Mathis v. United States

(Slip Opinion) OCTOBER TERM, 2015 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MATHIS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE EIGHTH CIRCUIT

No. 15–6092. Argued April 26, 2016—Decided June 23, 2016

The Armed Career Criminal Act (ACCA) imposes a 15-year mandatory

minimum sentence on a defendant convicted of being a felon in pos-

session of a firearm who also has three prior state or federal convic-

tions “for a violent felony,” including “burglary, arson, or extortion.”

18 U. S. C. §§924(e)(1), (e)(2)(B)(ii). To determine whether a prior

conviction is for one of those listed crimes, courts apply the “categori-

cal approach”—they ask whether the elements of the offense forming

the basis for the conviction sufficiently match the elements of the ge-

neric (or commonly understood) version of the enumerated crime.

See Taylor v. United States, 495 U. S. 575, 600–601. “Elements” are

the constituent parts of a crime’s legal definition, which must be

proved beyond a reasonable doubt to sustain a conviction; they are

distinct from “facts,” which are mere real-world things—extraneous

to the crime’s legal requirements and thus ignored by the categorical

approach.

When a statute defines only a single crime with a single set of ele-

ments, application of the categorical approach is straightforward.

But when a statute defines multiple crimes by listing multiple, alter-

native elements, the elements-matching required by the categorical

approach is more difficult. To decide whether a conviction under

such a statute is for a listed ACCA offense, a sentencing court must

discern which of the alternative elements was integral to the defend-

ant’s conviction. That determination is made possible by the “modi-

fied categorical approach,” which permits a court to look at a limited

class of documents from the record of a prior conviction to determine

what crime, with what elements, a defendant was convicted of before

comparing that crime’s elements to those of the generic offense. See,

e.g., Shepard v. United States, 544 U. S. 13, 26. This case involves a

2 MATHIS v. UNITED STATES

Syllabus

different type of alternatively worded statute—one that defines only

one crime, with one set of elements, but which lists alternative factu-

al means by which a defendant can satisfy those elements.

Here, petitioner Richard Mathis pleaded guilty to being a felon in

possession of a firearm. Because of his five prior Iowa burglary con-

victions, the Government requested an ACCA sentence enhancement.

Under the generic offense, burglary requires unlawful entry into a

“building or other structure.” Taylor, 495 U. S., at 598. The Iowa

statute, however, reaches “any building, structure, [or] land, water,

or air vehicle.” Iowa Code §702.12. Under Iowa law, that list of plac-

es does not set out alternative elements, but rather alternative

means of fulfilling a single locational element.

The District Court applied the modified categorical approach,

found that Mathis had burgled structures, and imposed an enhanced

sentence. The Eighth Circuit affirmed. Acknowledging that the Iowa

statute swept more broadly than the generic statute, the court de-

termined that, even if “structures” and “vehicles” were not separate

elements but alternative means of fulfilling a single element, a sen-

tencing court could still invoke the modified categorical approach.

Because the record showed that Mathis had burgled structures, the

court held, the District Court’s treatment of Mathis’s prior convic-

tions as ACCA predicates was proper.

Held: Because the elements of Iowa’s burglary law are broader than

those of generic burglary, Mathis’s prior convictions cannot give rise

to ACCA’s sentence enhancement. Pp. 7–19.

(a) This case is resolved by this Court’s precedents, which have re-

peatedly held, and in no uncertain terms, that a state crime cannot

qualify as an ACCA predicate if its elements are broader than those

of a listed generic offense. See, e.g., Taylor, 495 U. S., at 602. The

“underlying brute facts or means” by which the defendant commits

his crime, Richardson v. United States, 526 U. S. 813, 817, make no

difference; even if the defendant’s conduct, in fact, fits within the def-

inition of the generic offense, the mismatch of elements saves him

from an ACCA sentence. ACCA requires a sentencing judge to look

only to “the elements of the [offense], not to the facts of [the] defend-

ant’s conduct.” Taylor, 495 U. S., at 601.

This Court’s cases establish three basic reasons for adhering to an

elements-only inquiry. First, ACCA’s text, which asks only about a

defendant’s “prior convictions,” indicates that Congress meant for the

sentencing judge to ask only whether “the defendant had been con-

victed of crimes falling within certain categories,” id., at 600, not

what he had done. Second, construing ACCA to allow a sentencing

judge to go any further would raise serious Sixth Amendment con-

cerns because only a jury, not a judge, may find facts that increase

Cite as: 579 U. S. ____ (2016) 3

Syllabus

the maximum penalty. See Apprendi v. New Jersey, 530 U. S. 466,

490. And third, an elements-focus avoids unfairness to defendants,

who otherwise might be sentenced based on statements of “non-

elemental fact[s]” that are prone to error because their proof is un-

necessary to a conviction. Descamps v. United States, 570 U. S. ___,

___.

Those reasons remain as strong as ever when a statute, like Iowa’s

burglary statute, lists alternative means of fulfilling one (or more) of

a crime’s elements. ACCA’s term “convictions” still supports an ele-

ments-based inquiry. The Sixth Amendment problems associated

with a court’s exploration of means rather than elements do not abate

in the face of a statute like Iowa’s: Alternative factual scenarios re-

main just that, and thus off-limits to sentencing judges. Finally, a

statute’s listing of disjunctive means does nothing to mitigate the

possible unfairness of basing an increased penalty on something not

legally necessary to a prior conviction. Accordingly, whether means

are listed in a statute or not, ACCA does not care about them; rather,

its focus, as always, remains on a crime’s elements. Pp. 7–16.

(b) The first task for a court faced with an alternatively phrased

statute is thus to determine whether the listed items are elements or

means. That threshold inquiry is easy here, where a State Supreme

Court ruling answers the question. A state statute on its face could

also resolve the issue. And if state law fails to provide clear answers,

the record of a prior conviction itself might prove useful to determin-

ing whether the listed items are elements of the offense. If such rec-

ord materials do not speak plainly, a sentencing judge will be unable

to satisfy “Taylor’s demand for certainty.” Shepard, 544 U. S., at 21.

But between the record and state law, that kind of indeterminacy

should prove more the exception than the rule. Pp. 16–18.

786 F. 3d 1068, reversed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. KENNEDY,

J., and THOMAS, J., filed concurring opinions. BREYER, J., filed a dis-

senting opinion, in which GINSBURG, J., joined. ALITO, J., filed a dis-

senting opinion.

Cite as: 579 U. S. ____ (2016) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6092

_________________

RICHARD MATHIS, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 23, 2016]

JUSTICE KAGAN delivered the opinion of the Court.

The Armed Career Criminal Act (ACCA or Act), 18

U. S. C. §924(e), imposes a 15-year mandatory minimum

sentence on certain federal defendants who have three

prior convictions for a “violent felony,” including “burglary,

arson, or extortion.” To determine whether a past convic-

tion is for one of those offenses, courts compare the ele-

ments of the crime of conviction with the elements of the

“generic” version of the listed offense—i.e., the offense as

commonly understood. For more than 25 years, our deci-

sions have held that the prior crime qualifies as an ACCA

predicate if, but only if, its elements are the same as, or

narrower than, those of the generic offense. The question

in this case is whether ACCA makes an exception to

that rule when a defendant is convicted under a statute

that lists multiple, alternative means of satisfying one

(or more) of its elements. We decline to find such an

exception.

I

A

ACCA prescribes a 15-year mandatory minimum sen-

tence if a defendant is convicted of being a felon in posses-

2 MATHIS v. UNITED STATES

Opinion of the Court

sion of a firearm following three prior convictions for a

“violent felony.” §924(e)(1). (Absent that sentence en-

hancement, the felon-in-possession statute sets a 10-year

maximum penalty. See §924(a)(2).) ACCA defines the

term “violent felony” to include any felony, whether state

or federal, that “is burglary, arson, or extortion.”

§924(e)(2)(B)(ii). In listing those crimes, we have held,

Congress referred only to their usual or (in our terminol-

ogy) generic versions—not to all variants of the offenses.

See Taylor v. United States, 495 U. S. 575, 598 (1990).

That means as to burglary—the offense relevant in this

case—that Congress meant a crime “contain[ing] the

following elements: an unlawful or unprivileged entry into

. . . a building or other structure, with intent to commit a

crime.” Ibid.

To determine whether a prior conviction is for generic

burglary (or other listed crime) courts apply what is

known as the categorical approach: They focus solely on

whether the elements of the crime of conviction sufficiently

match the elements of generic burglary, while ignoring

the particular facts of the case. See id., at 600–601. Dis-

tinguishing between elements and facts is therefore cen-

tral to ACCA’s operation. “Elements” are the “constituent

parts” of a crime’s legal definition—the things the “prose-

cution must prove to sustain a conviction.” Black’s Law

Dictionary 634 (10th ed. 2014). At a trial, they are what

the jury must find beyond a reasonable doubt to convict

the defendant, see Richardson v. United States, 526 U. S.

813, 817 (1999); and at a plea hearing, they are what the

defendant necessarily admits when he pleads guilty, see

McCarthy v. United States, 394 U. S. 459, 466 (1969).

Facts, by contrast, are mere real-world things—

extraneous to the crime’s legal requirements. (We have

sometimes called them “brute facts” when distinguishing

them from elements. Richardson, 526 U. S., at 817.) They

are “circumstance[s]” or “event[s]” having no “legal effect

Cite as: 579 U. S. ____ (2016) 3

Opinion of the Court

[or] consequence”: In particular, they need neither be

found by a jury nor admitted by a defendant. Black’s Law

Dictionary 709. And ACCA, as we have always under-

stood it, cares not a whit about them. See, e.g., Taylor,

495 U. S., at 599–602. A crime counts as “burglary” under

the Act if its elements are the same as, or narrower than,

those of the generic offense. But if the crime of conviction

covers any more conduct than the generic offense, then it

is not an ACCA “burglary”—even if the defendant’s actual

conduct (i.e., the facts of the crime) fits within the generic

offense’s boundaries.

The comparison of elements that the categorical ap-

proach requires is straightforward when a statute sets out

a single (or “indivisible”) set of elements to define a single

crime. The court then lines up that crime’s elements

alongside those of the generic offense and sees if they

match. So, for example, this Court found that a California

statute swept more broadly than generic burglary because

it criminalized entering a location (even if lawfully) with

the intent to steal, and thus encompassed mere shoplift-

ing. See id., at 591; Descamps v. United States, 570 U. S.

___, ___–___ (2013) (slip op., at 5–6). Accordingly, no

conviction under that law could count as an ACCA predi-

cate, even if the defendant in fact made an illegal entry

and so committed burglary in its generic form. See id., at

___–___ (slip op., at 22–23).

Some statutes, however, have a more complicated

(sometimes called “divisible”) structure , making the com-

parison of elements harder. Id., at ___ (slip op., at 5). A

single statute may list elements in the alternative, and

thereby define multiple crimes. Suppose, for example,

that the California law noted above had prohibited “the

lawful entry or the unlawful entry” of a premises with

intent to steal, so as to create two different offenses, one

more serious than the other. If the defendant were con-

victed of the offense with unlawful entry as an element,

4 MATHIS v. UNITED STATES

Opinion of the Court

then his crime of conviction would match generic burglary

and count as an ACCA predicate; but, conversely, the

conviction would not qualify if it were for the offense with

lawful entry as an element. A sentencing court thus re-

quires a way of figuring out which of the alternative ele-

ments listed—lawful entry or unlawful entry—was inte-

gral to the defendant’s conviction (that is, which was

necessarily found or admitted). See id., at ___ (slip op., at

6). To address that need, this Court approved the “modi-

fied categorical approach” for use with statutes having

multiple alternative elements. See, e.g., Shepard v. United

States, 544 U. S. 13, 26 (2005). Under that approach, a

sentencing court looks to a limited class of documents (for

example, the indictment, jury instructions, or plea agree-

ment and colloquy) to determine what crime, with what

elements, a defendant was convicted of. See ibid.; Taylor,

495 U. S., at 602. The court can then compare that crime,

as the categorical approach commands, with the relevant

generic offense.

This case concerns a different kind of alternatively

phrased law: not one that lists multiple elements disjunc-

tively, but instead one that enumerates various factual

means of committing a single element. See generally

Schad v. Arizona, 501 U. S. 624, 636 (1991) (plurality

opinion) (“[L]egislatures frequently enumerate alternative

means of committing a crime without intending to define

separate elements or separate crimes”). To use a hypo-

thetical adapted from two of our prior decisions, suppose a

statute requires use of a “deadly weapon” as an element of

a crime and further provides that the use of a “knife, gun,

bat, or similar weapon” would all qualify. See Descamps,

570 U. S., at ___ (slip op., at 16); Richardson, 526 U. S., at

817. Because that kind of list merely specifies diverse

means of satisfying a single element of a single crime—or

otherwise said, spells out various factual ways of commit-

ting some component of the offense—a jury need not find

Cite as: 579 U. S. ____ (2016) 5

Opinion of the Court

(or a defendant admit) any particular item: A jury could

convict even if some jurors “conclude[d] that the defendant

used a knife” while others “conclude[d] he used a gun,”

so long as all agreed that the defendant used a “deadly

weapon.” Ibid.; see Descamps, 570 U. S., at ___ (slip op.,

at 14) (describing means, for this reason, as “legally extra-

neous circumstances”). And similarly, to bring the discus-

sion back to burglary, a statute might—indeed, as soon

discussed, Iowa’s burglary law does—itemize the various

places that crime could occur as disjunctive factual scenar-

ios rather than separate elements, so that a jury need not

make any specific findings (or a defendant admissions) on

that score.

The issue before us is whether ACCA treats this kind of

statute as it does all others, imposing a sentence en-

hancement only if the state crime’s elements correspond to

those of a generic offense—or instead whether the Act

makes an exception for such a law, so that a sentence can

be enhanced when one of the statute’s specified means

creates a match with the generic offense, even though the

broader element would not.

B

Petitioner Richard Mathis pleaded guilty to being a

felon in possession of a firearm. See §922(g). At sentenc-

ing, the Government asked the District Court to impose

ACCA’s 15-year minimum penalty based on Mathis’s five

prior convictions for burglary under Iowa law.

Iowa’s burglary statute, all parties agree, covers more

conduct than generic burglary does. See Brief for Peti-

tioner 36; Brief for United States 44. The generic offense

requires unlawful entry into a “building or other struc-

ture.” Taylor, 495 U. S., at 598; supra, at 2. Iowa’s stat-

ute, by contrast, reaches a broader range of places: “any

building, structure, [or] land, water, or air vehicle.” Iowa

Code §702.12 (2013) (emphasis added). And those listed

6 MATHIS v. UNITED STATES

Opinion of the Court

locations are not alternative elements, going toward the

creation of separate crimes. To the contrary, they lay out

alternative ways of satisfying a single locational element,

as the Iowa Supreme Court has held: Each of the terms

serves as an “alternative method of committing [the]

single crime” of burglary, so that a jury need not agree on

which of the locations was actually involved. State v.

Duncan, 312 N. W. 2d 519, 523 (Iowa 1981); see State v.

Rooney, 862 N. W. 2d 367, 376 (Iowa 2015) (discussing the

single “broadly phrased . . . element of place” in Iowa’s

burglary law). In short, the statute defines one crime,

with one set of elements, broader than generic burglary—

while specifying multiple means of fulfilling its locational

element, some but not all of which (i.e., buildings and

other structures, but not vehicles) satisfy the generic

definition.

The District Court imposed an ACCA enhancement on

Mathis after inspecting the records of his prior convictions

and determining that he had burgled structures, rather

than vehicles. See App. 34–35. The Court of Appeals for

the Eighth Circuit affirmed. 786 F. 3d 1068 (2015). It

acknowledged that Iowa’s burglary statute, by covering

vehicles in addition to structures, swept more broadly

than generic burglary. See id., at 1074. But it noted that

if structures and vehicles were separate elements, each

part of a different crime, then a sentencing court could

invoke the modified categorical approach and look to old

record materials to see which of those crimes the defend-

ant had been convicted of. See id., at 1072–1074. And the

Court of Appeals thought nothing changed if structures

and vehicles were not distinct elements but only alterna-

tive means: “Whether [such locations] amount to alterna-

tive elements or merely alternative means to fulfilling an

element,” the Eighth Circuit held, a sentencing court

“must apply the modified categorical approach” and in-

spect the records of prior cases. Id., at 1075. If the court

Cite as: 579 U. S. ____ (2016) 7

Opinion of the Court

found from those materials that the defendant had in fact

committed the offense in a way that satisfied the defini-

tion of generic burglary—here, by burgling a structure

rather than a vehicle—then the court should treat the

conviction as an ACCA predicate. And that was so, the

Court of Appeals stated, even though the elements of the

crime of conviction, in encompassing both types of loca-

tions, were broader than those of the relevant generic

offense. See id., at 1074–1075. In this circumstance, the

court thus found, ACCA’s usual elements-based inquiry

would yield to a facts-based one.

That decision added to a Circuit split over whether

ACCA’s general rule—that a defendant’s crime of convic-

tion can count as a predicate only if its elements match

those of a generic offense—gives way when a statute

happens to list various means by which a defendant can

satisfy an element.1 We granted certiorari to resolve that

division, 577 U. S. ___ (2016), and now reverse.

II

A

As just noted, the elements of Mathis’s crime of convic-

tion (Iowa burglary) cover a greater swath of conduct than

the elements of the relevant ACCA offense (generic bur-

glary). See supra, at 5–6. Under our precedents, that

undisputed disparity resolves this case. We have often

held, and in no uncertain terms, that a state crime cannot

qualify as an ACCA predicate if its elements are broader

than those of a listed generic offense. See, e.g., Taylor, 495

U. S., at 602. How a given defendant actually perpetrated

the crime—what we have referred to as the “underlying

——————

1 Compare 786 F. 3d 1068 (CA8 2015) (case below) (recognizing such

an exception); United States v. Ozier, 796 F. 3d 597 (CA6 2015) (same);

United States v. Trent, 767 F. 3d 1046 (CA10 2014) (same), with Ren-

don v. Holder, 764 F. 3d 1077 (CA9 2014) (rejecting that exception);

Omargharib v. Holder, 775 F. 3d 192 (CA4 2014) (same).

8 MATHIS v. UNITED STATES

Opinion of the Court

brute facts or means” of commission, Richardson, 526

U. S., at 817—makes no difference; even if his conduct fits

within the generic offense, the mismatch of elements saves

the defendant from an ACCA sentence. Those longstand-

ing principles, and the reasoning that underlies them,

apply regardless of whether a statute omits or instead

specifies alternative possible means of commission. The

itemized construction gives a sentencing court no special

warrant to explore the facts of an offense, rather than to

determine the crime’s elements and compare them with

the generic definition.

Taylor set out the essential rule governing ACCA cases

more than a quarter century ago. All that counts under

the Act, we held then, are “the elements of the statute of

conviction.” 495 U. S., at 601. So, for example, the label a

State assigns to a crime—whether “burglary,” “breaking

and entering,” or something else entirely—has no rele-

vance to whether that offense is an ACCA predicate. See

id., at 590–592. And more to the point here: The same is

true of “the particular facts underlying [the prior] convic-

tions”—the means by which the defendant, in real life,

committed his crimes. Id., at 600. That rule can seem

counterintuitive: In some cases, a sentencing judge knows

(or can easily discover) that the defendant carried out a

“real” burglary, even though the crime of conviction also

extends to other conduct. No matter. Under ACCA, Tay-

lor stated, it is impermissible for “a particular crime [to]

sometimes count towards enhancement and sometimes

not, depending on the facts of the case.” Id., at 601. Ac-

cordingly, a sentencing judge may look only to “the ele-

ments of the [offense], not to the facts of [the] defendant’s

conduct.” Ibid.

That simple point became a mantra in our subsequent

ACCA decisions.2 At the risk of repetition (perhaps down-

——————

2 So too in our decisions applying the categorical approach outside the

Cite as: 579 U. S. ____ (2016) 9

Opinion of the Court

right tedium), here are some examples. In Shepard:

ACCA “refers to predicate offenses in terms not of prior

conduct but of prior ‘convictions’ and the ‘element[s]’ of

crimes.” 544 U. S., at 19 (alteration in original). In James

v. United States: “[W]e have avoided any inquiry into the

underlying facts of [the defendant’s] particular offense,

and have looked solely to the elements of [burglary] as

defined by [state] law.” 550 U. S. 192, 214 (2007). In

Sykes v. United States: “[W]e consider [only] the elements

of the offense[,] without inquiring into the specific conduct

of this particular offender.” 564 U. S. 1, 7 (2011) (quoting

James, 550 U. S., at 202; emphasis in original). And most

recently (and tersely) in Descamps: “The key [under

ACCA] is elements, not facts.” 570 U. S., at ___ (slip op.,

at 5).

Our decisions have given three basic reasons for adher-

ing to an elements-only inquiry. First, ACCA’s text favors

that approach. By enhancing the sentence of a defendant

who has three “previous convictions” for generic burglary,

§924(e)(1)—rather than one who has thrice committed

that crime—Congress indicated that the sentencer should

ask only about whether “the defendant had been convicted

of crimes falling within certain categories,” and not about

what the defendant had actually done. Taylor, 495 U. S.,

at 600. Congress well knows how to instruct sentencing

judges to look into the facts of prior crimes: In other stat-

utes, using different language, it has done just that. See

United States v. Hayes, 555 U. S. 415, 421 (2009) (conclud-

ing that the phrase “an offense . . . committed” charged

sentencers with considering non-elemental facts); Nijha-

wan v. Holder, 557 U. S. 29, 36 (2009) (construing an

——————

ACCA context—most prominently, in immigration cases. See, e.g.,

Kawashima v. Holder, 565 U. S. 478, 482–483 (2012) (stating that a

judge must look to the “formal element[s] of a conviction[,] rather than

to the specific facts underlying the crime,” in deciding whether to

deport an alien for committing an “aggravated felony”).

10 MATHIS v. UNITED STATES

Opinion of the Court

immigration statute to “call[ ] for a ‘circumstance-specific,’

not a ‘categorical’ interpretation”). But Congress chose

another course in ACCA, focusing on only “the elements of

the statute of conviction.” Taylor, 495 U. S., at 601.

Second, a construction of ACCA allowing a sentencing

judge to go any further would raise serious Sixth Amend-

ment concerns. This Court has held that only a jury, and

not a judge, may find facts that increase a maximum

penalty, except for the simple fact of a prior conviction.

See Apprendi v. New Jersey, 530 U. S. 466, 490 (2000).

That means a judge cannot go beyond identifying the

crime of conviction to explore the manner in which the

defendant committed that offense. See Shepard, 544

U. S., at 25 (plurality opinion); id., at 28 (THOMAS, J.,

concurring in part and concurring in judgment) (stating

that such an approach would amount to “constitutional

error”). He is prohibited from conducting such an inquiry

himself; and so too he is barred from making a disputed

determination about “what the defendant and state judge

must have understood as the factual basis of the prior

plea” or “what the jury in a prior trial must have accepted

as the theory of the crime.” See id., at 25 (plurality opin-

ion); Descamps, 570 U. S., at ___ (slip op., at 14). He can

do no more, consistent with the Sixth Amendment, than

determine what crime, with what elements, the defendant

was convicted of.

And third, an elements-focus avoids unfairness to de-

fendants. Statements of “non-elemental fact” in the rec-

ords of prior convictions are prone to error precisely be-

cause their proof is unnecessary. Id., at ___ (slip op., at

15). At trial, and still more at plea hearings, a defendant

may have no incentive to contest what does not matter

under the law; to the contrary, he “may have good reason

not to”—or even be precluded from doing so by the court.

Ibid. When that is true, a prosecutor’s or judge’s mistake

as to means, reflected in the record, is likely to go uncor-

Cite as: 579 U. S. ____ (2016) 11

Opinion of the Court

rected. See ibid.3 Such inaccuracies should not come back

to haunt the defendant many years down the road by

triggering a lengthy mandatory sentence.

Those three reasons stay as strong as ever when a stat-

ute, instead of merely laying out a crime’s elements, lists

alternative means of fulfilling one (or more) of them.

ACCA’s use of the term “convictions” still supports an

elements-based inquiry; indeed, that language directly

refutes an approach that would treat as consequential a

statute’s reference to factual circumstances not essential

to any conviction. Similarly, the Sixth Amendment prob-

lems associated with a court’s exploration of means rather

than elements do not abate in the face of a statute like

Iowa’s: Whether or not mentioned in a statute’s text,

alternative factual scenarios remain just that—and so

remain off-limits to judges imposing ACCA enhancements.

And finally, a statute’s listing of disjunctive means does

nothing to mitigate the possible unfairness of basing an

increased penalty on something not legally necessary to a

prior conviction. Whatever the statute says, or leaves out,

about diverse ways of committing a crime makes no differ-

ence to the defendant’s incentives (or lack thereof ) to

contest such matters.

For these reasons, the court below erred in applying the

——————

3 To see the point most clearly, consider an example arising in the

immigration context: A defendant charged under a statute that crimi-

nalizes “intentionally, knowingly, or recklessly” assaulting another—as

exists in many States, see, e.g., Tex. Penal Code Ann. §22.01(a)(1) (West

Cum. Supp. 2015)—has no apparent reason to dispute a prosecutor’s

statement that he committed the crime intentionally (as opposed to

recklessly) if those mental states are interchangeable means of satisfy-

ing a single mens rea element. But such a statement, if treated as

reliable, could make a huge difference in a deportation proceeding years

in the future, because an intentional assault (unlike a reckless one)

qualifies as a “crime involving moral turpitude,” and so requires re-

moval from the country. See In re Gomez-Perez, No. A200–958–511,

p. 2 (BIA 2014).

12 MATHIS v. UNITED STATES

Opinion of the Court

modified categorical approach to determine the means by

which Mathis committed his prior crimes. 786 F. 3d, at

1075. ACCA, as just explained, treats such facts as irrele-

vant: Find them or not, by examining the record or any-

thing else, a court still may not use them to enhance a

sentence. And indeed, our cases involving the modified

categorical approach have already made exactly that

point. “[T]he only [use of that approach] we have ever

allowed,” we stated a few Terms ago, is to determine

“which element[s] played a part in the defendant’s convic-

tion.” Descamps, 570 U. S., at ___, ___ (slip op., at 5, 8)

(emphasis added); see Taylor, 495 U. S., at 602 (noting

that the modified approach may be employed only to de-

termine whether “a jury necessarily had to find” each

element of generic burglary). In other words, the modified

approach serves—and serves solely—as a tool to identify

the elements of the crime of conviction when a statute’s

disjunctive phrasing renders one (or more) of them

opaque. See Descamps, 570 U. S., at ___ (slip op., at 8).4

It is not to be repurposed as a technique for discovering

whether a defendant’s prior conviction, even though for a

too-broad crime, rested on facts (or otherwise said, in-

volved means) that also could have satisfied the elements

of a generic offense.

——————

4 Descamps made the point at some length, adding that the modified

categorical approach “retains the categorical approach’s central feature:

a focus on the elements, rather than the facts, of a crime. And it

preserves the categorical approach’s basic method: comparing those

elements with the generic offense’s. All the modified approach adds is a

mechanism for making that comparison when a statute lists multiple,

alternative elements, and so effectively creates ‘several different . . .

crimes.’ If at least one, but not all of those crimes matches the generic

version, a court needs a way to find out which the defendant was

convicted of. That is the job, as we have always understood it, of the

modified approach: to identify, from among several alternatives, the

crime of conviction so that the court can compare it to the generic

offense.” 570 U. S., at ___ (slip op., at 8) (citation omitted).

Cite as: 579 U. S. ____ (2016) 13

Opinion of the Court

B

The Government and JUSTICE BREYER claim that our

longtime and exclusive focus on elements does not resolve

this case because (so they say) when we talked about

“elements,” we did not really mean it. “[T]he Court used

‘elements,’ ” the Government informs us, “not to distin-

guish between ‘means’ and ‘elements,’ ” but instead to refer

to whatever the statute lists—whether means or elements.

Brief for United States 8; see id., at 19. In a similar vein,

JUSTICE BREYER posits that every time we said the word

“element,” we “used the word generally, simply to refer to

the matter at issue,” without “intend[ing] to set forth a

generally applicable rule.” Post, at 11–12 (dissenting

opinion).

But a good rule of thumb for reading our decisions is

that what they say and what they mean are one and the

same; and indeed, we have previously insisted on that

point with reference to ACCA’s elements-only approach.

In Descamps, the sole dissenting Justice made an argu-

ment identical to the one now advanced by the Govern-

ment and JUSTICE BREYER: that our prior caselaw had not

intended to distinguish between statutes listing alterna-

tive elements and those setting out “merely alternative

means” of commission. 570 U. S., at ___ (slip op., at 7)

(opinion of ALITO, J.).5 The Court rejected that contention,

——————

5 In another solo dissent, JUSTICE ALITO today switches gears, arguing

not that our precedent is consistent with his means-based view, but

instead that all of our ACCA decisions are misguided because all follow

from an initial wrong turn in Taylor v. United States, 495 U. S. 575

(1990). See post, at 2–3. To borrow the driving metaphor of his own

dissent, JUSTICE ALITO thus locates himself entirely off the map of our

caselaw. But that is not surprising; he has harshly criticized the

categorical approach (and Apprendi too) for many years. See, e.g.,

Johnson v. United States, 576 U. S. ___, ___–___ (2015) (ALITO, J.,

dissenting) (slip op., at 8–13); Descamps, 570 U. S., at ___–___ (ALITO,

J., dissenting) (slip op., at 4–5); Moncrieffe v. Holder, 569 U. S. ___,

___–___ (2013) (ALITO, J., dissenting) (slip op., at 10–11); Chambers v.

14 MATHIS v. UNITED STATES

Opinion of the Court

stating that “[a]ll those decisions rested on the explicit

premise that the laws contain[ed] statutory phrases that

cover several different crimes, not several different meth-

ods of committing one offense”—in other words, that they

listed alternative elements, not alternative means. Id., at

___, n. 2 (slip op., at 9, n. 2) (ellipsis and internal quota-

tion marks omitted); see, e.g., Johnson v. United States,

559 U. S. 133, 144 (2010); Nijhawan, 557 U. S., at 35.

That premise was important, we explained, because an

ACCA penalty may be based only on what a jury “neces-

sarily found” to convict a defendant (or what he necessar-

ily admitted). Descamps, 570 U. S., at ___, ___ (slip op., at

11, 17). And elements alone fit that bill; a means, or (as

we have called it) “non-elemental fact,” is “by definition[ ]

not necessary to support a conviction.” Id., at ___, n. 3, __

(slip op., at 11, n. 3, 15); see supra, at 2.6 Accordingly,

——————

United States, 555 U. S. 122, 132–134 (2009) (ALITO, J., concurring in

judgment); see also Hurst v. Florida, 577 U. S. ___, ___ (2016) (ALITO,

J., dissenting) (slip op., at 2); Alleyne v. United States, 570 U. S. ___,

___–___ (2013) (ALITO, J., dissenting) (slip op., at 1–2).

6 JUSTICE BREYER’s dissent rests on the idea that, contrary to that

long-accepted definition, a jury sometimes does “necessarily ha[ve] to

find” a means of commission, see post, at 6 (quoting Taylor, 495 U. S.,

at 602)—but Descamps specifically refuted that argument too. In that

case, JUSTICE ALITO made the selfsame claim: A jury, he averred,

should be treated as having “necessarily found” any fact, even though

non-elemental, that a later sentencing court can “infer[ ]” that the jury

agreed on “as a practical matter.” 570 U. S., at ___ (ALITO, J., dissent-

ing) (slip op., at 15). The Court rejected that view, explaining that its

ACCA decisions had always demanded that a jury necessarily agree as

a legal matter—which meant on elements and not on means. See id., at

___, n. 3 (slip op., at 10, n. 3). The requirement, from the Court’s

earliest decisions, was that a judge could impose a 15-year sentence

based only on a legal “certainty,” not on his inference (however reason-

able in a given case) about what a prior factfinder had thought. Shep-

ard, 544 U. S., at 23; see Taylor, 495 U. S., at 602; supra, at 10. Or

otherwise said, the relevant question was whether a defendant was

legally convicted of a certain offense (with a certain set of elements),

not whether a sentencing judge believes that the factfinder would have

Cite as: 579 U. S. ____ (2016) 15

Opinion of the Court

Descamps made clear that when the Court had earlier said

(and said and said) “elements,” it meant just that and

nothing else.

For that reason, this Court (including JUSTICE BREYER)

recently made clear that a court may not look behind the

elements of a generally drafted statute to identify the

means by which a defendant committed a crime. See

Descamps, 570 U. S., at ___ (slip op., at 2). Consider if

Iowa defined burglary as involving merely an unlawful

entry into a “premises”—without any further elaboration

of the types of premises that exist in the world (e.g., a

house, a building, a car, a boat). Then, all agree, ACCA’s

elements-focus would apply. No matter that the record of

a prior conviction clearly indicated that the defendant

burgled a house at 122 Maple Road—and that the jury

found as much; because Iowa’s (hypothetical) law included

an element broader than that of the generic offense, the

defendant could not receive an ACCA sentence. Were that

not so, this Court stated, “the categorical approach [would

be] at an end”; the court would merely be asking “whether

a particular set of facts leading to a conviction conforms to

a generic ACCA offense.” Id., at ___ (slip op., at 19). That

conclusion is common ground, and must serve as the

baseline for anything JUSTICE BREYER (or the Govern-

ment) here argues.

And contrary to his view, that baseline not only begins

but also ends the analysis, because nothing material

changes if Iowa’s law further notes (much as it does) that

a “premises” may include “a house, a building, a car, or a

boat.” That fortuity of legislative drafting affects neither

the oddities of applying the categorical approach nor the

——————

convicted him of that offense had it been on the books. See Carachuri-

Rosendo v. Holder, 560 U. S. 563, 576 (2010) (rejecting such a “hypo-

thetical” approach given a similar statute’s directive to “look to the

conviction itself”).

16 MATHIS v. UNITED STATES

Opinion of the Court

reasons for doing so. On the one hand, a categorical in-

quiry can produce the same counter-intuitive conse-

quences however a state law is written. Whether or not

the statute lists various means of satisfying the “premises”

element, the record of a prior conviction is just as likely to

make plain that the defendant burgled that house on

Maple Road and the jury knew it. On the other hand (and

as already shown), the grounds—constitutional, statutory,

and equitable—that we have offered for nonetheless using

the categorical approach lose none of their force in the

switch from a generally phrased statute (leaving means

implicit) to a more particular one (expressly enumerating

them). See supra, at 11. In every relevant sense, both

functional and legal, the two statutes—one saying just

“premises,” the other listing structures and vehicles—are

the same. And so the same rule must apply: ACCA disre-

gards the means by which the defendant committed his

crime, and looks only to that offense’s elements.

C

The first task for a sentencing court faced with an alter-

natively phrased statute is thus to determine whether its

listed items are elements or means. If they are elements,

the court should do what we have previously approved:

review the record materials to discover which of the enu-

merated alternatives played a part in the defendant’s

prior conviction, and then compare that element (along

with all others) to those of the generic crime. See ibid.

But if instead they are means, the court has no call to

decide which of the statutory alternatives was at issue in

the earlier prosecution. Given ACCA’s indifference to how

a defendant actually committed a prior offense, the court

may ask only whether the elements of the state crime and

generic offense make the requisite match.

This threshold inquiry—elements or means?—is easy in

this case, as it will be in many others. Here, a state court

decision definitively answers the question: The listed

Cite as: 579 U. S. ____ (2016) 17

Opinion of the Court

premises in Iowa’s burglary law, the State Supreme Court

held, are “alternative method[s]” of committing one of-

fense, so that a jury need not agree whether the burgled

location was a building, other structure, or vehicle. See

Duncan, 312 N. W. 2d, at 523; supra, at 6. When a ruling

of that kind exists, a sentencing judge need only follow

what it says. See Schad, 501 U. S., at 636 (plurality opin-

ion). Likewise, the statute on its face may resolve the

issue. If statutory alternatives carry different punish-

ments, then under Apprendi they must be elements. See,

e.g., Colo. Rev. Stat. §18–4–203 (2015); Vt. Stat. Ann., Tit.

13, §1201 (Cum. Supp. 2015); see also 530 U. S., at 490

(requiring a jury to agree on any circumstance increasing

a statutory penalty); supra, at 10. Conversely, if a statu-

tory list is drafted to offer “illustrative examples,” then it

includes only a crime’s means of commission. United

States v. Howard, 742 F. 3d 1334, 1348 (CA11 2014); see

United States v. Cabrera-Umanzor, 728 F. 3d 347, 353

(CA4 2013). And a statute may itself identify which

things must be charged (and so are elements) and which

need not be (and so are means). See, e.g., Cal. Penal Code

Ann. §952 (West 2008). Armed with such authoritative

sources of state law, federal sentencing courts can readily

determine the nature of an alternatively phrased list.

And if state law fails to provide clear answers, federal

judges have another place to look: the record of a prior

conviction itself. As Judge Kozinski has explained, such a

“peek at the [record] documents” is for “the sole and lim-

ited purpose of determining whether [the listed items are]

element[s] of the offense.” Rendon v. Holder, 782 F. 3d

466, 473–474 (CA9 2015) (opinion dissenting from denial

of reh’g en banc).7 (Only if the answer is yes can the court

——————

7 Descamps previously recognized just this way of discerning whether

a statutory list contains means or elements. See 570 U. S., at ___, n. 2

(slip op., at 8–9, n. 2). The Court there noted that indictments, jury

18 MATHIS v. UNITED STATES

Opinion of the Court

make further use of the materials, as previously described,

see supra, at 12–13.) Suppose, for example, that one count

of an indictment and correlative jury instructions charge a

defendant with burgling a “building, structure, or vehi-

cle”—thus reiterating all the terms of Iowa’s law. That is

as clear an indication as any that each alternative is only

a possible means of commission, not an element that the

prosecutor must prove to a jury beyond a reasonable

doubt. So too if those documents use a single umbrella

term like “premises”: Once again, the record would then

reveal what the prosecutor has to (and does not have to)

demonstrate to prevail. See Descamps, 570 U. S., at ___

(slip op., at 17). Conversely, an indictment and jury in-

structions could indicate, by referencing one alternative

term to the exclusion of all others, that the statute con-

tains a list of elements, each one of which goes toward a

separate crime. Of course, such record materials will not

in every case speak plainly, and if they do not, a sentenc-

ing judge will not be able to satisfy “Taylor’s demand for

certainty” when determining whether a defendant was

convicted of a generic offense. Shepard, 544 U. S., at 21.

But between those documents and state law, that kind of

indeterminacy should prove more the exception than the

rule.

III

Our precedents make this a straightforward case. For

more than 25 years, we have repeatedly made clear that

application of ACCA involves, and involves only, compar-

ing elements. Courts must ask whether the crime of

——————

instructions, plea colloquies and plea agreements will often “reflect the

crime’s elements” and so can reveal—in some cases better than state

law itself—whether a statutory list is of elements or means. Ibid.

Accordingly, when state law does not resolve the means-or-elements

question, courts should “resort[ ] to the [record] documents” for help in

making that determination. Ibid.

Cite as: 579 U. S. ____ (2016) 19

Opinion of the Court

conviction is the same as, or narrower than, the relevant

generic offense. They may not ask whether the defend-

ant’s conduct—his particular means of committing the

crime—falls within the generic definition. And that rule

does not change when a statute happens to list possible

alternative means of commission: Whether or not made

explicit, they remain what they ever were—just the facts,

which ACCA (so we have held, over and over) does not

care about.

Some have raised concerns about this line of decisions,

and suggested to Congress that it reconsider how ACCA is

written. See, e.g., Chambers v. United States, 555 U. S.

122, 133 (2009) (ALITO, J., concurring in judgment);

Descamps, 570 U. S., at ___ (slip op., at 2) (KENNEDY, J.,

concurring). But whether for good or for ill, the elements-

based approach remains the law. And we will not intro-

duce inconsistency and arbitrariness into our ACCA deci-

sions by here declining to follow its requirements. Every-

thing this Court has ever said about ACCA runs counter to

the Government’s position. That alone is sufficient reason

to reject it: Coherence has a claim on the law.

Because the elements of Iowa’s burglary law are broader

than those of generic burglary, Mathis’s convictions under

that law cannot give rise to an ACCA sentence. We ac-

cordingly reverse the judgment of the Court of Appeals.

It is so ordered.

Cite as: 579 U. S. ____ (2016) 1

KENNEDY, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6092

_________________

RICHARD MATHIS, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 23, 2016]

JUSTICE KENNEDY, concurring.

The Court’s opinion is required by its precedents, and so

I join it, with one reservation set forth below.

In no uncertain terms, the Court has held that the word

“burglary” in the Armed Career Criminal Act (ACCA)

“refers to the elements of the statute of conviction, not to

the facts of each defendant’s conduct.” Taylor v. United

States, 495 U. S. 575, 601 (1990). An enhancement is

proper, the Court has said, if a defendant is convicted of a

crime “having the elements” of generic burglary, “regard-

less of its exact definition or label” under state law. Id., at

599. See also Descamps v. United States, 570 U. S. ___,

___ (2013) (slip op., at 8) (“[T]he categorical approach’s

central feature [is] a focus on the elements, rather than

the facts, of a crime”). In the instant case, then, the Court

is correct to conclude that “an elements-based approach

remains the law.” Ante. at 15. And it is correct to note

further that it would “introduce inconsistency and arbi-

trariness into our ACCA decisions by here declining to

follow its requirements,” without reconsidering our prece-

dents as a whole. Ibid.

My one reservation to the Court’s opinion concerns its

reliance on Apprendi v. New Jersey, 530 U. S. 466 (2000).

Ante at 10. In my view, Apprendi was incorrect and, in

any event, does not compel the elements based approach.

That approach is required only by the Court’s statutory

2 MATHIS v. UNITED STATES

KENNEDY, J., concurring

precedents, which Congress remains free to overturn.

As both dissenting opinions point out, today’s decision is

a stark illustration of the arbitrary and inequitable results

produced by applying an elements based approach to this

sentencing scheme. It could not have been Congress’

intent for a career offender to escape his statutorily man-

dated punishment “when the record makes it clear beyond

any possible doubt that [he] committed generic burglary.”

Post, at 6 (opinion of ALITO, J.). Congress also could

not have intended vast sentencing disparities for defend-

ants convicted of identical criminal conduct in different

jurisdictions.

Congress is capable of amending the ACCA to resolve

these concerns. See, e.g., Nijhawan v. Holder, 557 U. S.

29, 38 (2009) (interpreting the language Congress used in

8 U. S. C. §1101(a)(43)(M)(i) as requiring a “circumstance-

specific” rather than categorical approach). But continued

congressional inaction in the face of a system that each

year proves more unworkable should require this Court to

revisit its precedents in an appropriate case.

Cite as: 579 U. S. ____ (2016) 1

THOMAS, J., concurring

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6092

_________________

RICHARD MATHIS, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 23, 2016]

JUSTICE THOMAS, concurring.

I join the Court’s opinion, which faithfully applies our

precedents. The Court holds that the modified categorical

approach cannot be used to determine the specific means

by which a defendant committed a crime. Ante, at 11–12.

By rightly refusing to apply the modified categorical ap-

proach, the Court avoids further extending its precedents

that limit a criminal defendant’s right to a public trial

before a jury of his peers.

In Almendarez-Torres v. United States, 523 U. S. 224,

246–247 (1998), the Court held that the existence of a

prior conviction triggering enhanced penalties for a recidi-

vist was a fact that could be found by a judge, not an

element of the crime that must be found by a jury. Two

years later, the Court held that “any fact that increases

the penalty for a crime beyond the prescribed statutory

maximum” is an element of a crime and therefore “must

be submitted to a jury, and proved beyond a reasonable

doubt.” Apprendi v. New Jersey, 530 U. S. 466, 490 (2000);

see id., at 489–490. But Apprendi recognized an exception

for the “fact of a prior conviction,” instead of overruling

Almendarez-Torres. See 530 U. S., at 490. I continue to

believe that the exception in Apprendi was wrong, and I

have urged that Almendarez-Torres be reconsidered. See

Descamps v. United States, 570 U. S. ___, ___ (2013)

(THOMAS, J., concurring in judgment) (slip op., at 2).

2 MATHIS v. UNITED STATES

THOMAS, J., concurring

Consistent with this view, I continue to believe that

depending on judge-found facts in Armed Career Criminal

Act (ACCA) cases violates the Sixth Amendment and is

irreconcilable with Apprendi. ACCA improperly “allows

the judge to ‘mak[e] a finding that raises [a defendant’s]

sentence beyond the sentence that could have lawfully

been imposed by reference to facts found by the jury or

admitted by the defendant.’ ” Descamps, supra, at ___–___

(opinion of THOMAS, J.) (slip op., at 1–2) (brackets in origi-

nal; internal quotation marks omitted). This Sixth

Amendment problem persists regardless of whether “a

court is determining whether a prior conviction was en-

tered, or attempting to discern what facts were necessary

to a prior conviction.” Id., at ___ (slip op., at 2) (citation

omitted).

Today, the Court “at least limits the situations in which

courts make factual determinations about prior convic-

tions.” Ibid. As the Court explains, the means of commit-

ting an offense are nothing more than “various factual

ways of committing some component of the offense.” Ante,

at 4. Permitting judges to determine the means of com-

mitting a prior offense would expand Almendarez-Torres.

Therefore, I join the Court’s opinion refusing to allow

judges to determine, without a jury, which alternative

means supported a defendant’s prior convictions.

Cite as: 579 U. S. ____ (2016) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6092

_________________

RICHARD MATHIS, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 23, 2016]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins,

dissenting.

The elements/means distinction that the Court draws

should not matter for sentencing purposes. I fear that the

majority’s contrary view will unnecessarily complicate

federal sentencing law, often preventing courts from

properly applying the sentencing statute that Congress

enacted. I consequently dissent.

I

The federal statute before us imposes a mandatory

minimum sentence upon a person convicted of being a

felon in possession of a firearm if that person also has

three previous convictions for (among several other things)

“burglary.” 18 U. S. C. §924(e)(2)(B)(ii). The petitioner

here has been convicted of being a felon in possession, and

he previously was convicted of three other crimes that

qualify him for the federal mandatory minimum if, but

only if, those previous convictions count as “burglary.” To

decide whether he has committed what the federal statute

calls a “burglary,” we must look to the state statute that

he violated.

The relevant state statute, an Iowa statute, says that a

person commits a crime if he (1) “enters an occupied struc-

ture,” (2) “having no right . . . to do so,” (3) with “the intent

to commit a felony.” Iowa Code §713.1 (2013). It then

2 MATHIS v. UNITED STATES

BREYER, J., dissenting

goes on to define “occupied structure” as including any (1)

“building,” (2) “structure,” (3) “land” vehicle, (4) “water”

vehicle, or (5) “air vehicle, or similar place.” §702.12. The

problem arises because, as we have previously held, see

Taylor v. United States, 495 U. S. 575, 602 (1990), if the

structure that an offender unlawfully entered (with intent

to commit a felony) was a “building,” the state crime that

he committed counts under the federal statute as “bur-

glary.” But if the structure that the offender unlawfully

entered was a land, water, or air vehicle, the state crime

does not count as a “burglary.” Thus, a conviction for

violating the state statute may, or may not, count as a

“burglary,” depending upon whether the structure that he

entered was, say, a “building” or a “water vehicle.”

Here, if we look at the court documents charging Mathis

with a violation of the state statute, they tell us that he

was charged with entering, for example, a “house and

garage.” App. 60–73 (charging documents). They say

nothing about any other structure, say, a “water vehicle.”

Thus, to convict him, the jury—which had to find that he

unlawfully entered an “occupied structure”—must have

found that he entered a “house and garage,” which conced-

edly count as “building[s].” So why is that not the end of

this matter? Why does the federal statute not apply?

Just to be sure, let us look at how we previously treated

an almost identical instance. In Taylor, a state statute

made criminal the “breaking and entering [of] a building,

booth, tent, boat, or railroad car.” 495 U. S., at 579, n. 1.

We explained that breaking into a building would amount

to “burglary” under the federal statute, but breaking into

a railroad car would not. But the conviction document

itself said only that the offender had violated the statute;

it did not say whether he broke into a building or a rail-

road car. See id., at 598–602. We said that in such a case

the federal sentencing judge could look at the charging

papers and the jury instructions in the state case to try to

Cite as: 579 U. S. ____ (2016) 3

BREYER, J., dissenting

determine what the state conviction was actually for:

building, tent, or railroad car. We wrote that

“in 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 de-

fendant was charged only with a burglary of a build-

ing, 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 enhancement.”

Id., at 602.

(We later added that where a conviction rests upon an

offender’s guilty plea, the federal judge can look to the

facts that the offender admitted at his plea colloquy for the

same purpose. See Shepard v. United States, 544 U. S. 13,

20–21 (2005).)

So, again, what is the problem? The State’s “burglary

statut[e] include[s] entry” of a vehicle as well as a “build-

ing.” Taylor, 495 U. S., at 602. The conviction document

might not specify what kind of a structure the defendant

entered (i.e., whether a building or an automobile). But

the federal sentencing judge can look at the charging

documents (or plea colloquy) to see whether “the defend-

ant was charged only with a burglary of a building.” Ibid.

And here that was so. In addition, since the charging

documents show that the defendant was charged only with

illegal entry of a “building”—not a tent or a railroad car—

the jury, in order to find (as it did) that the defendant

broke into an occupied structure, would “necessarily

[have] had to find an entry of a building.” Ibid. Hence,

“the Government should be allowed to use the conviction

for enhancement.” Ibid.

The majority, however, does not agree that the two

cases I have described are almost identical. To the con-

trary, it notes correctly that our precedent often uses the

word “element” to describe the relevant facts to which a

4 MATHIS v. UNITED STATES

BREYER, J., dissenting

statute refers when it uses words such as “building,”

“tent,” “boat,” or “railroad car.” See, e.g., ante, at 8–9. It

points out that, here, the Iowa Supreme Court described

those words as referring, not to “elements” of a crime, but

rather to “means” through which a crime was committed.

See ante, at 5–6. And that fact, in the majority’s view,

makes all the difference. See ante, at 13–16. But why? I,

of course, see that there is a distinction between means

and elements in the abstract, but—for sentencing pur-

poses—I believe that it is a distinction without a difference.

II

I begin with a point about terminology. All the relevant

words in this case, such as “building,” “structure,” “water

vehicle,” and the like, are statutory words. Moreover, the

statute uses those words to help describe a crime. Fur-

ther, the statute always uses those words to designate

facts. Whether the offender broke into a building is a fact;

whether he broke into a water vehicle is a fact. Some-

times, however, a State may treat certain of those facts as

elements of a crime. And sometimes a State may treat

certain of those facts as means of committing a crime. So

far, everyone should agree. See Richardson v. United

States, 526 U. S. 813, 817 (1999) (describing both “ele-

ments” and “means” as “facts”). Where we disagree is

whether that difference, relevant to the application of

state law, should make a difference for federal sentencing

purposes.

III

Whether a State considers the statutory words “boat” or

“building” to describe elements of a crime or a means of

committing a crime can make a difference for purposes of

applying the State’s criminal law, but it should not make a

difference in respect to the sentencing question at issue

here. The majority, I believe, reasons something like this:

Cite as: 579 U. S. ____ (2016) 5

BREYER, J., dissenting

Suppose the jury unanimously agreed that the defendant

unlawfully entered some kind of structure with felonious

intent, but the jury is deadlocked six to six as to whether

that structure is (1) a “boat” or (2) a “house.” If the statute

uses those two words to describe two different elements of

two different crimes—i.e., (1) breaking into a boat, and (2)

breaking into a house—then the defendant wins, for the

jury has not found unanimously each element of either

crime. But if the statute uses those two words to describe

two different means of committing the same crime—i.e.,

breaking into an occupied structure that consists of either

a house or a boat—then the defendant loses, for (as long as

the jury decides unanimously that the defendant broke

into an occupied structure of whichever kind) the jury

need not decide unanimously which particular means the

defendant used to commit the crime. See ante, at 2–5.

I accept that reasoning. But I do not see what it has to

do with sentencing. In the majority’s view, the label

“means” opens up the possibility of a six-to-six jury split,

and it believes that fact would prevent us from knowing

whether the conviction was for breaking into a “building”

or a “boat.” See ante, at 4–5. But precisely the same is

true were we to use the label “element” to describe the

facts set forth in the state statute. The federal sentencing

judge may see on the defendant’s record a conviction for

violating a particular provision of the state criminal code;

that code may list in a single sentence both “buildings”

and “boats”; the State may interpret the two words as

separate elements of two separate crimes; and the federal

judge will not know from the simple fact of conviction for

violating the statute (without more) which of the two

crimes was at issue (that is, was it the one aimed at bur-

glaries of buildings, or the one aimed at burglaries of

boats?). That is why the Court said in Taylor that in such

a case the federal judge may look to the “indictment or

information and jury instructions” to determine whether

6 MATHIS v. UNITED STATES

BREYER, J., dissenting

“the jury necessarily had to find an entry of a building,”

rather than a boat, “to convict.” 495 U. S., at 602. If so,

the federal judge may count the conviction as falling

within the federal statutory word “burglary” and use it for

sentencing.

In my view, precisely the same is true if the state courts

label the statute-mentioned facts (“building,” “boat,” etc.)

as “means” rather than “elements.” The federal judge

should be able to “look . . . to” the charging documents and

the plea agreement to see if “the jury necessarily had to

find an entry of a building,” rather than a boat, “to con-

vict.” Ibid. If so, the federal judge should be able to count

the conviction as a federal-statute “burglary” conviction

and use it for sentencing.

Of course, sometimes the charging documents will not

give us the answer to the question. But often they will. If,

for example, the charging document accuses Smith of

breaking and entering into a house (and does not mention

any other structure), then (1) the jury had to find unani-

mously that he broke into a “house,” if “house” is an ele-

ment, and (2) the jury had to find unanimously that he

broke into a “house,” if “house” is the only means charged.

(Otherwise the jury would not have unanimously found

that he broke into an “occupied structure,” which is an

element of the statutory crime.)

Suppose, for example, that breaking into a “building” is

an element of Iowa’s burglary crime; and suppose the

State charges that Smith broke into a building located in

Des Moines (and presents evidence at trial concerning

only a Des Moines offense), but the jury returns its verdict

on a special-verdict form showing that six jurors voted for

guilt on the theory that he broke into a building located in

Detroit—not Des Moines. The conviction would fail (at

least in Iowa), would it not? See, e.g., State v. Bratthauer,

354 N. W. 2d 774, 776 (Iowa 1984) (“If substantial evidence

is presented to support each alternative method of commit-

Cite as: 579 U. S. ____ (2016) 7

BREYER, J., dissenting

ting a single crime, and the alternatives are not repugnant

to each other, then unanimity of the jury as to the mode of

commission of the crime is not required. At the root of this

standard is the principle that the unanimity rule requires

jurors to be in substantial agreement as to just what a

defendant did as a step preliminary to determining

whether the defendant is guilty of the crime charged”

(emphasis added; citation, brackets, and internal quota-

tion marks omitted)). Similarly, we would know that—if

the charging documents claim only that the defendant

broke into a house, and the Government presented proof

only of that kind of burglary—the jury had to find unani-

mously that he broke into a house, not a boat. And that is

so whether state law considers the statutory word “house”

to be an element or a means. I have not found any non-

fanciful example to the contrary.

IV

Consider the federal statute before us—the statute that

contains the word “burglary”—from a more general sen-

tencing perspective. By way of background, it is im-

portant to understand that, as a general matter, any

sentencing system must embody a host of compromises

between theory and practicality. From the point of view of

pure theory, there is much to be said for “real offense”

sentencing. Such a system would require a commission or

a sentencing judge to determine in some detail “the actual

conduct in which the defendant engaged,” i.e., what the

defendant really did now and in the past. United States

Sentencing Commission (USSC), Guidelines Manual ch. 1,

pt. A, p. 5 (Nov. 2015). Such a system would produce

greater certainty that two offenders who engaged in (and

had previously engaged in) the same real conduct would

be punished similarly. See ibid.

Pure “real offense” sentencing, however, is too complex

to work. It requires a sentencing judge (or a sentencing

8 MATHIS v. UNITED STATES

BREYER, J., dissenting

commission) to know all kinds of facts that are difficult to

discover as to present conduct and which a present sen-

tencing judge could not possibly know when he or she

seeks to determine what conduct underlies a prior convic-

tion. Because of these practical difficulties, the USSC

created Guidelines that in part reflect a “charge offense”

system, a system based “upon the conduct that constitutes

the elements of the offense for which the defendant was

charged and of which he was convicted.” Ibid.

A pure “charge offense” system, however, also has seri-

ous problems. It can place great authority to determine a

sentence in the hands of the prosecutor, not the judge,

creating the very nonuniformity that a commission would

hope to minimize. Hence, the actual federal sentencing

system retains “a significant number of real offense ele-

ments,” allowing adjustments based upon the facts of a

defendant’s case. Id., at 6. And the Commission is cur-

rently looking for new ways to create a better compromise.

See, e.g., USSC, Amendments to the Sentencing Guide-

lines, at 24 (Apr. 2016) (effective Nov. 1, 2016) (creating a

“sentence-imposed model for determining” whether prior

convictions count for sentence-enhancement purposes in

the context of certain immigration crimes).

With this background in mind, turn to the federal stat-

ute before us. The statute, reflecting the impossibility of

knowing in detail the conduct that underlies a prior con-

viction, uses (in certain cases involving possession of

weapons) the fact of certain convictions (including convic-

tions for burglary) as (conclusive) indications that the

present defendant has previously engaged in highly unde-

sirable conduct. And, for the general reasons earlier

described, it is practical considerations, not a general

theory, that would prevent Congress from listing the

specific prior conduct that would warrant a higher present

sentence. Practical considerations, particularly of admin-

istration, can explain why Congress did not tell the courts

Cite as: 579 U. S. ____ (2016) 9

BREYER, J., dissenting

precisely how to apply its statutory word “burglary.” And

similar practical considerations can help explain why this

Court, in Taylor and later cases, described a modified

categorical approach for separating the sheep from the

goats. Those cases recognize that sentencing judges have

limited time, they have limited information about prior

convictions, and—within practical constraints—they must

try to determine whether a prior conviction reflects the

kind of behavior that Congress intended its proxy (i.e.,

“burglary”) to cover.

The majority’s approach, I fear, is not practical. Per-

haps the statutes of a few States say whether words like

“boat” or “building” stand for an element of a crime or a

means to commit a crime. I do not know. I do know,

however, that many States have burglary statutes that

look very much like the Iowa statute before us today. See,

e.g., Colo. Rev. Stat. §§18–4–101, 18–4–202, 18–4–203

(2015); Mont. Code Ann. §§45–2–101, 45–6–201, 45–6–204

(2015); N. H. Rev. Stat. Ann. §635.1 (2015); N. D. Cent.

Code Ann. §§12.1–22–02, 12.1–22–06 (2012); Ohio Rev.

Code Ann. §§2909.01, 2911.11–2911.13 (Lexis 2014); 18

Pa. Cons. Stat. Ann. §§3501, 3502 (2015); S. D. Codified

Laws §§22–1–2, 22–32–1, 22–32–3, 22–32–8 (2006); Wyo.

Stat. Ann. §§6–1–104, 6–3–301 (2015); see also ALI, Model

Penal Code §§221.0, 221.1 (1980); cf. Taylor, 495 U. S., at

598 (“burglary” in the federal statute should reflect the

version of burglary “used in the criminal codes of most

States”). I also know that there are very few States where

one can find authoritative judicial opinions that decide the

means/element question. In fact, the Government told us

at oral argument that it had found only “two States” that,

in the context of burglary, had answered the

means/elements question. Tr. of Oral Arg. 45; see id.,

at 37.

The lack of information is not surprising. After all, a

prosecutor often will charge just one (e.g., a “building”) of

10 MATHIS v. UNITED STATES

BREYER, J., dissenting

several statutory alternatives. See Descamps v. United

States, 570 U. S. ___, ___ (2013) (slip op., at 6). A jury that

convicts, then, would normally have to agree unanimously

about the existence of that particular fact. See Richard-

son, 526 U. S., at 818 (“Our decision [whether something is

an element or a means] will make a difference where . . .

the Government introduces evidence that the defendant

has committed more underlying drug crimes than legally

necessary to make up a ‘series’ ”). Hence, it will not matter

for that particular case whether the State, as a general

matter, would categorize that fact (to which the statute

refers) as an “element” or as a “means.”

So on the majority’s approach, what is a federal sentenc-

ing judge to do when facing a state statute that refers to a

“building,” a “boat,” a “car,” etc.? The charging documents

will not answer the question, for—like the documents at

issue here—they will simply charge entry into, say, a

“building,” without more. But see ante, at 17–18 (suggest-

ing that a defendant’s charging documents will often

answer the question). The parties will have to look to

other state cases to decide whether that fact is a “means”

or an “element.” That research will take time and is likely

not to come up with an answer. What was once a simple

matter will produce a time-consuming legal tangle. See,

e.g., State v. Peterson, 168 Wash. 2d 763, 769, 230 P. 3d

588, 591 (2010) (“ ‘There is simply no bright-line rule by

which the courts can determine whether the legislature

intended to provide alternate means of committing a

particular crime. Instead, each case must be evaluated on

its own merits’ ” (brackets omitted)); State v. Brown, 295

Kan. 181, 192, 284 P. 3d 977, 987 (2012) (the “alternative

means” definition is “mind-bending in its application”).

That is why lower court judges have criticized the ap-

proach the majority now adopts. See, e.g., Omargharib v.

Holder, 775 F. 3d 192, 200 (CA4 2014) (Niemeyer, J.,

concurring) (“Because of the ever-morphing analysis and

Cite as: 579 U. S. ____ (2016) 11

BREYER, J., dissenting

the increasingly blurred articulation of applicable stand-

ards, we are being asked to decide, without clear and

workable standards, whether disjunctive phrases in a

criminal law define alternative elements of a crime or

alternative means of committing it . . . . I find it espe-

cially difficult to comprehend the distinction” (emphasis

deleted)).

V

The majority bases its conclusion primarily upon prece-

dent. In my view, precedent does not demand the conclu-

sion that the majority reaches. I agree with the majority

that our cases on the subject have all used the word “ele-

ment” in contexts similar to the present context. But that

fact is hardly surprising, for all the cases in which that

word appears involved elements—or at least the Court

assumed that was so. See Descamps, 570 U. S., at ___,

n. 2 (slip op., at 8, n. 2). In each of those cases, the Court

used the word generally, simply to refer to the matter at

issue, without stating or suggesting any view about the

subject of the present case. See, e.g., id., at ___ (slip op., at

5) (“Sentencing courts may look only to the statutory

definitions—i.e., the elements—of a defendant’s prior

offenses” (internal quotation marks omitted)); Shepard,

544 U. S., at 16–17 (using the terms “statutory definition”

and “statutory elements” interchangeably); Taylor, 495

U. S., at 602 (“[A]n offense constitutes ‘burglary’ for pur-

poses of [the Armed Career Criminal Act] if either its

statutory definition substantially corresponds to ‘generic’

burglary, or the charging paper and jury instructions

actually required the jury to find all the elements of ge-

neric burglary”).

The genius of the common law consists in part in its

ability to modify a prior holding in light of new circum-

stances, particularly where, as Justice Holmes said, an

existing principle runs up against a different principle

12 MATHIS v. UNITED STATES

BREYER, J., dissenting

that requires such modification. See Holmes, The Path of

the Law, 10 Harv. L. Rev. 457, 469 (1897). A fortiori, we

should not apply this Court’s use of a word in a prior

case—a word that was not necessary to the decision of the

prior case, and not intended to set forth a generally appli-

cable rule—to a new circumstance that differs signifi-

cantly in respect to both circumstances and the legal

question at issue.

Does Apprendi v. New Jersey, 530 U. S 466 (2000),

require the majority’s result here? There we held that any

fact (“[o]ther than the fact of a prior conviction”) that must

be proved in order to increase the defendant’s sentence

above what would otherwise be the statutory maximum

must be proved to a jury beyond a reasonable doubt. Id.,

at 490. Where, as here, the State charges only one kind of

“occupied structure”—namely, entry into a “garage”—that

criterion is met. The State must prove to the jury beyond

a reasonable doubt that the defendant unlawfully entered

a garage. And that is so, whether the statute uses the

term “garage” to refer to a fact that is a means or a fact

that is an element. If the charging papers simply said

“occupied structure,” leaving the jury free to disagree

about whether that structure was a “garage” or was, in-

stead, a “boat,” then we lack the necessary assurance

about jury unanimity; and the sentencing judge conse-

quently cannot use that conviction as a basis for an in-

creased federal sentence. And that is true whether the

state statute, when using the words “garage” and “boat,”

intends them to refer to a fact that is a means or a fact

that is an element.

What about Descamps? The statute there at issue made

it a crime to “ente[r] certain locations with intent to com-

mit grand or petit larceny or any felony.” 570 U. S., at ___

(slip op., at 3) (internal quotation marks omitted). The

statute made no distinction between (1) lawful entry (e.g.,

entering a department store before closing time) and (2)

Cite as: 579 U. S. ____ (2016) 13

BREYER, J., dissenting

unlawful entry (e.g., breaking into a store after it has

closed). See ibid. The difference matters because unlaw-

ful entry is a critical constituent of the federal statute’s

version of “burglary.” If the entry is lawful, the crime does

not fall within the scope of that word.

We held that a conviction under this statute did not

count as a “burglary” for federal purposes. We reasoned

that the statute required the Government only to prove

“entry,” that there was no reason to believe that charging

documents would say whether the entry was lawful or

unlawful, and that, “most important[ly],” even if they did,

the jury did not have to decide that the entry was unlaw-

ful in order to convict (that is, any description in the

charging document that would imply or state that the

entry was illegal, say, at 2:00 in the morning, would be

coincidental). Id., at ___ (slip op., at 18); see id., at ___

(slip op., at 14).

Here, by way of contrast, the charging documents must

allege entry into an “occupied structure,” and that “struc-

ture” can consist of one of several statutory alternatives.

Iowa Code §§713.1, 702.12. The present law thus bears

little resemblance to the hypothetical statute the majority

describes. That hypothetical statute makes it a crime to

break into a “premises” without saying more. Ante, at 15–

16. Thus, to apply the federal sentencing statute to such a

nonspecific, hypothetical statute would require sentencing

judges to “imaginatively transfor[m]” “every element of

[the] statute . . . so that [the] crime is seen as containing

an infinite number of sub-crimes corresponding to ‘all the

possible ways an individual can commit’ ” the crime—an

impossibly difficult task. Descamps, 570 U. S., at ___–___

(slip op., at 18–19).

But the Iowa statute before us contains explicit (not

hypothetical) statutory alternatives, and therefore it is

likely (not unlikely) that the charging documents will list

one or more of these alternatives. Indeed, that is the case

14 MATHIS v. UNITED STATES

BREYER, J., dissenting

with each of Mathis’ charging documents. See App. 60–73.

And if the charging documents list only one of these alter-

natives, say, a “building,” the jury normally would have to

find unanimously that the defendant entered into a build-

ing in order to convict. See Bratthauer, 354 N. W. 2d, at

776. To repeat my central point: In my view, it is well

within our precedent to count a state burglary conviction

as a “burglary” within the meaning of the federal law

where (1) the statute at issue lists the alternative means

by which a defendant can commit the crime (e.g., burgling

a “building” or a “boat”) and (2) the charging documents

make clear that the state alleged (and the jury or trial

judge necessarily found) only an alternative that matches

the federal version of the crime.

Descamps was not that kind of case. It concerned a

statute that did not explicitly list alternative means for

commission of the crime. And it concerned a fact extrane-

ous to the crime—the fact (whether entry into the burgled

structure was lawful or unlawful) was neither a statutory

means nor an element. As the Court in that case de-

scribed it, the fact at issue was, under the state statute, a

“legally extraneous circumstanc[e]” of the State’s case.

570 U. S., at ___ (slip op., at 14). But this case concerns a

fact necessary to the crime (regardless of whether the

Iowa Supreme Court generally considers that fact to be a

means or an element).

Precedent, by the way, also includes Taylor. And, as I

have pointed out, Taylor says that the modified categorical

approach it sets forth 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.” 495 U. S., at 602. Taylor is

the precedent that I believe governs here. Because the

majority takes a different view, with respect, I dissent.

Cite as: 579 U. S. ____ (2016) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 15–6092

_________________

RICHARD MATHIS, PETITIONER v. UNITED STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE EIGHTH CIRCUIT

[June 23, 2016]

JUSTICE ALITO, dissenting.

Sabine Moreau lives in Solre-sur-Sambre, a town in

Belgium located 38 miles south of Brussels. One day she

set out in her car to pick up a friend at the Brussels train

station, a trip that should have taken under an hour. She

programmed her GPS and headed off. Although the GPS

sent her south, not north, she apparently thought nothing

of it. She dutifully stayed on the prescribed course. Nor

was she deterred when she saw road signs in German for

Cologne, Aachen, and Frankfurt. “I asked myself no ques-

tions,” she later recounted. “I kept my foot down.”1

Hours passed. After crossing through Germany, she

entered Austria. Twice she stopped to refuel her car. She

was involved in a minor traffic accident. When she tired,

——————

1 For accounts of the journey, see, e.g., Waterfield, GPS Failure

Leaves Belgian Woman in Zagreb Two Days Later, The Telegraph (Jan.

13, 2013), online at http://www.telegraph.co.uk/news/worldnews/europe/

belgium/9798779/GPS-failure-leaves-Belgian-woman-in-Zagreb-two-days-

later.html (all Internet materials as last visited June 22, 2016); Greno-

ble, Sabine Moreau, Belgian Woman, Drives 900 Miles Off 90-Mile

Route Because of GPS Error, Huffington Post (Jan. 15, 2013), online at

http:// www.huffingtonpost.com/2013/01/15/sabine-moreau-gps-belgium-

croatia-900-miles_n_2475220.html; Malm, Belgian Woman Blindly

Drove 900 Miles Across Europe As She Followed Broken GPS Instead

Of 38-Miles To The Station, Daily Mail, (Jan. 14, 2013), online at http://

www. dailymail.co.uk/news/article-2262149 / Belgian-woman-67-picking-

friend-railway-station-ends-Zagreb-900-miles-away-satnav-disaster.html.

2 MATHIS v. UNITED STATES

ALITO, J., dissenting

she pulled over and slept in her car. She crossed the Alps,

drove through Slovenia, entered Croatia, and finally ar-

rived in Zagreb—two days and 900 miles after leaving her

home. Either she had not properly set her GPS or the

device had malfunctioned. But Ms. Moreau apparently

refused to entertain that thought until she arrived in the

Croatian capital. Only then, she told reporters, did she

realize that she had gone off course, and she called home,

where the police were investigating her disappearance.

Twenty-six years ago, in Taylor v. United States, 495

U. S. 575, 602 (1990), this Court set out on a journey like

Ms. Moreau’s. Our task in Taylor, like Ms. Moreau’s short

trip to the train station, might not seem very difficult—

determining when a conviction for burglary counts as a

prior conviction for burglary under the Armed Career

Criminal Act (ACCA), 18 U. S. C. §924(e). But things have

not worked out that way.

Congress enacted ACCA to ensure that violent repeat

criminal offenders could be subject to enhanced penal-

ties—that is, longer prison sentences—in a fair and uni-

form way across States with myriad criminal laws. See

Descamps v. United States, 570 U. S. ___, ___–___ (2013)

(ALITO, J., dissenting) (slip op., at 13–14). ACCA calls for

an enhanced sentence when a defendant, who has three or

more prior convictions for a “violent felony,” is found guilty

of possession of a firearm. §924(e)(1). And ACCA provides

that the term “violent felony” means, among other things,

“any crime punishable by imprisonment for a term exceed-

ing one year . . . that . . . is burglary.” §924(e)(2)(B). In

other words, “burglary” = “violent felony.”

While this language might seem straightforward, Taylor

introduced two complications. First, Taylor held that

“burglary” under ACCA means offenses that have the

elements of what the Court called “generic” burglary,

defined as unlawfully entering or remaining in a building

or structure with the intent to commit a crime. 495 U. S.,

Cite as: 579 U. S. ____ (2016) 3

ALITO, J., dissenting

at 598. This definition is broader than that of the common

law but does not include every offense that States have

labeled burglary, such as the burglary of a boat or vehicle.

Second, Taylor and subsequent cases have limited the

ability of sentencing judges to examine the record in prior

cases for the purpose of determining whether the convic-

tions in those cases were for “generic burglary.” See, e.g.,

Shepard v. United States, 544 U. S. 13, 26 (2005). We

have called this the “modified categorical approach.”

Descamps, supra, at ___–___ (slip op., at 1–2).

Programmed in this way, the Court set out on a course

that has increasingly led to results that Congress could

not have intended.2 And finally, the Court arrives at

today’s decision, the upshot of which is that all burglary

convictions in a great many States may be disqualified

from counting as predicate offenses under ACCA. This

conclusion should set off a warning bell. Congress indis-

putably wanted burglary to count under ACCA; our course

has led us to the conclusion that, in many States, no bur-

glary conviction will count; maybe we made a wrong turn

at some point (or perhaps the Court is guided by a mal-

functioning navigator). But the Court is unperturbed by

its anomalous result. Serenely chanting its mantra, “Ele-

ments,” see ante, at 8, the Court keeps its foot down and

drives on.

The Court’s approach calls for sentencing judges to

delve into pointless abstract questions. In Descamps, the

——————

2 In Descamps v. United States, 570 U. S. ___ (2013), the decision

meant that no California burglary conviction counts under ACCA. See

id., at ___ (ALITO, J., dissenting) (slip op., at 14). In Moncrieffe v.

Holder, 569 U. S. ___ (2013), where the Court took a similar approach

in interpreting a provision of the immigration laws, the Court came to

the conclusion that convictions in about half the states for even very

large scale marijuana trafficking do not count as “illicit trafficking in a

controlled substance” under a provision of the immigration laws. Id., at

___ (ALITO, J., dissenting) (slip op., at 9).

4 MATHIS v. UNITED STATES

ALITO, J., dissenting

Court gave sentencing judges the assignment of determin-

ing whether a state statute is “divisible.” See 570 U. S., at

___ (slip op., at 23). When I warned that this novel in-

quiry would prove to be difficult, the opinion of the Court

brushed off that concern, see id., at ___ (slip op., at 8–9,

n. 2) (“[W]e can see no real-world reason to worry”). But

lower court judges, who must regularly grapple with the

modified categorical approach, struggled to understand

Descamps. Compare Rendon v. Holder, 764 F. 3d 1077,

1084–1090 (CA9 2014) (panel opinion), with 782 F. 3d 466,

466–473 (CA9 2015) (eight judges dissenting from denial

of reh’g en banc), and id., at 473–474 (Kozinski, J., dis-

senting from denial of reh’g en banc). Now the Court tells

them they must decide whether entering or remaining in a

building is an “element” of committing a crime or merely a

“means” of doing so. I wish them good luck.

The distinction between an “element” and a “means” is

important in a very different context: The requisite num-

ber of jurors (all 12 in most jurisdictions) must agree that

a defendant committed each element of an offense, but the

jurors need not agree on the means by which an element

was committed. So if entering or remaining in a building

is an element, the jurors must agree that the defendant

entered or remained in a building and not, say, a boat.

But if the element is entering or remaining within one of a

list of places specified in the statute (say, building, boat,

vehicle, tent), then entering or remaining in a building is

simply a means. Jurors do not need to agree on the means

by which an offense is committed, and therefore whether a

defendant illegally entered a building or a boat would not

matter for purposes of obtaining a conviction.

In the real world, there are not many cases in which the

state courts are required to decide whether jurors in a

burglary case must agree on the building vs. boat issue, so

the question whether buildings and boats are elements or

means does not often arise. As a result, state-court cases

Cite as: 579 U. S. ____ (2016) 5

ALITO, J., dissenting

on the question are rare. The Government has surveyed

all the state burglary statutes and has found only one—

Iowa, the State in which petitioner was convicted for

burglary—in which the status of the places covered as

elements or means is revealed. See Brief for United

States 43, and n. 13. Petitioner’s attorneys have not cited

a similar decision from any other State.

How, then, are federal judges sentencing under ACCA to

make the element/means determination? The Court

writes: “This threshold inquiry—elements or means?—is

easy in this case, as it will be in many others.” Ante, at 17.

Really?3 The determination is easy in this case only be-

cause the fortified legal team that took over petitioner’s

representation after this Court granted review found an

Iowa case on point, but this discovery does not seem to

have been made until the preparation of the brief filed in

this Court. Brief for United States 43, and n. 13. “Peti-

tioner’s belated identification of a relevant state decision

confirms that the task is not an easy one.” Ibid. And that

is not the worst of it. Although many States have bur-

glary statutes like Iowa’s that apply to the burglary of

places other than a building, neither the Government nor

petitioner has found a single case in any of these jurisdic-

tions resolving the question whether the place burglarized

is an element or a means.

The Court assures the federal district judges who must

apply ACCA that they do not need such state-court deci-

sions, that it will be easy for federal judges to predict how

state courts would resolve this question if it was ever

presented to them. Ante, at 16–18. But the Court has not

shown how this can be done. The Government’s brief cites

——————

3 In Rendon v. Holder, 782 F. 3d 466, 466–473 (CA9 2014) (dissent

from denial of rehearing), eight circuit judges addressed the question of

the difficulty of this determination. They described it as “a notoriously

uncertain inquiry” that will lead to “uncertain results.” Id., at 471.

6 MATHIS v. UNITED STATES

ALITO, J., dissenting

numerous state statutes like Iowa’s. Brief for United

States 42, n. 12. If this task is so easy, let the Court pick a

few of those States and give the lower court judges a

demonstration.

Picking up an argument tossed off by Judge Kozinski,

the Court argues that a federal sentencing judge can get a

sense of whether the places covered by a state burglary

statute are separate elements or means by examining the

charging document. Ante, at 17–18 (citing Rendon, supra,

at 473–474 (Kozinski, J., dissenting from denial of reh’g en

banc)). If, for example, the charging document alleges

that the defendant burglarized a house, that is a clue,

according to the Court, that “house” is an element. See

ibid. I pointed out the problem with this argument in

Descamps. See 570 U. S., at ___–___ (dissenting opinion)

(slip op., at 13–14). State rules and practices regarding

the wording of charging documents differ, and just be-

cause something is specifically alleged in such a document,

it does not follow that this item is an element and not just

a means. See ibid.

The present case illustrates my point. Petitioner has

five prior burglary convictions in Iowa. In Iowa, the places

covered are “means.” See ante, at 13. Yet the charging

documents in all these cases set out the specific places

that petitioner burglarized—a “house and garage,” a “gar-

age,” a “machine shed,” and a “storage shed.” See Brief for

Petitioner 9.

A real-world approach would avoid the mess that today’s

decision will produce. Allow a sentencing court to take a

look at the record in the earlier case to see if the place that

was burglarized was a building or something else. If the

record is lost or inconclusive, the court could refuse to

count the conviction. But where it is perfectly clear that a

building was burglarized, count the conviction.

The majority disdains such practicality, and as a result

it refuses to allow a burglary conviction to be counted even

Cite as: 579 U. S. ____ (2016) 7

ALITO, J., dissenting

when the record makes it clear beyond any possible doubt

that the defendant committed generic burglary. Consider

this hypothetical case. Suppose that a defendant wishes

to plead guilty to burglary, and the following occurs in

open court on the record at the time of the plea:

PROSECUTOR: I am informed that the defendant

wishes to plead guilty to the charge set out in the

complaint, namely, “on June 27, 2016, he broke into a

house at 10 Main Street with the intent to commit

larceny.”

DEFENSE COUNSEL: That is correct.

COURT: Mr. Defendant, what did you do?

DEFENDANT: I broke into a house to steal money

and jewelry.

COURT: Was that the house at 10 Main St.?

DEFENDANT: That’s it.

COURT: Now, are you sure about that? I mean, are

you sure that 10 Main St. is a house? Could it have

actually been a boat?

DEFENDANT: No, it was a house. I climbed in

through a window on the second floor.

COURT: Well, there are yachts that have multiple

decks. Are you sure it is not a yacht?

DEFENDANT: It’s a little house.

8 MATHIS v. UNITED STATES

ALITO, J., dissenting

PROSECUTOR: Your Honor, here is a photo of the

house.

COURT: Give the defendant the photo. Mr. Defend-

ant, is this the place you burglarized?

DEFENDANT: Yes, like I said.

COURT: Could it once have been a boat? Maybe it

was originally a house boat and was later attached to

the ground. What about that?

DEFENSE COUNSEL: Your honor, we stipulate that

it is not a boat.

COURT: Well, could it be a vehicle?

DEFENDANT: No, like I said, it’s a house. It doesn’t

have any wheels.

COURT: There are trailers that aren’t on wheels.

DEFENSE COUNSEL: Your Honor, my client wants

to plead guilty to burglarizing the house at 10 Main

St.

PROSECUTOR: Your Honor, if necessary I will call

the owners, Mr. and Mrs. Landlubbers-Stationary.

They have lived there for 40 years. They will testify

that it is a building. I also have the town’s tax rec-

ords. The house has been at that location since it was

built in 1926. It hasn’t moved.

COURT: What do you say, defense counsel? Are those

records accurate?

Cite as: 579 U. S. ____ (2016) 9

ALITO, J., dissenting

DEFENSE COUNSEL: Yes, we so stipulate. Again,

my client wishes to plead guilty to the burglary of a

house. He wants to take responsibility for what he

did, and as to sentencing, . . . .

COURT: We’ll get to that later. Mr. Defendant, what

do you say? Is 10 Main St. possibly a vehicle?

DEFENDANT: Your Honor, I admit I burglarized a

house. It was not a car or truck.

COURT: Well, alright. But could it possibly be a tent?

DEFENDANT: No, it’s made of brick. I scraped my

knee on the brick climbing up.

COURT: OK, I just want to be sure.

As the Court sees things, none of this would be enough.

Real-world facts are irrelevant. For aficionados of point-

less formalism, today’s decision is a wonder, the veritable

ne plus ultra of the genre.4

Along the way from Taylor to the present case, there

have been signs that the Court was off course and oppor-

tunities to alter its course. Now the Court has reached the

legal equivalent of Ms. Moreau’s Zagreb. But the Court,

unlike Ms. Moreau, is determined to stay the course and

continue on, traveling even further away from the in-

tended destination. Who knows when, if ever, the Court

will call home.

——————

4 The Court claims that there are three good reasons for its holding,

but as I explained in Descamps, none is substantial. The Court’s

holding is not required by ACCA’s text or by the Sixth Amendment, and

the alternative real-world approach would be fair to defendants. See

570 U. S., at ___, ___–___ (ALITO, J., dissenting) (slip op., at 4, 9–11).