do not demonstrate that Aguila’s conviction necessarily rested

on facts satisfying the elements of the generic crime of “bur-

glary of a dwelling.”

VI

[14] Navarro-Lopez’s two-paragraph analysis with respect

to the modified categorical approach, including its “missing

element” rule, see 503 F.3d at 1073, is overruled. However,

Aguila’s conviction for first-degree residential burglary under

California Penal Code § 459 does not qualify as a “crime of

violence” under either the categorical or modified categorical

approach. Accordingly, we vacate the district court’s sentence

and remand to the original three-judge panel for consideration

of the remaining issues Aguila raised on appeal.

VACATED AND REMANDED.

10634 UNITED STATES v. AGUILA-MONTES DE OCA

BERZON, Circuit Judge, concurring in the judgment, joined

by Chief Judge KOZINSKI and Judges W. FLETCHER,

M. SMITH, and N.R. SMITH:

It is common ground—as it of course has to be—that Tay-

lor v. United States, the “grandfather” Supreme Court case on

the question of applying federal recidivism statutes to particu-

lar prior convictions, instructs sentencing courts assessing a

criminal defendant’s prior conviction to employ a “categorical

approach.” 495 U.S. 575, 600 (1990). Under that approach,

we are directed to consider the elements of the crime of con-

viction in general, not the conduct underlying the defendant’s

conviction in particular. Id. at 602. The problem we address

today arises when those elements and the requirements of the

federal recidivist statute in question do not match.

As to that question, Taylor tells us that the categorical

approach may be modified, but only “in a narrow range of

cases where [the trier of fact] was actually required to find all

the elements of [the] generic [crime].” Id. at 602 (emphases

added). This “modified categorical approach,” must remain

categorical, not factual or “circumstance-specific.” Nijhawan

v. Holder, 129 S. Ct. 2294, 2298 (2009); see Taylor, 495 U.S.

at 600-02. Were we to abandon the categorical focus, we have

been warned repeatedly, a number of practical and constitu-

tional difficulties would ensue. See Chambers v. United

States, 129 S. Ct. 687, 690 (2009); James v. United States,

550 U.S. 192, 214 (2007); Shepard v. United States, 544 U.S.

13, 25 (2005) (plurality op.); Shepard, 544 U.S. at 28

(Thomas, J., concurring); Taylor, 495 U.S. at 600-01.

The majority finds in these instructions license for sentenc-

ing courts to “consider[ ] to some degree the factual basis” of

a (possibly decades-old) prior conviction. Bybee op. at 10613.

So long as the sentencing court is “confident,” upon examin-

ing the “prosecutorial theory of the case” and “the facts put

forward by the government” in the earlier proceeding, that the

trier of fact was “required” (in a practical, but not legal,

UNITED STATES v. AGUILA-MONTES DE OCA 10635

sense) to find facts that would satisfy the generic crime, then

it may enhance a defendant’s sentence on that basis. Id. at

10615. And the sentencing court must do so not only when

there was a trial, but also where there was a guilty plea, and

thus no way to determine what “theory of the case” the non-

existent trier of fact must have adopted. Most crucially, the

sentencing court need no longer confine itself to the facts

related to the elements of the crime of conviction, even

though the prior proceeding, whether ended with a jury ver-

dict or a guilty plea, will have been concerned at bottom only

with assessing those elements, and even though elements have

long been the touchstone of the categorical and modified cate-

gorical approach.1 See Sykes v. United States, 131 S. Ct. 2267,

2272 (2011); Johnson v. United States, 130 S. Ct. 1265, 1272

(2010); Chambers, 129 S. Ct. at 690-91; Nijhawan, 129 S. Ct.

at 2297-98; Begay v. United States, 553 U.S. 137, 145 (2008);

Gonzales v. Duenas-Alvarez, 549 U.S. 183, 186-87 (2007);

Shepard, 544 U.S. at 19; Leocal v. Ashcroft, 543 U.S. 1, 7

(2004); Taylor, 495 U.S. at 600-02. In short, the majority has

converted the modified categorical approach into a modified

factual one.

The majority’s fact-based approach simply cannot be rec-

onciled with Taylor and its many Supreme Court progeny.

Taylor warned that “the practical difficulties and potential

unfairness of a factual approach are daunting,” and therefore

rejected a factual approach, even though “[i]n some cases, the

indictment or other charging paper might reveal the theory or

theories of the case presented to the jury.” Id. at 601. And the

1

“Elements” are those necessary and sufficient facts that, if proven (or

admitted), support a conviction for a particular crime. See United States

v. Beltran-Munguia, 489 F.3d 1042, 1045 (9th Cir. 2007) (“To constitute

an element of a crime, the particular factor in question needs to be a con-

stituent part of the offense [that] must be proved in every case to sustain

a conviction under a given statute.” (citation and quotation marks omitted,

alterations in original)); see generally Richardson v. United States, 526

U.S. 813, 817 (1999) (“Calling a particular kind of fact an ‘element’ car-

ries certain legal consequences.”).

10636 UNITED STATES v. AGUILA-MONTES DE OCA

Court has recognized that a fact-based approach has even less

traction in the guilty plea context. See id. at 601-02.

In adopting its fact-based approach, the majority overrules

our circuit’s controlling precedent; dismisses as “dicta” and

“illustrative” the Supreme Court’s clear guidance on this very

question, Bybee op. at 10599, 10606; misinterprets Taylor

and Shepard; ignores the constraints of the Sixth Amendment,

as developed in the Apprendi line of cases; misapprehends

several essential characteristics of our nation’s institutions of

criminal justice; and refuses to follow the limited modified

categorical approach adopted by every circuit that has

addressed the question since the Supreme Court made the

proper approach lucidly clear in the last few years—in partic-

ular, since Johnson and Nijhawan. Because I believe that the

modified categorical approach has been strictly limited to “di-

visible statutes,”2 I concur only in the judgment.

I.

Before delving into the “modified categorical” problem on

a conceptual level, I begin where intermediate appellate

judges ought to begin—with whether the issue before us is

open to fair dispute as a matter of binding Supreme Court pre-

cedent. Unlike the majority, I conclude that it definitely is not,

as virtually all other circuits have recently recognized.

As will appear, I do not think Taylor and Shepard ever

meant the modified categorical approach to go beyond what

the majority calls “divisible statutes.” Taylor and Shepard are

examined in detail below. Suffice it to say for present pur-

2

Like the majority, I use the term “divisible statute” as shorthand to

refer to a statute that lists alternative ways that one or more elements can

be established. Limiting the modified categorical approach to the “divisi-

ble statute” situation, as I would do, means that it may only be used to

determine under which express statutory alternative the defendant was

convicted.

UNITED STATES v. AGUILA-MONTES DE OCA 10637

poses that Taylor held that when determining whether a

defendant’s prior conviction qualifies under one of several

federal recidivist statutes, sentencing courts are ordinarily

instructed to compare the elements of the particular crime for

which the defendant was convicted with the elements of the

“generic” federal definition of that crime. See Taylor, 495

U.S. at 600-02. When the elements match, the conviction

qualifies for the recidivist enhancement. If, however, at least

one of the elements of the crime of conviction is written in the

disjunctive—criminalizing, for example, commission of an

act with “a gun or a knife”—and a conviction under one statu-

tory phrase (gun) would qualify under the federal recidivist

statute, while a conviction under the other phrase (knife)

would not, Taylor and Shepard allow the later sentencing

court to consult a short list of records about that prior convic-

tion to ascertain whether the crime of conviction meets the

federal definition. See id. at 602; Shepard, 544 U.S. at 26.

As I discuss later, the majority is right that the modified

categorical approach outlined in Taylor and Shepard was, at

times, interpreted differently in this court and in other circuits.

See Bybee op. at 10589-91, 10606-12. But Taylor and Shep-

ard are no longer the last word. It is therefore most useful to

start with the Supreme Court’s recent cases, Nijhawan v.

Holder, 129 S. Ct. 2294 (2009), and Johnson v. United States,

130 S. Ct. 1265 (2010), as they dispel any ambiguity concern-

ing the reach of Taylor and Shepard. Nijhawan and Johnson

indicated in the clearest of terms that the modified categorical

approach is reserved for determining under which portion of

a divisible statute a defendant was convicted.

A.

Nijhawan considered a provision of immigration law that

authorizes removal of non-citizens who have a prior convic-

tion for “an offense that . . . involves fraud or deceit in which

the loss to the victim or victims exceeds $10,000.” 129 S. Ct.

at 2297 (alteration and emphasis in original) (quoting 8

10638 UNITED STATES v. AGUILA-MONTES DE OCA

U.S.C. § 1101(a)(43)(M)(i)). The Court was called upon to

consider “whether the italicized language refers to an element

of the fraud or deceit ‘offense’ as set forth in the particular

fraud or deceit statute defining the offense of which the alien

was previously convicted.” Id. “If so,” Nijhawan explained,

“then in order to determine whether a prior conviction is for

the kind of offense described, the immigration judge must

look to the criminal fraud or deceit statute to see whether it

contains a monetary threshold of $10,000 or more.” Id. (citing

Taylor, 495 U.S. 575) (emphasis added). After extensive tex-

tual analysis, see id. at 2298-2302, Nijhawan concluded that

because the italicized language in the aggravated felony defi-

nition “does not refer to an element of the fraud or deceit

crime,” it required a factual inquiry into the amount of loss

actually occasioned by the alien’s particular prior criminal

conduct, rather than a categorical inquiry into the elements of

the prior conviction offense. Id. at 2298-99 (emphasis added).

The Court’s reasoning in Nijhawan could not be clearer: if

the loss threshold referred to an element of the generic crime,

then a crime of conviction would only qualify if “the criminal

fraud or deceit statute . . . contains a monetary threshold of

$10,000 or more.” Id. at 2297. In other words, Nijhawan envi-

sions a binary world of federal recidivism statutes: Factual

inquiries into the circumstances of prior convictions are per-

mitted if, but only if, the federal statute does not refer to the

element of the prior crimes, but to the underlying circum-

stances of the prior crime—in which case the entire Taylor

categorical analysis is inapplicable. See id. at 2298-2302.

The remainder of Nijhawan confirms this conclusion in

spades. The petitioner in Nijhawan argued that even if the

$10,000 loss threshold was not an element of the prior crime,

the factual inquiry into the nature of that crime should be lim-

ited to the same documents in the record of conviction to

which Shepard limits sentencing courts under the modified

categorical approach. See 129 S. Ct. at 2302-03. The Court

UNITED STATES v. AGUILA-MONTES DE OCA 10639

rejected the argument for several reasons, two of which are

particularly relevant here.

First, Nijhawan said that “Taylor, James, and Shepard, the

cases that developed the evidentiary list to which petitioner

points, developed that list for a very different purpose, namely

that of determining which statutory phrase (contained within

a statutory provision that covers several different generic

crimes) covered a prior conviction.” Id. at 2303 (emphasis

added). Nijhawan then referred to its earlier description of the

modified categorical approach, in which it explained that:

[T]he categorical method is not always easy to

apply. Sometimes a separately numbered subsection

of a criminal statute will refer to several different

crimes, each described separately. And it can happen

that some of these crimes involve violence while

others do not. A single Massachusetts statute section

entitled “Breaking and Entering at Night,” for exam-

ple, criminalizes breaking into a “building, ship, ves-

sel or vehicle.” In such an instance, we have said, a

court must determine whether an offender’s prior

conviction was for the violent, rather than the nonvi-

olent, break-ins that this single five-word phrase

describes (e.g., breaking into a building rather than

into a vessel), by examining the indictment or infor-

mation and jury instructions, or, if a guilty plea is at

issue, by examining the plea agreement, plea collo-

quy or some comparable judicial record of the fac-

tual basis for the plea.

Id. at 2299 (emphasis added, citations and quotation marks

omitted).

The second reason the Court gave for not restricting sen-

tencing courts to the Shepard-sanctioned documents in ascer-

taining the loss amount was that “[this] proposal itself can

prove impractical insofar as it requires obtaining from a jury

10640 UNITED STATES v. AGUILA-MONTES DE OCA

a special verdict on a fact that . . . is not an element of the

offense.” Id. at 2303 (emphasis added).

In short, Nijhawan is crystal clear: The modified categori-

cal approach is used to determine under which provision of a

divisible statute a defendant was convicted, and it cannot be

used to find non-elemental facts. The majority discusses

Nijhawan (although tellingly, it does not mention its “special

verdict” reasoning) but brushes its guidance aside as “dicta.”

Bybee op. at 10599. Regardless of one’s definition of “dicta,”

this isn’t it.

Nijhawan’s discussion of the scope, purpose, and applica-

bility of the categorical and modified categorical approach to

Nijhawan’s case was in direct response to arguments briefed

and pressed by the parties. The arguments were further devel-

oped in four amicus curiae briefs and in the opinions of the

Third Circuit, Nijhawan v. Att’y Gen. of the U.S., 523 F.3d

387 (3d Cir. 2008), and the Board of Immigration Appeals, In

re Nijhawan, No. A39 075 734, 2006 WL 3088788 (B.I.A.

Aug. 8, 2006). There is no concern, therefore, that the issues

were not adequately presented—or, as Judge Posner has put

it, that they “w[ere] not refined by the fires of adversary pre-

sentation.” United States v. Crawley, 837 F.2d 291, 293 (7th

Cir. 1988).

Moreover, as explained above, the Court’s holding—that a

categorical approach is inapplicable to non-elemental facts,

and, consequently, the court or agency may rely on non-

elemental facts only where a statute permits a non-categorical

approach—was ultimately dispositive of Nijhawan’s case.

The Court’s extended discussion of the categorical and modi-

fied categorical approach was thus “grounded in the facts of

the case,” id., and was certainly “ ‘germane to [its] eventual

resolution,’ ” Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186

(9th Cir. 2003) (per curiam) (citation omitted). These were

not “statement[s] . . . uttered in passing without due consider-

ation of the alternatives.” United States v. Johnson, 256 F.3d

UNITED STATES v. AGUILA-MONTES DE OCA 10641

895, 915 (9th Cir. 2001) (en banc) (Kozinski, J., concurring).

Additionally, since these holdings were part of the logical rea-

soning provided in support of Nijhawan’s outcome, the rea-

sons that the Court gave for its conclusions cannot be

described as “unnecessary,” Miller v. Gammie, 335 F.3d 889,

902 (9th Cir. 2003) (en banc) (Tashima, J., concurring), any

more than the ground floor is “unnecessary” to a multi-story

building. So while the majority may find it convenient to dis-

miss Nijhawan’s pertinent reasoning as mere “dicta,” that

does not make it so. Further, even if it were dicta, as the

majority suggests—and again, it certainly is not—we must

“treat Supreme Court dicta with due deference,” not brush it

aside, as the majority does. United States v. Baird, 85 F.3d

450, 453 (9th Cir. 1996). “As we have frequently acknowl-

edged, Supreme Court dicta have a weight that is greater than

ordinary judicial dicta as prophecy of what that Court might

hold; accordingly, we do not blandly shrug them off because

they were not a holding.” United States v. Montero-Camargo,

208 F.3d 1122, 1132 n.17 (9th Cir. 2000) (en banc) (citation

and quotation marks omitted).

B.

Were Nijhawan not clear enough—and it is—Johnson dis-

pels any remaining doubt. Johnson held that a conviction

under Florida’s divisible battery statute, Fla. Stat. § 784.03,

was not categorically a violent felony because the statute

encompassed convictions for “any intentional physical con-

tact, no matter how slight.” Johnson, 130 S. Ct. at 1269-70

(citation and quotation marks omitted). Such convictions, the

Supreme Court held, lacked the “violent force” necessary to

make a conviction thereunder a “violent felony” for purposes

of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B).

See Johnson, 130 S. Ct. at 1271. The dissenters objected that

this holding would make it more difficult to remove non-

citizens convicted under that statute and other “generic

felony-battery statutes that cover both violent force and

10642 UNITED STATES v. AGUILA-MONTES DE OCA

unwanted physical contact.” Id. at 1273 (characterizing dis-

senting opinion of Alito, J.). The Court responded:

This exaggerates the practical effect of our decision.

When the law under which the defendant has been

convicted contains statutory phrases that cover sev-

eral different generic crimes, some of which require

violent force and some of which do not, the “modi-

fied categorical approach” that we have approved

permits a court to determine which statutory phrase

was the basis for the conviction by consulting the

trial record . . . .

Id. (citation and quotation marks omitted).

The majority reads Johnson’s description of the functioning

of the modified categorical approach as merely “illustrative.”

Bybee op. at 10606. But it gives no reason to take such a view

of this passage in Johnson, and there is none. Johnson sought

to highlight the flexibility that the modified categorical

approach provides. So, if the modified categorical approach

does, as the majority in this case maintains, allow the sentenc-

ing court to examine “the facts put forward by the govern-

ment” in the earlier proceeding to determine the facts on

which the conviction must have rested, Bybee op. at 10615,

the Supreme Court had every reason to say so. That Johnson

instead contemplates a far more circumscribed, less flexible

inquiry—one limited to identifying “which statutory phrase

was the basis for the conviction,” 130 S. Ct. at 1273—

confirms that nothing more is permissible.

The majority says that it has “several reasons” for declining

to follow the clear import of Nijhawan and Johnson, but it

only names two. Both amount to the assertion that since the

Supreme Court did not say explicitly that we cannot do what

the majority now does, it’s fair game. See Bybee op. at 10605.

Not so. If we dutifully apply the principles enunciated by the

UNITED STATES v. AGUILA-MONTES DE OCA 10643

Supreme Court, we can only conclude that the modified cate-

gorical approach applies only to divisible statutes.

C.

Seeking support for its conclusion that the question we

address is an open one in the Supreme Court, the majority

incorrectly maintains that the other courts of appeal are in

broad disagreement as to the correct modified categorical

approach. In fact, since 2008, and especially since Nijhawan,

there has been a steady march toward applying the modified

categorical approach only to divisible statutes.

It is fair to say that the courts of appeals—including this

one—failed at first fully to appreciate the outer limits of the

categorical and modified categorical approaches. At one time,

the courts of appeals settled into essentially three camps:

Some, recognizing that juries are never required to find facts

that go beyond the elements of the crime, ruled that the modi-

fied categorical approach is available only to determine under

which portion of a divisible statute the defendant was con-

victed. See, e.g., United States v. Smith, 544 F.3d 781, 786-87

(7th Cir. 2008); United States v. Howell, 531 F.3d 621, 622-

23 (8th Cir. 2008); United States v. Gonzalez-Terrazas, 529

F.3d 293, 297-98 (5th Cir. 2008). Other courts applied the

modified categorical approach more liberally, finding that

prior convictions rested on facts that appeared nowhere in the

statute of conviction. See, e.g., United States v. Armstead, 467

F.3d 943, 947-48 (6th Cir. 2006); Vargas v. Dep’t of Home-

land Sec., 451 F.3d 1105, 1108-09 (10th Cir. 2006).

In this circuit, after considerable waffling, we struck a mid-

dle course, interpreting Taylor and Shepard to permit resort

to the modified categorical approach to find generic facts that

are fairly encompassed within an element of the statute of

conviction—i.e., in both what the majority terms the “divisi-

ble statute” and “broad element” situation, see Bybee op. at

10593-95—but not when the generic element was entirely

10644 UNITED STATES v. AGUILA-MONTES DE OCA

missing. Navarro-Lopez v. Gonzales, 503 F.3d 1063, 1073

(9th Cir. 2007) (en banc).3 This approach required a connec-

tion between the generic fact to be found at sentencing and

the elements found in the prior proceeding, and so provided

assurance that facts mined from the record of conviction

would have been viewed by the parties to the prior proceeding

as material and thus worth contesting. See also Li v. Ashcroft,

389 F.3d 892, 900 (9th Cir. 2004) (Kozinski, J., concurring).

This three-way split is gone. The majority strains mightily

to manufacture ambiguity in the jurisprudence of a few cir-

cuits, see Bybee op. at 10606-12, but the stark reality is that

since Nijhawan and Johnson, every circuit to examine the

issue has applied an approach consistent with those two cases’

pronouncements, the majority’s relegation of those pro-

nouncements to the “dicta” wastebasket notwithstanding.

For example, the majority cites two Tenth Circuit cases

(from 2006 and 2007, respectively) as support for a fact-based

approach. See id. at 10610-11 & n.15. But those cases do not

allow a sentencing court to review non-element facts.4 More-

3

The majority, joined by Judge Rawlinson and her co-dissenters, sug-

gests that Navarro-Lopez precludes us from applying the modified cate-

gorical approach to broad-element statutes. See Bybee op. at 10594-95;

Rawlinson op. at 10684. That’s wrong. See Navarro-Lopez, 503 F.3d at

1073.

4

The 2007 case merely rejected a defendant’s argument that in calculat-

ing his criminal history category under the Sentencing Guidelines, the dis-

trict court should be prohibited from examining any documents not

permitted under Shepard. See United States v. Townley, 472 F.3d 1267,

1277 (10th Cir. 2007). In other words, Townley is not about the modified

categorical approach at all.

The 2006 case, on the other hand, did use the modified categorical

approach to determine that a particular conviction under Colorado Revised

Statutes § 18-6-701 (for “induc[ing], aid[ing], or encourag[ing] a child to

violate any federal or state law, municipal or county ordinance, or court

order commits contributing to the delinquency of a minor”) constituted the

aggravated felony of sexual abuse of a minor. See Vargas v. Dep’t of

UNITED STATES v. AGUILA-MONTES DE OCA 10645

over, the majority overlooks later Tenth Circuit case law clari-

fying further that the modified categorical approach “does not

involve a subjective inquiry into the facts of the case, but

rather its purpose is to determine ‘which part of the statute

was charged against the defendant and, thus, which portion of

the statute to examine on its face.’ ” United States v. Charles,

576 F.3d 1060, 1067 (10th Cir. 2009). Indeed, in 2008 the

Tenth Circuit resolved an intra-circuit split that involved, at

times, cases that were “not always focused on the elements of

the prior conviction.” United States v. Zuniga-Soto, 527 F.3d

1110, 1121 (10th Cir. 2008). The Tenth Circuit resolved this

conflict by declaring that when determining whether a prior

conviction was for a “crime of violence,” thereby qualifying

the defendant for a sentencing enhancement, courts “must

consider only the statutory definition of the prior offense and

not the specific factual circumstances underlying the defen-

dant’s conviction.”5 Id.

Homeland Sec., 451 F.3d 1105, 1108-09 (10th Cir. 2006). As the majority

points out, the predicate offense (that the suspect allegedly induced the

minor to commit) “could be anything from jaywalking to murder.” Id. at

1109. What the majority omits, however, is that “the specific predicate

offense must be charged and proved as an element of the offense of con-

tributing to the delinquency of a minor.” Id. In other words, the statute is

divisible; as Vargas explained, “to convict a defendant of contributing to

the delinquency of a minor, the jury ‘necessarily ha[s] to find’ a specified

predicate offense that the defendant induced, aided, or encouraged the

child to violate.” Id. (quoting Taylor, 495 U.S. at 602) (alteration in origi-

nal). One element of the offense to which the Vargas defendant pleaded

guilty was that he had “induced, aided, or encouraged the minor” to

engage in “nonconsensual sexual contact,” in violation of Colorado

Revised Statutes § 18-3-404. Id. Vargas thus concluded—upon examina-

tion of only the elements of the crime of conviction—that the defendant

had been convicted of the generic crime of sexual abuse of a minor. See

id. The majority is thus left without support for its contention that the

Tenth Circuit applies the modified categorical approach to find non-

elemental facts.

5

The majority acknowledges that Zuniga-Soto adopted a “divisible-

statute-only rule,” but argues that its reach is circumscribed. Bybee op. at

10611 n.15. But even if that is true, no one can contest that the Tenth Cir-

cuit applies a “divisible-statute-only rule” in circumstances where the

majority would not.

10646 UNITED STATES v. AGUILA-MONTES DE OCA

The majority similarly, and similarly erroneously, claims

support for its open-ended approach from a 2006 case from

the Sixth Circuit, United States v. Armstead, 467 F.3d 943,

947-48 (6th Cir. 2006). Bybee op. at 10608-12 & n.13. But in

United States v. Bartee, 529 F.3d 357 (6th Cir. 2008), the

Sixth Circuit rejected an argument that presaged the analysis

adopted by the majority.

The criminal defendant in Bartee had been previously con-

victed of violating a statute that criminalizes “sexual contact

with another person . . . . under circumstances involving the

commission of any other felony.” Mich. Comp. Laws Ann.

§ 750.520c(1)(c); see Bartee, 529 F.3d at 360. The informa-

tion to which the defendant had pleaded guilty identified the

“other felony” as “solicitation of a minor for immoral pur-

poses.” Id. The information even identified the individual

with whom the defendant had sexual contact while soliciting

a minor for immoral purposes as “Angela,” and there was no

dispute in Bartee that Angela was 15 years old. Id. at 360-61.

The Government conceded that the defendant’s conviction for

criminal sexual contact lacked the federal generic crime’s ele-

ment of contact with a minor, but urged the court to “use

‘common sense’ to infer that since the defendant had sexual

contact with Angela ‘while’ soliciting a minor, Angela must

have been that minor and, therefore, the sexual contact must

have been with a minor.” Id. at 361.

The Sixth Circuit emphatically rejected the Government’s

argument. Although it recognized that “this [inference]

appears to have been the case factually,” the court agreed

“with defendant that, categorically speaking, the conviction

did not necessarily require proof of sexual contact with a

minor.” Id. Bartee in fact criticized the district court for per-

mitting “facts [to] invade[ ] [its] analysis.” Id.6

6

Subsequent panels of the Sixth Circuit have adhered to Bartee’s

approach, maintaining that the modified categorical approach is only

appropriate in the divisible statute situation and disavowing earlier Sixth

Circuit cases indicating otherwise. See United States v. Young, 580 F.3d

373, 380 n.8 (6th Cir. 2009); see also Kellermann v. Holder, 592 F.3d 700,

703 (6th Cir. 2010).

UNITED STATES v. AGUILA-MONTES DE OCA 10647

Some other examples: Citing a 2004 case, the majority

claims that the Third Circuit’s approach is “ambiguous.”

Bybee op. at 10611-12 & n.16. Whether or not that is a fair

characterization of the Third Circuit case cited,7 the Third Cir-

cuit now consistently applies the divisible statute approach.

Jean-Louis v. Attorney General of the United States, 582 F.3d

462 (3d Cir. 2009), summarized that approach:

Where a statute of conviction contains disjunctive

elements, some of which are sufficient for conviction

of the federal offense and others of which are not,

we have departed from a strict categorical approach.

In such a case, we have conducted a limited factual

inquiry, examining the record of conviction for the

narrow purpose of determining the specific subpart

under which the defendant was convicted.

Id. at 466; see also Thomas v. Att’y Gen. of U.S., 625 F.3d

134, 143-47 (3d Cir. 2010); United States v. Stinson, 592 F.3d

460, 462 (3d Cir. 2010); United States v. Johnson, 587 F.3d

203, 208, 214 (3d Cir. 2009).

7

It is not. Knapik v. Ashcroft, 384 F.3d 84, 92 n.8 (3d Cir. 2004), cited

by the majority for its “ambiguous” label, principally addressed a different

problem. Specifically, Knapik held (as Nijhawan did later) that the modi-

fied categorical approach does not apply where a statute requires an

inquiry into a fact underlying the prior conviction. See also Nijhawan, 523

F.3d at 391-92, aff’d, 129 S. Ct. 2304. As to the problem before us,

Knapik indicated agreement with the “divisible statute” approach. See 384

F.3d at 92 n.8. The case on which the Knapik relied, Singh v. Ashcroft, 383

F.3d 144 (3d Cir. 2003), refused to apply the modified categorical

approach to determine whether the alien had been convicted of the aggra-

vated felony of “sexual abuse of a minor,” 8 U.S.C. § 1101(a)(43)(A).

Singh explained that although the record was quite clear that the victim

“was under sixteen years of age,” 383 F.3d at 147, “a finding of the age

of the victim [was] not required for conviction” under the state statute, and

therefore the conviction could not be considered an aggravated felony. Id.

at 153.

10648 UNITED STATES v. AGUILA-MONTES DE OCA

The majority similarly, and incorrectly, describes the state

of the law in the Second and Eleventh Circuits as “ambigu-

ous.” Bybee op. at 10611-12 & nn. 15 & 17. Not so. Both the

Second8 and Eleventh9 Circuit restrict the modified categori-

cal approach to the divisible statute situation. The majority’s

attempt to muddy the Seventh Circuit’s jurisprudence is simi-

larly unavailing, as that circuit also refuses to apply the modi-

fied categorical approach unless the statute is divisible.10 See

8

See, e.g., Lanferman v. Bd. of Immigration Appeals, 576 F.3d 84, 88-

89 (2d Cir. 2009) (per curiam) (“The modified categorical approach calls

for a two-step inquiry: first, we determine if the statute is divisible, such

that some categories of proscribed conduct render an alien removable and

some do not; second, we consult the record of conviction to ascertain the

category of conduct of which the alien was convicted.” (quotation marks

omitted)); United States v. Mills, 570 F.3d 508, 511 (2d Cir. 2009) (per

curiam); Hoodho v. Holder, 558 F.3d 184, 189 (2d Cir. 2008); Martinez

v. Mukasey, 551 F.3d 113, 120 (2d Cir. 2008); Gertsenshteyn v. U.S. Dep’t

of Justice, 544 F.3d 137, 143 (2d Cir. 2008) (same). In fact, Judge Bybee

previously wrote that “[t]he Second . . . Circuit[ ] appear[s] to require that

the statute be divisible; that is, the statute of conviction contain at least one

subsection that meets the generic definition, even if another section would

not satisfy the definition.” Aguilar-Turcios v. Holder, 582 F.3d 1093, 1109

n.8 (9th Cir. 2009) (Bybee, J., dissenting). The Second Circuit has not

changed its rule since Aguilar-Turcios was published.

9

See United States v. Palomino Garcia, 606 F.3d 1317, 1336-37 (11th

Cir. 2010) (“[W]hen the law under which a defendant has been convicted

contains different statutory phrases—some of which require the use of

force and some of which do not—the judgment is ambiguous and we

apply a ‘modified categorical approach.’ Under this approach, a court may

determine which statutory phrase was the basis for the conviction by con-

sulting a narrow universe of ‘Shepard documents.’ ” (citations omitted)).

10

The majority maintains that United States v. Fife, 624 F.3d 441 (7th

Cir. 2010) shows that the Seventh Circuit has wavered from its divisible-

statute-only rule by holding that an Illinois statute that states that “[a] per-

son commits armed violence when, while armed with a dangerous

weapon, he commits any felony defined by Illinois Law, except [various

enumerated crimes]” is a divisible statute. 720 Ill. Comp. Stat. 5/33A-2(a)

(2007). The majority argues that, “in our terminology [Fife] defined

‘divisible statute’ in a manner that would encompass missing element stat-

utes.” Bybee op. at 10608. That’s wrong. The Illinois crime of “armed vio-

lence” has two elements: (1) while armed with a dangerous weapon, the

UNITED STATES v. AGUILA-MONTES DE OCA 10649

United States v. Sonnenberg, 628 F.3d 361, 367 (7th Cir.

2010) (refusing to apply the modified categorical approach to

the statute at issue, as it “simply was not drafted so as to be

divisible in th[e] [relevant] manner,” and even though the

conduct underlying the conviction was clear); United States v.

Woods, 576 F.3d 400, 406 (7th Cir. 2009); United States v.

Smith, 544 F.3d 781, 786-87 (7th Cir. 2008).

The final count: All of our sister circuits (except for the

District of Columbia Circuit, which apparently has had no

occasion to weigh in on whether the modified categorical

approach applies beyond the divisible statute context11) now

apply the modified categorical approach only to divisible stat-

utes.12 By overruling Navarro-Lopez, our circuit becomes the

only one to expand the scope of our modified categorical

inquiries in the wake of the Supreme Court’s recent, lucid

direction that we narrowly restrict them.

defendant (2) commits any felony under Illinois law, with a few enumer-

ated exceptions. See 720 Ill. Comp. Stat. 5/33A-2(a). It is true that the stat-

ute does not incorporate a list of the state-law felonies that would meet the

second element. But there is no need, as a comprehensive list of those

qualifying crimes was readily ascertainable by referencing the rest of the

state-law code. As Fife pointed out, “[t]he point is that the statute itself is

‘divisible’—that is, it expressly identifies several ways in which a viola-

tion may occur.” Fife, 624 F.3d at 446 (citation omitted).

11

There is good reason to think that the District of Columbia Circuit

would not adopt the “theory of the case” approach advocated by the

majority. See, e.g., In re Sealed Case, 548 F.3d 1085, 1091 (D.C. Cir.

2008) (“[U]nder Shepard the question is not what [the defendant] proba-

bly pled to, but what he necessarily pled to.”).

12

The majority acknowledges that this is the rule in the First, Fourth,

Fifth, and Eighth circuits. See United States v. Giggey (Giggey I), 551

F.3d 27, 40 (1st Cir. 2008) (en banc); see also United States v. Giggey

(Giggey II), 589 F.3d 38, 41-42 (1st Cir. 2009); United States v. Rivers,

595 F.3d 558, 564 (4th Cir. 2010); United States v. Hughes, 602 F.3d 669,

676 (5th Cir. 2010); United States v. Gonzalez-Terrazas, 529 F.3d 293,

297-98 (5th Cir. 2008); United States v. Ossana, 638 F.3d 895, 904 (8th

Cir. 2011); United States v. Webster, 636 F.3d 916, 919 (8th Cir. 2011);

United States v. Boaz, 558 F.3d 800, 808 (8th Cir. 2009).

10650 UNITED STATES v. AGUILA-MONTES DE OCA

II.

Even were we free to ignore the more recent Supreme

Court cases—and of course we are not—the majority could

not adopt the rule that the modified categorical approach is

available to find any facts the jury “must have found.” Bybee

op. at 10613. Taylor and Shepard simply do not admit of that

interpretation.

A.

Taylor considered a conviction under a state burglary stat-

ute.13 495 U.S. at 578 n.1. The Court first concluded that

crimes described by federal recidivism statutes must be under-

stood generically—that is, as describing uniform elements

rather than the elements defined by each state’s law. Id. at

592. After defining the generic crime of burglary, Taylor

turned to the problem of determining whether a particular

state conviction was for the generic, federally-defined crime

—here and in Taylor, the crime of burglary. Framing the

choice of approaches to this problem as “whether the sentenc-

ing court . . . must look only to the statutory definitions of the

prior offenses, or whether the court may consider other evi-

dence concerning the defendant’s prior crimes,” Taylor

adopted the then-uniform position of the courts of appeals,

that courts must look “only to the statutory definition[ ].” Id.

at 600 (citing, inter alia, United States v. Chatman, 869 F.2d

525, 529 (9th Cir. 1989), and United States v. Sherbondy, 865

F.2d 996, 1006-10 (9th Cir. 1988)).

Taylor then directly addressed the question before us today:

How do we match a prior state convictio

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