Petition for Writ of Certiorari — Andrew Michael Penny, Petitioner v. United States
Supreme Court briefMar 7, 2022
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No.
In the
Supreme Court of the United States
___________
ANDREW MICHAEL PENNY,
PETITIONER,
V.
UNITED STATES OF AMERICA,
RESPONDENT,
___________
On Petition for a Writ of Certiorari
to the United States Court of Appeals
for the Fifth Circuit
___________
PETITION FOR A WRIT OF CERTIORARI
___________
J. MATTHEW WRIGHT
* COUNSEL OF RECORD
FEDERAL PUBLIC DEFENDER’S OFFICE
NORTHERN DISTRICT OF TEXAS
500 SOUTH TAYLOR STREET, SUITE 110
AMARILLO, TEXAS 79101
(806) 324-2370
MATTHEW_WRIGHT@FD.ORG
QUESTIONS PRESENTED
To decide whether a prior burglary conviction qualifies as a
predicate violent felony under the Armed Career Criminal Act, 18
U.S.C. § 924(e), “courts compare the elements of the crime of
conviction with the elements of the ‘generic’ version of the listed
offense—i.e., the offense as commonly understood.” Mathis v.
United States, 136 S. Ct. 2243, 2247 (2016). “[T]he 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.” Id. This
categorical approach” “demand[s] . . . certainty when identifying
a generic offense.” United States v. Shepard, 544 U.S. 13, 21
(2005).
1. When applying the categorical approach, federal courts are
“bound by” a state supreme court’s “interpretation of state law,
including its determination of the elements” of the prior crime.
Johnson v. United States, 559 U.S. 133, 138 (2010); accord James
v. United States, 550 U.S. 192, 205–206 (2007). Does “Taylor’s
demand for certainty” apply to federal courts’ application and
interpretation of state-court decisional law?
2. Where a state statute explicitly defines “burglary” in a way
that does not require proof of an intent to commit a crime, and
thus lacks an element necessary to satisfy Taylor’s generic definition of “burglary,” 18 U.S.C. § 924(e)(2)(B)(ii), is that facial
overbreadth enough to demonstrate that the crime is non-generic,
or must a federal defendant also prove that the state has
convicted someone who did not, in fact, harbor specific intent?
3. The existence of three or more prior convictions for “violent
felonies” dramatically aggravates the punishment for violation of
§ 922(g)(1). Are those facts therefore elements of an aggravated
offense that much be charged in the indictment and either proven
to a trial jury beyond a reasonable doubt or admitted by the
defendant?
i
PARTIES TO THE PROCEEDING
The parties to the proceeding are named in the caption.
DIRECTLY RELATED PROCEEDINGS
1.
United States v. Andrew Michael Penny, No. 5:01-CR-74 (N.D. Tex.)
2.
United States v. Andrew Michael Penny, No. 20-10759 (5th Cir.)
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ........................................................................................... i
PARTIES TO THE PROCEEDING .............................................................................. ii
DIRECTLY RELATED PROCEEDINGS ..................................................................... ii
TABLE OF AUTHORITIES .......................................................................................... v
PETITION FOR A WRIT OF CERTIORARI ................................................................ 1
OPINIONS BELOW ...................................................................................................... 1
JURISDICTION............................................................................................................. 1
STATUTORY PROVISIONS INVOLVED .................................................................... 1
STATEMENT ................................................................................................................. 3
REASONS TO GRANT THE PETITION...................................................................... 4
I. The Court should grant the petition because the circuit courts have reached
irreconcilable results regarding identical burglary statutes. ................................. 4
II. The divergent outcomes arise from broader disagreements about how to
apply the categorical approach. ............................................................................... 7
A. The circuits are divided over how to apply this Court’s decision in
Gonzales v. Duenas-Alvarez. ............................................................................... 7
B. As an alternative rationale for holding that Texas burglary is
categorically generic, the Fifth Circuit has embraced a strained
construction of Texas law that does not satisfy Taylor’s demand for
certainty. ........................................................................................................... 16
III.It is time for the Court to overrule its dubious decision in AlmendarezTorres . .................................................................................................................... 21
CONCLUSION............................................................................................................. 25
iii
PETITION APPENDIX
Fifth Circuit Opinion ................................................................................................. 1a
District Court Order Allowing Withdrawal of Plea.................................................. 5a
iv
TABLE OF AUTHORITIES
Cases
Alacan v. State,
03-14-00410-CR, 2016 WL 286215 (Tex. App.—Austin Jan. 21,
2016, no pet.) .......................................................................................................... 19
Alleyne v. United States,
570 U.S. 99 (2013) .................................................................................................. 22
Almendarez-Torres v. United States,
523 U.S. 224 (1998) .............................................................................. 21, 22, 23, 24
Apprendi v. New Jersey,
530 U.S. 466 (2000) (Thomas, J., concurring) ....................................................... 21
Ayala-Segoviano v. United States,
No. 10-5296 (U.S. pet. denied Feb. 22, 2011) ........................................................ 23
Battles v. State,
13-12-00273-CR, 2013 WL 5520060 (Tex. App. Oct. 3, 2013) ......................... 18, 19
Betansos v. Barr,
928 F.3d 1133 (9th Cir. 2019) ................................................................................ 14
Brooks v. State,
08-15-00208-CR, 2017 WL 6350260 (Tex. App.—El Paso Dec. 13,
2017, pet. ref’d) ....................................................................................................... 19
Chavez v. State,
08-04-00319-CR, 2006 WL 2516464 (Tex. App.—El Paso Aug. 31,
2006, no pet.) .......................................................................................................... 20
Chazen v. Marske,
938 F.3d 851 (7th Cir. 2019) .............................................................................. 4, 19
Crawford v. State,
05-13-01494-CR, 2015 WL 1243408 (Tex. App.—Dallas Mar. 16,
2015, no pet.) .......................................................................................................... 19
Daniel v. State,
07-17-00216-CR, 2018 WL 6581507 (Tex. App.—Amarillo Dec. 13,
2018, no pet.) .......................................................................................................... 18
Descamps v. United States,
570 U.S. 254 (2013) ................................................................................................ 22
v
DeVaughn v. State,
749 S.W.2d 62 (Tex. Crim. App. 1988)............................................................... 5, 16
Duran v. State,
492 S.W.3d 741 (Tex. Crim. App. 2016)................................................................. 18
Elk Grove Unified Sch. Dist. v. Newdow,
542 U.S. 1 (2004) .................................................................................................... 20
Flores v. State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet.
ref’d) ....................................................................................................................... 16
Gomez-Perez v. Lynch,
829 F.3d 323 (5th Cir. 2016) .................................................................................. 15
Gonzales v. Duenas-Alvarez,
549 U.S. 183 (2007) .................................................................................. 8, 9, 10, 13
Guzman v. State,
2-05-096-CR, 2006 WL 743431 (Tex. App.—Fort Worth Mar. 23,
2006, no pet.) .......................................................................................................... 19
Hylton v. Sessions,
897 F.3d 57 (2d Cir. 2018) .......................................................................... 11, 13, 15
Johnson v. State,
14-10-00931-CR, 2011 WL 2791251 (Tex. App.—Houston [14th
Dist.] July 14, 2011, no pet.) .................................................................................. 19
Leaks v. State,
13-03-613-CR, 2005 WL 704409 (Tex. App.—Corpus Christi Mar.
24, 2005, pet. ref’d) ................................................................................................. 20
Lomax v. State,
233 S.W.3d 302 (Tex. Crim. App. 2007)........................................................... 17, 19
Lopez-Aguilar v. Barr,
948 F.3d 1143 (9th Cir. 2020) ................................................................................ 11
Mathis v. United States,
136 S. Ct. 2242 (2016) .......................................................................... 12, 14, 21, 22
Matini v. State,
05-03-00686-CR, 2004 WL 1089197 (Tex. App.—Dallas May 17,
2004, no pet.) .......................................................................................................... 19
vi
Mowlana v. Lynch,
803 F.3d 923 (8th Cir. 2015) .................................................................................. 10
Quarles v. United States,
139 S. Ct. 1872 (2019) .............................................................................................. 6
Ramos v. Att’y Gen.,
709 F.3d 1066 (11th Cir. 2013) .............................................................................. 12
Salmoran v. Att’y Gen.,
909 F.3d 73 (3d Cir. 2018) ...................................................................................... 13
Scroggs v. State,
396 S.W.3d 1 (Tex. App.—Amarillo 2010, pet. ref’d, untimely filed) ................... 18
Sessions v. Dimaya,
138 S. Ct. 1204 (2018) ............................................................................................ 22
Shepard v. United States,
544 U.S. 13 (2005) ...................................................................................... 12, 20, 22
Singh v. Att’y Gen.,
839 F.3d 273 (3d Cir. 2016) .............................................................................. 12, 13
Swaby v. Yates,
847 F.3d 62 (1st Cir. 2017) ............................................................................... 11, 13
Taylor v. United States,
495 U.S. 575 (1990) ............................................................................................ 5, 12
Torrez v. State,
12-05-00226-CR, 2006 WL 2005525 (Tex. App.—Tyler July 19,
2006, no pet.) .......................................................................................................... 19
United States v. Castillo-Rivera,
853 F.3d 218 (5th Cir. 2017) (en banc) .............................................................. 7, 13
United States v. Fuller,
453 F.3d 274 (5th Cir. 2006) .................................................................................. 24
United States v. Grisel,
488 F.3d 844 (9th Cir. 2007) (en banc), ................................................................. 11
United States v. Herrold,
941 F.3d 173 (5th Cir. 2019) (en banc) ...................................................... 4, 7, 9, 20
United States v. Stitt, 139 S. Ct. 399 (2018) ............................................................... 11
vii
United States v. Titties,
852 F.3d 1257 (10th Cir. 2017) ........................................................................ 12, 13
United States v. Van Cannon,
890 F.3d 656 (5th Cir. 2018) ...........................................................................passim
United States v. Wallace,
964 F.3d 386 (5th Cir. 2020) ................................................................................ 5, 7
Vazquez v. United States,
No. 10-6117 (U.S. pet. denied Feb. 22, 2011) .................................................. 15, 23
Wingfield v. State,
282 S.W.3d 102 (Tex. App.—Fort Worth 2009, pet. ref’d) .................................... 18
Wooden v. United States
U.S.
(Mar. 7, 2022) ....................................................................................... 24
Statutes
8 U.S.C. § 1101(a)(43) .................................................................................................. 15
8 U.S.C. § 1101(a)(43)(G) ............................................................................................... 8
8 U.S.C. § 1227(a)(2)(A)(i) ........................................................................................... 15
18 U.S.C. § 16 ............................................................................................................... 15
18 U.S.C. § 521 ............................................................................................................. 15
18 U.S.C. § 921(a)(33)(A) ............................................................................................. 15
18 U.S.C. § 922(g)(1) ...................................................................................................... 3
18 U.S.C. § 924(c)(3) ................................................................................................... 15
Armed Career Criminal Act, 18 U.S.C. § 924(e) ....................................................... 1, 4
18 U.S.C. § 3156 ........................................................................................................... 15
18 U.S.C. § 3559(c)(2)(F) .............................................................................................. 15
21 U.S.C. § 802 ............................................................................................................. 12
28 U.S.C. § 1254(1) ........................................................................................................ 1
34 U.S.C. § 20911 ......................................................................................................... 15
viii
California Vehicle Code § 1851(a) ................................................................................. 8
Minn. Stat. Ann. § 609.582 (eff. Aug. 1, 1988).............................................................. 6
Mont. Code § 45-6-204(1)(b) & (2)(a)(ii) (eff. Oct. 1, 2009) ........................................... 6
N.C. Gen. Stat. § 14-53 .............................................................................................. 5, 6
Penal Code § 19.02(b) .................................................................................................. 17
Pub. L. 98-473, § 1803(2) (1984) .................................................................................... 5
Tenn. Code Ann. § 39-14-402(a)(3) (eff. July 1, 1995) .................................................. 6
Texas Penal Code § 19.02(b)(3) ............................................................................ 17, 18
Texas Penal Code § 22.01(a)(1) ................................................................................... 15
Texas Penal Code § 22.04 ............................................................................................ 19
Texas Penal Code § 30.02(a) .............................................................................. 2, 16, 17
Texas Penal Code § 30.02(a)(3) ............................................................................passim
Guidelines
U.S.S.G. § 4B1.2 ........................................................................................................... 15
Constitutional Provisions
U.S. Const., amend V ................................................................................................... 24
U.S. Const., amend. VI ................................................................................................ 24
Other Authorities
4 William Blackstone, Commentaries on the Laws of England 227
(1769) ........................................................................................................................ 5
ix
PETITION FOR A WRIT OF CERTIORARI
Petitioner Andrew Michael Penny asks this Court to issue a writ of certiorari
to the United States Court of Appeals for the Fifth Circuit.
OPINIONS BELOW
The Fifth Circuit’s opinion in this case was not selected for publication. It can
be found at 2021 WL 5815922 and is reprinted on pages 1a–4a of the Appendix to this
Petition. The district court issued two written opinions, only one of which is relevant
to this appeal. The first grants Mr. Penny’s motion to withdraw his first guilty plea.
That order is reprinted on pages 5a–9a of the Appendix. The second opinion denied
Mr. Penny’s pretrial motion to suppress evidence. That second opinion is not relevant
to this petition, but it can be found at 2019 WL 1505415.
JURISDICTION
This Court has jurisdiction to review the Fifth Circuit’s final decision under 28
U.S.C. § 1254(1). The Fifth Circuit issued its judgment on December 7, 2021.
STATUTORY PROVISIONS INVOLVED
This case involves the interpretation and application of the Armed Career
Criminal Act, 18 U.S.C. § 924(e):
(e)
(1) In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court referred to
in section 922(g)(1) of this title for a violent felony or a serious
drug offense, or both, committed on occasions different from one
another, such person shall be fined under this title and
imprisoned not less than fifteen years, and, notwithstanding any
other provision of law, the court shall not suspend the sentence
of, or grant a probationary sentence to, such person with respect
to the conviction under section 922(g).
1
(2) As used in this subsection—
(A) the term “serious drug offense” means—
(i) an offense under the Controlled Substances
Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and
Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46 for
which a maximum term of imprisonment of ten years or more is
prescribed by law; or
(ii) an offense under State law, involving
manufacturing, distributing, or possessing with intent to
manufacture or distribute, a controlled substance (as defined in
section 102 of the Controlled Substances Act (21 U.S.C. 802)), for
which a maximum term of imprisonment of ten years or more is
prescribed by law;
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or carrying of a
firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that—
(i) has as an element the use, attempted use, or
threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another; and
(C) the term “conviction” includes a finding that a
person has committed an act of juvenile delinquency involving a
violent felony.
This case also involves Texas Penal Code § 30.02(a), which defines “burglary” as
follows:
(a) A person commits an offense if, without the effective consent
of the owner, the person:
(1) enters a habitation, or a building (or any portion of a
building) not then open to the public, with intent to commit a
felony, theft, or an assault; or
2
(2) remains concealed, with intent to commit a felony, theft, or
an assault, in a building or habitation; or
(3) enters a building or habitation and commits or attempts to
commit a felony, theft, or an assault.
STATEMENT
After police arrested petitioner Andrew Michael Penny, they seized and
searched the car he had been driving and found two firearms. App., infra, 2a. Federal
authorities charged him with possessing a firearm after felony conviction in violation
of 18 U.S.C. § 922(g)(1). Normally, that crime carries a maximum possible penalty of
ten years in prison. § 924(a)(2). And, at least initially, Mr. Penny’s attorney believed
the default penalty would apply in this case. App., infra, 5a–6a. Mr. Penny entered
an unconditional guilty plea on September 17, 2018. App., infra, 5a.
Three months later, the U.S. Probation Office filed Mr. Penny’s Presentence
Investigation Report. That report revealed an additional prior conviction for
aggravated robbery in 1995 that the defense attorney had not considered when
advising Mr. Penny of the consequences of his plea. App., infra, 6a–7a. The prosecutor
was likewise “unaware” of the 1995 conviction when it indicted Mr. Penny and when
he originally pleaded guilty. App., infra, 7a. The district court allowed Mr. Penny to
withdraw his original plea. App., infra, 9a.
Mr. Penny then began preparing for trial. He filed a motion to suppress the
two firearms, which the district court denied without a hearing. He ultimately
entered a conditional plea, reserving the right to challenge the denial of his
suppression motion and to challenge any sentence in excess of the statutory
maximum. App., infra, 3a.
3
At sentencing, the district court applied the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1), over Mr. Penny’s objection. The Court believed that Mr. Penny had
three or more prior convictions for “violent felonies.” Mr. Penny preserved the two
arguments addressed here, acknowledging that they were foreclosed by Fifth Circuit
precedent: that his two burglary convictions were not violent felonies under the
reasoning of United States v. Van Cannon, 890 F.3d 656 (5th Cir. 2018), and that the
existence of sequence of prior convictions are elements of the offense that must be
pleaded in the indictment and proven beyond a reasonable doubt. E.g., 5th Cir. R.
329, 464, 602.
The Fifth Circuit affirmed the ACCA sentence. App., infra, 4a. The court
decided that Mr. Penny’s two burglary convictions and one aggravated assault
conviction were violent felonies. App., infra, 4a. This timely petition follows.
REASONS TO GRANT THE PETITION
I.
THE COURT SHOULD GRANT THE PETITION BECAUSE THE CIRCUIT COURTS
HAVE
REACHED
IRRECONCILABLE
RESULTS
REGARDING
IDENTICAL
BURGLARY STATUTES.
Given identical inputs—a state crime labeled “burglary” committed whenever
a trespasser commits some other crime inside a building, even where that crime does
not require proof of specific criminal intent—the Fifth and Seventh Circuits have
reached opposite conclusions. In the Seventh Circuit, the trespass-plus-crime theory
is not considered generic burglary. Van Cannon v. United States, 890 F.3d 656, 664
(7th Cir. 2018); accord Chazen v. Marske, 938 F.3d 851, 860 (7th Cir. 2019). In the
Fifth Circuit, the trespass-plus-crime offense defined in Texas Penal Code
§ 30.02(a)(3) is considered generic burglary. See United States v. Herrold, 941 F.3d
4
173, 182 (5th Cir. 2019) (en banc); accord United States v. Wallace, 964 F.3d 386, 388–
389 (5th Cir. 2020).
These two circuits do not necessarily disagree about the “generic” definition of
burglary. The element that has always distinguished burglary from mere trespass is
the intent to commit a crime inside the building. 4 William Blackstone, Commentaries
on the Laws of England 227 (1769) (“[I]t is clear, that [the] breaking and entry must
be with a felonious intent, otherwise it is only a trespass.”). When Congress originally
passed the ACCA, it included this specific-intent element within its definition of
“burglary.” Pub. L. 98-473, § 1803(2) (1984). Even after that statutory definition was
inadvertently deleted, this Court agreed that intent to commit another crime
remained an “element” of the “generic” definition of burglary. Taylor v. United States,
495 U.S. 575, 598 (1990).
Texas was the first (or possibly the second)1 jurisdiction to define a form of
“burglary” that did not require proof of specific intent to commit another felony inside
the premises. Texas’s pioneering theory “dispenses with the need to prove intent”
when the actor actually commits a predicate crime inside the building after an
unlawful entry. DeVaughn v. State, 749 S.W.2d 62, 65 (Tex. Crim. App. 1988)
In 1969, North Carolina created a form of reverse burglary, which prohibited
breaking out of a dwelling house after committing a crime therein. See 1969 N.C.
Laws, c. 543, § 2, codified at N.C. Gen. Stat. § 14-53 (“G.S. 14-53 is rewritten to read
as follows: ‘G.S. 14-53. Breaking out of dwelling house burglary. If any person
shall enter the dwelling house of another with intent to commit any felony or larceny
therein, or being in such dwelling house, shall commit any felony or larceny therein,
and shall, in either case, break out of such dwelling house in the nighttime, such
person shall be guilty of burglary.’”) (emphasis added).
1
5
(internal quotation omitted). Judge Sykes has helpfully dubbed this new theory
“trespass-plus-crime.” Van Cannon, 890 F.3d at 664. Four states have now expanded
their definition of “burglary” to include the trespass-plus-crime theory: Minnesota, see
Minn. Stat. Ann. § 609.582 (eff. Aug. 1, 1988); Montana, see Mont. Code § 45-6-204(1)(b) &
(2)(a)(ii) (eff. Oct. 1, 2009); Tennessee, see Tenn. Code Ann. § 39-14-402(a)(3) (eff. July 1,
1995); and Texas, see Tex. Penal Code § 30.02(a)(3) (eff. 1974). Three forms of Michigan
“home invasion” incorporate the trespass-plus-crime theory. See Mich. Comp. L.
§ 750.110a(2), (3), (4)(a).
In these states, prosecutors can convict a defendant for burglary by proving
that he committed a reckless, negligent, or strict liability crime while trespassing.
That aspect makes these so-called “burglary” offenses broader than generic burglary.
They lack the element of “intent” to commit another crime inside the building.
This Court explicitly reserved judgment on whether a crime that did not
require proof of specific intent could count as a “burglary” in Quarles v. United States,
139 S. Ct. 1872, 1880 n.2 (2019). After Quarles, the Fifth and Seventh Circuits have
reached opposite conclusions about trespass-plus-crime offense. The Seventh Circuit
has held that trespass-plus-crime burglaries are non-generic, because a defendant
can commit a predicate crime without ever forming the specific intent to commit that
other crime: “[N]ot all crimes are intentional; some require only recklessness or
criminal negligence.” Van Cannon, 890 F.3d at 664.
The Fifth Circuit did not disagree about that, but nonetheless held that Texas
Penal Code § 30.02(a)(3)—a statute materially identical to the Minneosta crime
6
addressed in Van Cannon—was generic. Herrold, 941 F.3d 173 (5th Cir. 2019) (en
banc). The court gave two reasons for its holding that Texas burglary was nongeneric, notwithstanding the fact that it does not require proof of specific intent to
commit some other crime inside the premises. First, in the Fifth Circuit, it is not
enough to show that statutory language plainly embraces non-generic conduct; a
defendant must also prove that the state would prosecute someone under the nongeneric theory. See United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en
banc). Second, the court decided that Texas law “rejects” the notion that an offender
could be guilty of burglary by committing a reckless, negligent, or strict liability crime
inside the premises. Herrold, 941 F.3d at 179. The court later declared this to be a
“holding” of Herrold. See Wallace, 964 F.3d at 388–389.
There is no relevant statutory difference between the Minnesota crime in Van
Cannon and the Texas crime in Herrold. Any argument that Texas courts somehow
require proof of specific intent is rebutted by examining Texas law. The two circuits
are in direct conflict, and this Court should resolve that conflict.
II. THE
DIVERGENT OUTCOMES ARISE FROM BROADER DISAGREEMENTS
ABOUT HOW TO APPLY THE CATEGORICAL APPROACH.
A. The circuits are divided over how to apply this Court’s
decision in Gonzales v. Duenas-Alvarez.
Even though the categorical approach is supposed to compare elements to
elements, the Fifth Circuit has repeatedly held that a defendant cannot rely on the
plain text of a facially overbroad statute. The defendant must provide proof that the
state has prosecuted someone on non-generic facts. This demand to provide proof that
a statute is non-generic—even where the statute is broader on its face than the
7
generic definition—reflects the most extreme interpretation of Gonzales v. DuenasAlvarez, 549 U.S. 183, 193 (2007).
Under Duenas-Alvarez, a defendant claiming that a generic-looking state
statute is actually non-generic must do more than apply “legal imagination to a state
statute’s language”; the defendant must prove that “state courts in fact did apply the
statute in the special (nongeneric) manner” before the statute will be regarded as
non-generic. Id. at 193. The circuits are divided about whether a defendant must
advance proof in every case that the statute has been applied to non-generic facts, or
whether such evidence is unnecessary when the elements of the state crime are
plainly broader on their face than the generic crime’s.
In Duenas-Alvarez, the noncitizen attempted to prove that his prior conviction
for vehicle theft under California Vehicle Code § 1851(a) was broader than the generic
definition of a “theft offense,” and therefore was not an “aggravated felony” under 8
U.S.C. § 1101(a)(43)(G). 549 U.S. at 192–193. This immigration provision is governed
by the same categorical approach as the ACCA’s “violent felony” definition. Id. at 187.
The trouble was, the text of the California statute closely resembled the “theft”
offenses in most other jurisdictions. Id. at 187, 189. California explicitly defined the
offense to include accessories and accomplices, id. at 187, and so do most states’ theft
crimes. Id. at 190. Duenas-Alvarez argued that California courts had construed
aiding and abetting in too broad a fashion—because an accessory was held
responsible for what he intended “and for what ‘naturally and probably’ result[ed]
8
from his intended crime.” 549 U.S. at 190. He argued that this judicial interpretation
transformed the otherwise generic-looking statute into a non-generic one.
This Court rejected Duenas-Alvarez’s argument, holding that California’s
conception of abettor liability did not “extend significantly beyond the concept as set
forth in the cases of other States.” Id. at 193. The Court went on to explain what
Duenas-Alvarez would need to show about California law to prove that a normallooking theft crime was actually non-generic. That would require
more than the application of legal imagination to a state statute’s
language. It requires a realistic probability, not a theoretical possibility,
that the State would apply its statute to conduct that falls outside the
generic definition of a crime. To show that realistic probability, an
offender, of course, may show that the statute was so applied in his own
case. But he must at least point to his own case or other cases in which
the state courts in fact did apply the statute in the special (nongeneric)
manner for which he argues.
Id. at 193.
The circuits are divided over whether Duenas-Alvarez’s “realistic probability”
test requires proof in every case that someone has actually been convicted on nongeneric facts.
1. In the Fifth Circuit, and sometimes in the Eighth Circuit, a defendant must
point to actual prosecutions to establish the “realistic probability,” even where the
state statute is plainly broader on its face than the relevant federal predicate
definition. See Herrold, 941 F.3d at 178–179 (quoting Castillo-Rivera, 853 F.3d at
222–224) (“It is incumbent on the defendant to point to ‘cases in which the state courts
in fact did apply the statute in the special (nongeneric) manner for which he argues.’
9
This is so ‘even where the state statute may be plausibly interpreted as broader on
its face.’”).
The Eighth Circuit has also held that the “analysis of realistic probability must
go beyond the text of the statute of conviction to inquire whether the government
actually prosecutes offenses” under the state statute where the underyling facts are
non-generic. Mowlana v. Lynch, 803 F.3d 923, 925 (8th Cir. 2015) (emphasis added).
Even though the federal crime at issue in Mowlana—unlawful use or transfer of
supplemental nutrition benefits—did not require a specific intent to deceive, the court
accepted the Attorney General’s assurance that the Government only prosecuted
defendants under that statute who in fact harbored an intent to deceive. Id. at 926–
928.
Defendants in these two circuits must point to actual prosecutions to show that
facially non-generic crimes are prosecuted on non-generic facts. Defendants in the
majority of circuits do not.
2. The vast majority of circuits—the First, Second, Third, Seventh, Ninth,
Tenth, and Eleventh—confine the Duenas-Alvarez test to the circumstances that
spawned it: where the defendant proposes a novel and non-obvious construction for
generic-looking statutory language, he must point to a specific example proving that
the state statute reaches further than its text alone would suggest.
In Van Cannon, the Seventh Circuit followed the majority approach. The court
looked only to the elements of Minnesota burglary to determine it was non-generic.
There was no need to perform a deep dive into the underlying facts of Minnesota
10
burglary prosecutions to see how far the statute reached; the text of the “Minnesota
statute” alone was enough to show that it “covers a broader swath of conduct than
generic burglary.” Van Cannon, 890 F.3d at 658. And indeed, the Seventh Circuit
resisted any effort to judicially narrow the statute beyond its plain meaning—it
explicitly rejected the Government’s argument that commission of a crime implied
the formation of intent to do so: “Taylor’s elements-based approach does not
countenance imposing an enhanced sentence based on implicit features in the crime
of conviction.” Id. The text, and the text alone, should be consulted to determine
whether the elements of the crime match the generic definition.
Most circuits agree with the Seventh. Where “a state statute explicitly defines
a crime more broadly than the generic definition,” then the crime is non-generic,
period. See United States v. Grisel, 488 F.3d 844, 850 (9th Cir. 2007) (en banc),
abrogated on other grounds by United States v. Stitt, 139 S. Ct. 399 (2018). Said
another way, the text of the statute alone can establish a “realistic probability” that
someone could be prosecuted for non-generic conduct, without resorting to “legal
imagination” or fanciful hypotheticals. See Lopez-Aguilar v. Barr, 948 F.3d 1143,
1147–1148 (9th Cir. 2020); accord Swaby v. Yates, 847 F.3d 62, 66 (1st Cir. 2017)
(Where the statutory language “clearly does apply more broadly than the federally
defined offense,” then the statute is non-generic.); Hylton v. Sessions, 897 F.3d 57, 63
(2d Cir. 2018) (There is no need to point to actual examples of prosecution “when the
statutory language itself, rather than the application of legal imagination to that
language, creates the realistic probability that a state would apply the statute to
11
conduct beyond the generic definition.”); Ramos v. Att’y Gen., 709 F.3d 1066, 1072
(11th Cir. 2013) (same); see also Singh v. Att’y Gen., 839 F.3d 273, 286 n.10 (3d Cir.
2016) (The “realistic probability” test comes into play only “the relevant elements” of
the state crime and the generic definition are “identical.”); United States v. Titties,
852 F.3d 1257, 1274 (10th Cir. 2017).
3. The minority approach is wrong and unfair. This Court’s categorical
approach cases have consistently focused on the elements of a state crime as defined
in statutory text—or what the jury was actually required to find “in order to convict
the defendant.” Taylor, 495 U.S. at 602. In conducting this analysis, federal courts
“the least of the acts criminalized” by the statute, not the least culpable acts ever
prosecuted. Moncrieffe, 569 U.S. at 190–191 (quoting Curtis Johnson, 559 U.S. at 137)
(emphasis added, internal alterations and quotation omitted).
“[A]pplication of ACCA involves, and involves only, comparing elements.”
Mathis, 136 S. Ct. at 2257. The categorical approach “does not care about” facts. Id.
The Massachusetts burglary statute in United States v. Shepard was non-generic
because (on its face) it applied to “boats and cars.” 544 U.S. 13, 17 (2005). The Iowa
burglary statute in Mathis was also non-generic because, on its face, it included “a
broader range of places” than generic burglary, including any “land, water, or air
vehicle.” 136 S. Ct. at 2250 (citation omitted). And the Kansas drug statute in Mellouli
did not “relat[e] to” controlled substances, as defined in 21 U.S.C. § 802, because the
Kansas crime applied to “at least nine substances not included in the federal lists.”
135 S. Ct. at 1984.
12
None of these cases involved an examination of “state enforcement practices,”
and this Court did not treat any of these state offenses as “narrower than it plainly
is.” Swaby, 847 F.3d at 66; Titties, 852 F.3d at 1274. This Court has “never conducted
a ‘realistic probability’ inquiry” where “the elements of the crime of conviction are not
the same as the elements of the generic federal offense.” Singh, 839 F.3d at 286 n.10.
The closest it has come is in Moncrieffe, 569 U.S. at 206, but that was in dicta
responding to the Government’s worry about an argument someone else might make
in a hypothetical case.
Other circuits have criticized the Fifth Circuit’s ruling in Castillo-Rivera. See
Hylton, 897 F.3d at 64; Salmoran v. Att’y Gen., 909 F.3d 73, 81 (3d Cir. 2018). Even
within the Fifth Circuit, the excessively strict interpretation of Duenas-Alvarez is
controversial. Castillo-Rivera, 853 F.3d at 239–241 (Dennis, J., dissenting) & 243–
244 (Higginson, J., concurring in part and dissenting in part) (“Although I have
applied the “realistic-probability” test announced in Duenas-Alvarez, I agree with
Judge Dennis’s dissenting opinion that this added showing is unnecessary when a
state statute is facially broader than its federal analog.”).
4. Time has proven that the elements-only approach is the correct one. And the
wisdom of that approach is clear. Consider a state crime that draws no distinction
between intentional, knowing, reckless, or negligent mental states. There is no reason
to require a federal defendant to prove that such a statute reaches negligent or
reckless conduct. The statute clearly says so. The only time extrinsic evidence of
13
prosecution is necessary would be if the defendant were attempting to show that the
state statute extended beyond its plain-text meaning.
But the minority approach is not only unnecessary; it is also unwise. An
approach that involves judicially narrowing state statutes to assume they conform to
federally imposed boundaries is unfaithful to statutory text, casual with the proper
division of authority between State legislatures and federal courts, and inconsistent
with the rule of law. And the minority approach’s demand that statutory meaning
must be proven through empirical evidence departs from judicial function. It
presumes that the state crime triggers a severe penalty, and shifts the burden to the
defendant (or non-citizen) to prove otherwise.
Finally, the minority approach tilts the scale unfairly against criminal
defendants. The minority approach requires that a defendant prove that a statute
means what it says in order to disqualify it as an ACCA predicate. The “vast majority”
of state prosecutions, like “nearly all” criminal cases, “are resolved through plea
bargains,” which “are not published, nor are they readily accessible for review.”
Betansos v. Barr, 928 F.3d 1133, 1146–47 (9th Cir. 2019).
Even appellate decisions are unlikely to shed light on a burglar’s true mental
state. Where a Texas trespasser committed a reckless, negligent, or strict liability
crime inside a building, he would “have no incentive to contest” an allegation that his
predicate crime was intentional, rather than reckless, because that distinction “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.” Mathis, 136 S. Ct. at 2253. For a crime like
14
assault—which can be committed by “intentionally, knowingly, or recklessly” causing
bodily injury, Texas Penal Code § 22.01(a)(1)—those three mental states are
“conceptually equivalent.” Gomez-Perez v. Lynch, 829 F.3d 323, 328 (5th Cir. 2016)
(quoting Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008)). In other
words, the Fifth Circuit demanded defendants like Mr. Penny prove facts about other
people’s cases which were legally irrelevant to their conviction or sentence.
6. The division is entrenched and acknowledged. See Hylton, 897 F.3d at 65
(recognizing circuit courts’ “nearly unanimous disagreement” with the Fifth Circuit
position); see also Vazquez, 885 F.3d at 873–874 (acknowledging that “a statute’s
plain meaning is dispositive” in “[o]ther circuits,” but not in the Fifth Circuit). And
the lower courts’ divergent views lead to divergent outcomes, not just under the
ACCA’s “violent felony” definition, but under every federal statute incorporating
Taylor’s “categorical approach”—the definitions of “crime of violence” in 18 U.S.C.
§§ 16, 521, 924(c)(3), and 3156; “misdemeanor crime of domestic violence” in
§ 921(a)(33)(A); “serious violent felony” in § 3559(c)(2)(F); the definitions of, and
classifications for, “sex offenses” under SORNA, 34 U.S.C. § 20911; the U.S.
Sentencing Guidelines’ definitions of “crime of violence” and “controlled substance
offense,” U.S.S.G. § 4B1.2, and immigration law’s definitions of “aggravated felony,”
8 U.S.C. § 1101(a)(43), and “crime of moral turpitude,” § 1227(a)(2)(A)(i).
15
B. As an alternative rationale for holding that Texas burglary is
categorically generic, the Fifth Circuit has embraced a
strained construction of Texas law that does not satisfy
Taylor’s demand for certainty.
The Texas Court of Criminal Appeals has never directly addressed whether a
trespasser who commits a reckless, negligent, or strict-liability crime is guilty of
burglary under § 30.02(a)(3). The statute plainly allows conviction under those
circumstances. The court has held that it is permissible to convict someone under
Texas Penal Code § 30.02(a)(3) where the trespasser enters and then “subsequently
forms” specific intent “and commits or attempts a felony or theft.” DeVaughn, 749
S.W.2d at 65 (quoting Seth S. Searcy, III and James R. Patterson, Practice
Commentary 144, Vernon’s Texas Codes Annotated (West 1974)); see also Flores v.
State, 902 S.W.2d 618, 620 (Tex. App.—Austin 1995, pet. ref’d) (“Prosecution under
section 30.02(a)(3) is appropriate when the accused enters without effective consent
and, lacking intent to commit any crime upon his entry, subsequently forms that
intent and commits or attempts to commit a felony or theft.”).
DeVaughn recognized that Subsection (a)(3) “supplants the specific intent”
that would otherwise be required under Texas Penal Code § 30.02(a)(1) and (a)(2)
with the commission of a predicate offense. Id. Based on this language allowing
conviction where an offender forms specific intent after entry, the Fifth Circuit has
decided that Texas requires proof of specific intent before convicting under Subsection
(a)(3). But the plain statutory text and the Court of Criminal Appeals’s analysis of a
nearly identical statute together strongly suggest that the crime is broader than
16
generic burglary. Multiple appellate decisions from lower courts confirm that
formation of specific intent is not an element under § 30.02(a)(3).
1. In Texas, the crimes of murder and burglary share a similar structure:
Murder (Penal Code § 19.02(b)):
A person commits an offense if he:
(1) intentionally or knowingly causes
the death of an individual;
Burglary (Penal Code § 30.02(a)):
A person commits an offense if, without
the effective consent of the owner, the
person:
(1) enters a habitation, or a building (or
any portion of a building) not then open
to the public, with intent to commit a
felony, theft, or an assault; or
(2) remains concealed, with intent to
commit a felony, theft, or an assault,
in a building or habitation; or
(2) intends to cause serious bodily
injury and commits an act clearly
dangerous to human life that causes the
death of an individual; or
(3) commits or attempts to commit a (3) enters a building or habitation and
felony, other than voluntary or commits or attempts to commit a
involuntary manslaughter, and in the felony, theft, or an assault.
course of and in furtherance of the
commission or attempt . . . he commits
or attempts to commit an act clearly
dangerous to human life that causes the
death of an individual.
For murder, the Court of Criminal Appeals has held that this this structure
unambiguously eliminates the requirement to prove additional means rea beyond
that required for commission of the predicate offense: “It is significant and largely
dispositive that Section 19.02(b)(3) omits a culpable mental state while the other two
subsections in Section 19.02(b) expressly require a culpable mental state.” Lomax v.
State, 233 S.W.3d 302, 304 (Tex. Crim. App. 2007) (quoting Aguirre v. State, 22
S.W.3d 463, 472–473 (Tex. Crim. App. 1999)); id. at 307 n.14 (“It is difficult to imagine
how Section 19.02(b)(3), with its silence as to a culpable mental state, could be
construed to require a culpable mental state for an underlying felony for which the
17
Legislature has plainly dispensed with a culpable mental state.”). It stands to reason
that the court would interpret § 30.02(a)(3) the same way it interpreted
§ 19.02(b)(3)—if the predicate offense does not require specific intent, then there is
no need to prove that mental state.
2. The Texas intermediate courts have not spoken with one voice, but most
cases recognize that the commission of a negligent or reckless crime while trespassing
would satisfy the “elements” of Subsection (a)(3), even if the trespasser never formed
the intent to commit that crime. See, e.g., Duran v. State, 492 S.W.3d 741, 743 (Tex.
Crim. App. 2016) (entry plus commission of reckless aggravated assault); Battles v.
State, 13-12-00273-CR, 2013 WL 5520060, at *1 & n.1 (Tex. App. Oct. 3, 2013) (entry
plus negligently or recklessly injuring an elderly person);
When listing the elements of “burglary” under § 30.02(a)(3), Texas appellate
decisions routinely recognize that felonies with reckless or even negligent mens rea
are sufficient to give rise to liability under § 30.02(a)(3):
Daniel v. State, 07-17-00216-CR, 2018 WL 6581507, at *3 (Tex.
App.—Amarillo Dec. 13, 2018, no pet.): “All the State was
required to prove was that he entered the residence without
consent or permission and while inside, assaulted or attempted to
assault Phillips and Schwab.” Id. And “a person commits assault
when he intentionally, knowingly, or recklessly causes bodily
injury to another.” Id., 2018 WL 6581507, at *2 (emphasis added).
State v. Duran, 492 S.W.3d 741, 743 (Tex. Crim. App. 2016)
(recognizing reckless assault as a predicate for § 30.02(a)(3)
liability);
Scroggs v. State, 396 S.W.3d 1, 10 & n.3 (Tex. App.—Amarillo
2010, pet. ref’d, untimely filed) (same);
Wingfield v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth
2009, pet. ref’d) (same);
18
Alacan v. State, 03-14-00410-CR, 2016 WL 286215, at *3 (Tex.
App.—Austin Jan. 21, 2016, no pet.) (same);
Crawford v. State, 05-13-01494-CR, 2015 WL 1243408, at *2 (Tex.
App.—Dallas Mar. 16, 2015, no pet.) (same);
Johnson v. State, 14-10-00931-CR, 2011 WL 2791251, at *2 (Tex.
App.—Houston [14th Dist.] July 14, 2011, no pet.) (same);
Torrez v. State, 12-05-00226-CR, 2006 WL 2005525, at *2 (Tex.
App.—Tyler July 19, 2006, no pet.) (same);
Guzman v. State, 2-05-096-CR, 2006 WL 743431, at *2 (Tex.
App.—Fort Worth Mar. 23, 2006, no pet.) (same)
Brooks v. State, 08-15-00208-CR, 2017 WL 6350260, at *7 (Tex.
App.—El Paso Dec. 13, 2017, pet. ref’d) (listing robbery by
reckless causation of injury as a way to prove § 30.02(a)(3)).
Battles v. State, 13-12-00273-CR, 2013 WL 5520060, at *1 & n.1
(Tex. App.—Corpus Christi Oct. 3, 2013, pet. ref’d) (recognizing
that the predicate felony—injury to an elderly individual under
Texas Penal Code § 22.04—could be committed with recklessness
or with “criminal negligence.”
Particularly in light of the reasoning of Lomax, these cases eliminate the
inference that Texas requires proof of “formation of specific intent” to convict under
§ 30.02(a)(3). Under the reasoning of Van Cannon, 890 F.3d at 664, and Chazen v.
Marske, 938 F.3d 851, 860 (7th Cir. 2019), that makes § 30.02(a)(3) non-generic. But
the Fifth Circuit has held that it is generic. This Court should grant the petition to
resolve that conflict.
3. Against this wall of authority, there are three isolated and unpublished
Texas court decisions suggesting—in dicta—that the State must prove formation of
specific intent to convict under § 30.02(a)(3). Those decisions are: Matini v. State, 0503-00686-CR, 2004 WL 1089197, at *4 (Tex. App.—Dallas May 17, 2004, no pet.)
(“Under Section 30.02(a)(3) of the Penal Code, the State must prove, beyond a
19
reasonable doubt, that the accused, without effective consent, entered a building or
habitation lacking the intent to commit an assault, but subsequently formed that
intent and then committed or attempted to commit assault.”) (emphasis added);
Chavez v. State, 08-04-00319-CR, 2006 WL 2516464, at *3 (Tex. App.—El Paso Aug.
31, 2006, no pet.) (“Under this section, the State is not required to prove that the
accused intended to commit the felony prior to entry; rather, the State has to prove
that the accused, without effective consent, entered a habitation and subsequently
formed the intent to commit a felony and then committed or attempted to commit the
felony.”) (emphasis added); Leaks v. State, 13-03-613-CR, 2005 WL 704409, at *2(Tex.
App.—Corpus Christi Mar. 24, 2005, pet. ref’d) (“The State . . . must also prove that,
after entry into the habitation, appellant formed an intent to commit, and did commit,
a felony, theft or an assault.” (emphasis added).
4. Thus far, Respondent has successfully resisted review of the Fifth Circuit’s
precedent by arguing that this Court should “defer” to that court’s interpretation of
Texas law. See, e.g., U.S. Br. in Opp. 13, Herrold v. United States, No. 19-7731 (citing
Bowen v. Massachusetts, 487 U.S. 879, 908 (1988), and Elk Grove Unified Sch. Dist.
v. Newdow, 542 U.S. 1, 16 (2004)). As a preliminary matter, that “deference” is never
absolute—Newdow itself reversed the Ninth Circuit’s interpretation of California
intermediate appellate decisions. 542 U.S. at 16.
But, on a broader level, this case involves an important and recurring question
of federal law—whether “Taylor’s demand for certainty,” applies to a sentencing
court’s interpretation of state decisional law. Shepard, 544 U.S. at 21. Though the
20
Fifth Circuit’s implausible construction of § 30.02(a)(3) finds some support scattered
in unreported decisions, it is far from certain that the court correctly interpreted
Texas law. No, the great weight of authority supports the plain reading of
§ 30.02(a)(3)—it requires only proof of commission of a crime, even if that crime was
not intentional.
5. Unlike other areas where regional courts must construe state law, the
ACCA’s categorical approach requires doubt about state law to be resolved in favor of
the defendant. In Mathis v. United States, this Court held that a sentencing judge
must treat a statute as indivisible (and non-generic) unless the relevant materials—
including state court decisions—“speak plainly.” 136 S. Ct. at 2257. That suggests
that both questions presented should be resolved in Mr. Penny’s favor.
III. IT IS TIME FOR THE COURT TO OVERRULE ITS DUBIOUS DECISION IN
ALMENDAREZ-TORRES .
Several members of this Court—past and present—have expressed a
willingness to open the book on reconsideration of Almendarez-Torres v. United
States, 523 U.S. 224 (1998). There were, of course, the four justices who dissented
from the original opinion—Justices Scalia, Stevens, Souter, and Ginsburg. 523 U.S.
at 248–271 (Scalia, J., dissenting). Just two years later, Justice Thomas expressed
regret about joining the majority—he conceded that there were “errors” in the
Almendarez-Torres majority decision “to which I succumbed.” Apprendi v. New
Jersey, 530 U.S. 466, 520 (2000) (Thomas, J., concurring). He also joined Justice
Stevens’s majority decision in Apprendi, which recognized that it is “arguable” that
Almendarez-Torres was wrongly decided. Id. at 468.
21
Justice Thomas has been the most prominent critic of the decision, displaying
what one commentator—himself an accomplished Supreme Court advocate—
describes as “the zeal of the converted on this issue.” John Elwood, “Re-list watch:
Will the Court reconsider Almendarez-Torres?” SCOTUSblog (Jan. 27, 2011).2 See,
e.g., Sessions v. Dimaya, 138 S. Ct. 1204, 1253–54 (2018) (Thomas, J., dissenting);
Mathis v. United States, 136 S. Ct. 2242, 2259 (2016) (Thomas, J., concurring)
(Almendarez-Torres should be overruled.); Descamps v. United States, 570 U.S. 254,
280–81 (2013) (Thomas, J., concurring) (“The only reason Descamps’ ACCA
enhancement is before us is ‘because this Court has not yet reconsidered AlmendarezTorres v. United States . . . .”); Shepard, 544 U.S. at 27 (Thomas, J., concurring in part
and concurring in judgment) (same).
Other Justices have provided less-than-glowing reviews of the decision. For
example, in Alleyne v. United States, 570 U.S. 99, 112 n.1 (2013), Justices Ginsburg,
Breyer, Sotomayor, and Kagan all joined Justice Thomas’s majority opinion making
it clear that the Court did not “revisit” Almendarez-Torres’s holding in Alleyne
because the parties did not ask it to.
On multiple occasions, this Court has ordered the Solicitor General to respond
certiorari petitions mounting an aggressive challenge to Alemendarez-Torres,
sometimes relisting a petition several times and presumably debating whether the
time has finally come to discard the increasingly indefensible outlier. See, e.g.,
https://www.scotusblog.com/2011/01/re-list-watch-will-the-court-reconsideralmendarez-torres/
2
22
Docket, Ayala-Segoviano v. United States, No. 10-5296 (U.S. pet. denied Feb. 22,
2011) (re-listed three times after Court-ordered response)3; Docket, Vazquez v. United
States, No. 10-6117 (U.S. pet. denied Feb. 22, 2011) (re-listed three times after Courtordered response).
This case in particular identifies the pragmatic problems that arise because of
the Almendarez-Torres exception. Mr. Penny initially pleaded guilty to the
indictment thinking he would face, at worst, a ten-year sentence. A late-breaking
revelation of an additional conviction changed the calculus. App., infra, 6a. The
Government was unaware of the other conviction. After the conviction was revealed
(and in light of changes to Fifth Circuit precedent), he became aware he likely would
be eligible for sentencing under the ACCA. He withdrew the plea, filed a motion to
suppress, then ultimately entered a conditional plea.
Normally, a defendant could file a pretrial motion to dismiss an indictment to
resolve purely legal questions about the scope of a federal criminal statute. If the
indictment had listed the convictions upon which the Government intended to rely to
support the ACCA, the parties could have litigated the ACCA questions way back in
May of 2018. Fifth Circuit law was more favorable to Mr. Penny, and the parties were
unaware of at least one of the convictions upon which the district court eventually
relied to impose the ACCA sentence.
Moreover, the progress of this case shows the pernicious effects of the epicycles
created to preserve Almendarez-Torres. It is extremely unusual to allow a guilty plea
3 https://www.supremecourt.gov/search.aspx?filename=/docketfiles/10-5296.htm
23
where the parties and even the court do not know whether the crime is punishable
by 0–10 years or 15 years–life in prison. It is extremely unusual to have such dramatic
consequences depend upon the Byzantine, unpredictable analysis required by the
categorical approach, which is itself an outgrowth of the Almendarez-Torres
exception. No one can predict the future with certainty, but one can hope that our
grandchildren will not still be arguing about the importance of obscure and unrelated
intermediate state court appellate opinions, with decades of prison time on the line.
Mr. Penny preserved this claim in the district court and again on appeal.
Aside from the existence of the predicate convictions, there are also Fifth and
Sixth Amendment implications to their number and sequence. Applying AlmendarezTorres, this Court allows a sentencing judge to make those decisions: “To determine
whether two offenses occurred on different occasions, a court is permitted to examine
only ‘the statutory definition, charging document, written plea agreement, transcript
of plea colloquy, and any explicit factual finding by the trial judge to which the
defendant assented.’” United States v. Fuller, 453 F.3d 274, 279 (5th Cir. 2006)
(quoting United States v. Norwood, 155 F. App’x 784, 785–786 (5th Cir.2005), and
Shepard v. United States, 544 U.S. 13, 16 (2005)). This Court’s decision in Wooden v.
United States, issued earlier today, provides substantive guidance on how to decide
whether convictions occurred on separate occasions, but does not address the
constitutional objections to a court making that decision at sentencing by a
preponderance of the evidence. This case thus presents an issue left open by Wooden.
The Court should grant certiorari to resolve it.
24
CONCLUSION
Petitioner asks that this Court grant the petition and set the case for a decision
on the merits.
Respectfully submitted,
J. MATTHEW WRIGHT
FEDERAL PUBLIC DEFENDER’S OFFICE
NORTHERN DISTRICT OF TEXAS
500 SOUTH TAYLOR STREET, SUITE 110
AMARILLO, TEXAS 79101
MATTHEW_WRIGHT@FD.ORG
(806) 324-2370
MARCH 7, 2022
25
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.