Petition for Writ of Certiorari — Alvin Porterie, Jr., Petitioner v. United States

No. ________________

______________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

______________________________________

ALVIN PORTERIE, JR.,

Petitioner,

versus

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

__________________________________________________________________

REBECCA L. HUDSMITH

Federal Public Defender

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of

Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

1

QUESTION PRESENTED

Whether a defendant challenging a prior state conviction under the Armed

Career Criminal Act must produce actual state court decisions showing non-generic

application of a facially overbroad statute—as the Fifth Circuit alone requires—or

whether the statutory text suffices to demonstrate overbreadth—as every other

circuit holds?

2

TABLE OF CONTENTS

QUESTION PRESENTED ........................................................................................... 2

TABLE OF CONTENTS ............................................................................................... 3

APPENDIX INDEX ...................................................................................................... 4

TABLE OF AUTHORITIES ......................................................................................... 5

OPINIONS BELOW ..................................................................................................... 7

JURISDICTION............................................................................................................. 7

STATUTORY PROVISIONS INVOLVED .................................................................... 7

INTRODUCTION .......................................................................................................... 8

STATEMENT OF THE CASE..................................................................................... 10

A. Factual and Procedural Background .......................................................... 10

B. The Fifth Circuit Panel Proceedings........................................................... 10

C. The Petition for Rehearing En Banc ........................................................... 11

REASONS FOR GRANTING THE WRIT ................................................................. 13

I.

II.

THE COURTS OF APPEALS ARE IRRECONCILABLY SPLIT ON A

FUNDAMENTAL QUESTION OF FEDERAL CRIMINAL LAW ............ 13

A.

The Fifth Circuit’s Outlier Position ................................................. 13

B.

Every Other Circuit Rejects the Fifth Circuit’s Approach .............. 14

C.

The Split Creates Arbitrary Results and Is Acknowledged and

Entrenched ........................................................................................ 16

THE FIFTH CIRCUIT'S “ACTUAL CASE” REQUIREMENT

CONTRADICTS THIS COURT’S PRECEDENT AND SOUND

PRINCIPLES OF STATUTORY INTERPRETATION.............................. 17

3

III.

A.

This Court’s Recent Decision in Justin Taylor Forecloses the Fifth

Circuit’s Approach............................................................................. 18

B.

The “Actual Case” Requirement Misreads Duenas-Alvarez ........... 19

C.

The Rule Violates Basic Principles of Statutory Interpretation ..... 19

D.

The Categorical Approach Focuses on Elements, Not

Enforcement Patterns or Facts ........................................................ 20

THE QUESTION PRESENTED IS OF EXCEPTIONAL IMPORTANCE

AND WARRANTS IMMEDIATE REVIEW .............................................. 22

A.

The Circuit Split Affects Thousands of Cases Across Multiple

Areas of Federal Law ........................................................................ 22

B.

The Fifth Circuit’s Rule Imposes an Unfair and Often Impossible

Burden ............................................................................................... 23

C.

The Legal Question Is Cleanly Presented........................................ 24

CONCLUSION ............................................................................................................ 24

APPENDIX INDEX

Fifth Circuit order denying rehearing en banc, March 11, 2025 .....................App. 001

Fifth Circuit opinion, February 11, 2025 ..........................................................App. 003

District court judgment, August 1, 2022 ..........................................................App. 017

4

TABLE OF AUTHORITIES

Alexis v. Barr, 960 F.3d 722 (5th Cir. 2020) ............................................................... 17

Arthur Taylor v. United States, 495 U.S. 575 (1990) ............................................. 9, 20

Bedroc Ltd. v. United States, 541 U.S. 176 (2004) ..................................................... 19

Betansos v. Barr, 928 F.3d 1133 (9th Cir. 2019) ....................................................... 13

Borden v. United States, 593 U.S. 420 (2021) .....................................................passim

Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) ..............................................passim

Gonzalez v. Wilkinson, 990 F.3d 654 (8th Cir. 2021) ...................................... 15-16, 23

Gordon v. Barr, 965 F.3d 252 (4th Cir. 2020) ............................................................. 14

Hylton v. Sessions, 897 F.3d 57 (2d Cir. 2018) ...................................................... 15-17

Mathis v. United States, 579 U.S. 500 (2016) ............................................................ 20

Mellouli v. Lynch, 575 U.S. 798 (2015) ....................................................................... 20

Mendieta-Robles v. Gonzales, 226 F. App’x 564 (6th Cir. 2007) (unpublished) ........ 15

Moncrieffe v. Holder, 569 U.S. 184 (2013) .................................................................. 20

Mowlana v. Lynch, 803 F.3d 923 (8th Cir. 2015) .................................................. 15-16

Ramos v. Att’y Gen., 709 F.3d 1066 (11th Cir. 2013) ................................................. 15

Shepard v. United States, 544 U.S. 13 (2005) ............................................................ 20

Singh v. Attorney General, 839 F.3d 273 (3d Cir. 2016) ............................................ 15

Swaby v. Yates, 847 F.3d 62 (1st Cir. 2017) ............................................................... 15

United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en banc) ..........passim

United States v. Garner, 28 F.4th 678 (5th Cir. 2022) .............................................. 11

United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en banc) ........................... 14-15

5

United States v. Justin Taylor, 596 U.S. 845 (2022) ...................................... 11, 18, 21

United States v. Stitt, 586 U.S. 27 (2018) ............................................................. 14-15

United States v. Titties, 852 F.3d 1257 (10th Cir. 2017) ........................................... 15

Van Cannon v. United States, 890 F.3d 656 (7th Cir. 2018) ..................................... 15

Wooden v. United States, 595 U.S. 360 (2022) ................................................ 10-11, 24

STATUTES

8 U.S.C. § 1101(a)(43) .................................................................................................. 22

18 U.S.C. § 16 ............................................................................................................... 22

18 U.S.C. § 922(g) ........................................................................................................ 10

18 U.S.C. § 924(e) (Armed Career Criminal Act (“ACCA”)) ................................passim

U.S.S.G. § 4B1.1........................................................................................................... 22

U.S.S.G. § 4B1.2........................................................................................................... 22

La. R.S. 14:34 (Louisiana aggravated battery) ...................................... 8, 10-11, 13, 24

6

OPINIONS BELOW

The opinion of the United States Court of Appeals for the Fifth Circuit

affirming petitioner’s conviction and sentence can be found at United States v.

Porterie, No. 22-30457, 2025 WL 457999 (5th Cir. Feb. 11, 2025) (unpublished), and

is set forth at Pet. App. 003. The opinion of the United States Court of Appeals for

the Fifth Circuit denying rehearing en banc can be found at Pet. App. 001.

JURISDICTION

The judgment of the court of appeals was entered on March 11, 2025. The

jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides in relevant

part:

(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 * * *.

(2)(B) the term “violent felony” means any crime punishable by

imprisonment for a term exceeding one year * * * that—

(i)

has as an element the use, attempted use, or threatened

use of physical force against the person of another * * *.

7

INTRODUCTION

A defendant’s federal sentence should not depend on the publishing practices

of state courts. Yet that is precisely what the Fifth Circuit’s outlier rule requires.

Standing alone among the federal courts of appeals, the Fifth Circuit demands that

defendants produce “actual cases” proving that state statutes mean what their text

plainly says—even when the statutory language unambiguously criminalizes conduct

beyond the federal generic offense.

Under Borden v. United States, 593 U.S. 420 (2021), general intent crimes that

can be committed recklessly or negligently cannot qualify as violent felonies under

the Armed Career Criminal Act’s elements clause because they do not require the

“active employment of force” that the elements clause demands. Petitioner had a prior

conviction under Louisiana’s aggravated battery statute, which is a general intent

crime that can be committed recklessly or negligently. Nonetheless, the Fifth Circuit

upheld Petitioner’s ACCA-enhanced sentence, reasoning that he failed to produce

sufficient “actual cases” proving Louisiana courts have applied the statute to reckless

conduct.

This ruling perpetuates a circuit split that has festered for years. Every other

circuit to address the issue has rejected the Fifth Circuit’s approach, holding that

facial overbreadth demonstrated by statutory text is sufficient to establish that a

state offense is non-generic. The split affects thousands of defendants nationwide and

creates arbitrary results based on the happenstance of geographic prosecution and

the vagaries of state court publishing practices.

8

The conflict also reflects a fundamental disagreement about basic principles of

statutory interpretation. When a statute’s text is unambiguous, courts typically look

no further—they do not require extrinsic evidence that the statute means what it

says. Yet the Fifth Circuit’s rule flips this principle on its head, requiring defendants

to prove through “actual cases” that facially overbroad statutes have been applied as

written.

This untenable split creates a nationwide inconsistency in the application of

federal criminal law that begs the Court’s intervention. Defendants face wildly

different outcomes based solely on which circuit hears their case, not on the merits of

their claims. Meanwhile, the Fifth Circuit’s rule imposes a near insurmountable

burden on defendants by forcing them to find published decisions in an era where

most criminal cases end in plea agreements and many state court decisions are

neither published nor easily accessible.

The question presented goes to the heart of the categorical approach this Court

established in Arthur Taylor v. United States, 495 U.S. 575 (1990), and refined in

subsequent decisions. It affects not only the ACCA but also immigration law, the

federal sentencing guidelines, and other federal statutes that employ categorical

analysis. The time has come to resolve this important question of federal law and

restore uniformity to an area that affects thousands of cases each year.

9

STATEMENT OF THE CASE

A.

Factual and Procedural Background

On October 27, 2021, Alvin Porterie, Jr. was charged with being a felon in

possession of a firearm in violation of 18 U.S.C. § 922(g). ROA.9. After pleading guilty,

he faced sentencing under the Armed Career Criminal Act (ACCA), which elevates

the statutory sentencing range to 15 years to life imprisonment for defendants with

three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. §

924(e)(1).

Porterie’s ACCA enhancement rested on five Louisiana convictions, all over a

decade old: a 2006 conviction for aggravated battery under La. R.S. 14:34, a 1993

conviction for cocaine distribution, and three 1994 cocaine distribution convictions.

The district court imposed the 15-year mandatory minimum sentence. ROA 198-99.

Porterie did not object to the ACCA enhancement in the district court.

B.

The Fifth Circuit Panel Proceedings

After initially filing an Anders brief, counsel was directed to address (1)

whether Porterie’s Louisiana aggravated battery conviction under La. R.S. 14:34

constitutes a “violent felony” under the ACCA’s elements clause as interpreted by

Borden v. United States, 593 U.S. 420 (2021), given that it is a general intent crime

that can be committed recklessly or negligently, and (2) whether his three October

11, 1994 cocaine distribution convictions count as a single ACCA predicate under

Wooden v. United States, 595 U.S. 360 (2022), because they occurred in one

uninterrupted string of events.

10

The Fifth Circuit panel acknowledged that Louisiana aggravated battery is a

general intent crime and that “reckless or negligent states of mind can satisfy

Louisiana’s general intent standard.” Pet. App. 010 (citing United States v. Garner,

28 F.4th 678, 683 (5th Cir. 2022)). Under Borden, crimes with a mens rea of

recklessness cannot qualify as violent felonies under the ACCA’s elements clause

because they do not require the “active employment of force against another person.”

593 U.S. at 445. The panel did not dispute this principle. Instead, it held that Porterie

was required to produce “actual cases” demonstrating that Louisiana courts have

applied the aggravated battery statute to defendants who acted only recklessly. Pet.

App. 011-012. Finding Porterie’s proffered state cases insufficient to meet the “actual

case” standard from United States v. Castillo-Rivera, 853 F.3d 218 (5th Cir. 2017) (en

banc), the panel affirmed Porterie’s sentence without reaching his Wooden argument

regarding the cocaine convictions. Pet. App. 013-016.

C.

The Petition for Rehearing En Banc

Porterie filed a petition for rehearing en banc, arguing that the “actual case”

requirement should not apply to the ACCA’s elements clause and that Castillo-

Rivera’s interpretation of Gonzales v. Duenas-Alvarez, 549 U.S. 183 (2007) conflicts

with this Court’s precedent and the approach of every other circuit. The petition

highlighted that this Court’s recent decision in United States v. Justin Taylor, 596

U.S. 845 (2022), explicitly rejected requiring defendants to present empirical evidence

about prosecutorial practices when interpreting elements clauses.

11

The Fifth Circuit denied rehearing en banc without recorded dissent. Pet. App.

001-002.

12

REASONS FOR GRANTING THE WRIT

I.

THE COURTS OF APPEALS ARE IRRECONCILABLY SPLIT ON A

FUNDAMENTAL QUESTION OF FEDERAL CRIMINAL LAW

The circuits are deeply and intractably divided on whether defendants must

produce “actual cases” showing state court application of facially overbroad statutes

when challenging prior convictions under categorical analysis. The Fifth Circuit

stands alone in requiring such evidence, while every other circuit to address the

question has rejected this nearly insurmountable burden.

A.

The Fifth Circuit’s Outlier Position

The Fifth Circuit’s rule originated in United States v. Castillo-Rivera, 853 F.3d

218 (5th Cir. 2017) (en banc), a closely divided en banc decision which held that

defendants must point to “actual cases” showing state courts have applied statutes in

a non-generic manner—even when the statute’s text is facially broader than the

federal generic offense. Id. at 223. Under this rule, “without supporting state case

law, interpreting a state statute’s text alone is simply not enough to establish the

necessary 'realistic probability.’” Id.

The decision below exemplifies how this rule operates in practice. Despite

acknowledging that Louisiana’s general intent standard can clearly be satisfied by

recklessness—and that reckless offenses cannot qualify under Borden—the panel

affirmed Petitioner’s ACCA sentence because he could not produce adequate “actual

cases” proving Louisiana courts have convicted defendants of aggravated battery

based on reckless conduct. Pet. App. 011-016.

13

B.

Every Other Circuit Rejects the Fifth Circuit’s Approach

The Fifth Circuit’s position has been explicitly rejected by every other circuit

to confront the issue. As the Fourth Circuit accurately observed in Gordon v. Barr,

965 F.3d 252 (4th Cir. 2020), “when the state, through plain statutory language, has

defined the reach of a state statute to include conduct that the federal offense does

not, the categorical analysis is complete.” Id. at 260. The burden does not shift to the

defendant to “find a case” applying the statute in the manner its text plainly

authorizes. Id.

Gordon was convicted of “willful discharge of ‘any firearm’” under Virginia law.

Id. at 254. He argued this didn’t qualify as a federal firearm offense because Virginia’s

statute included “antique firearms” excluded from the federal definition. Id. The

Fourth Circuit agreed without requiring Gordon to identify an actual prosecution

involving an antique firearm. Id. The Fourth Circuit noted that this approach “is in

accord with analyses conducted by our sister circuits”—though not with the Fifth

Circuit. See id. at 260-61 & n.9 (collecting cases and contrasting them with Castillo-

Rivera).

The en banc Ninth Circuit put it even more bluntly: “Where . . . a state statute

explicitly defines a crime more broadly than the generic definition, no ‘legal

imagination’ is required to hold that a realistic probability exists that the state will

apply its statute to conduct that falls outside the generic definition of the crime. The

state statute’s greater breadth is evident from its text.” United States v. Grisel, 488

14

F.3d 844 (9th Cir. 2007) (en banc) (citation omitted), abrogated on other grounds by

United States v. Stitt, 586 U.S. 27 (2018).

The First, Second, Third, Sixth, Seventh, Tenth, and Eleventh Circuits have

also all aligned with this common-sense approach. See Swaby v. Yates, 847 F.3d 62,

66 (1st Cir. 2017) (First Circuit holding that where the statutory language “clearly

does apply more broadly than the federally defined offense,” then the statute is nongeneric); Hylton v. Sessions, 897 F.3d 57, 63-64 (2d Cir. 2018) (a defendant need not

point to actual examples “when the statutory language itself . . . creates the realistic

probability”); Singh v. Attorney General, 839 F.3d 273, 286 n.10 (3d Cir. 2016) (The

Third Circuit holding that the “realistic probability” test comes into play only when

“the relevant elements” of the state crime and the generic definition are “identical”);

Mendieta-Robles v. Gonzales, 226 F. App’x 564, 572 (6th Cir. 2007) (unpublished)

(refusing to “ignore the clear language” of the state statute); Van Cannon v. United

States, 890 F.3d 656, 663 (7th Cir. 2018) (if the state statute “covers a broader swath

of conduct,” the offense is nongeneric); United States v. Titties, 852 F.3d 1257, 127475 & n.23 (10th Cir. 2017) (Tenth Circuit finding “no persuasive reason why we

should ignore [the] plain language to pretend the statute is narrower than it is” when

no example case exists); Ramos v. Att’y Gen., 709 F.3d 1066, 1071-72 (11th Cir. 2013)

(“Duenas-Alvarez does not require [an actual case] showing when the statutory

language itself . . . creates the ‘realistic probability’”).

Even the Eighth Circuit, which at the time of Castillo-Rivera seemed to share

the Fifth Circuit’s view, see generally Mowlana v. Lynch, 803 F.3d 923, 925 (8th Cir.

15

2015), has clarified its position and aligned itself with the majority. See Gonzalez v.

Wilkinson, 990 F.3d 654, 657-61 (8th Cir. 2021) (Rejecting the need for defendants to

provide evidence regarding how the state applied a statute when the language of the

statute covers the conduct because “the Supreme Court’s opinion in Duenas-Alvarez

makes no reference to the state’s enforcement practices or to how often prohibited

conduct is prosecuted”).

C.

The Split Creates Arbitrary Results and Is Acknowledged and

Entrenched

This one-versus-all circuit split creates profound and systemic unfairness.

Defendants face wildly different outcomes based solely on geography rather than

legal merit. A defendant convicted under the same Louisiana statute would have his

ACCA enhancement vacated in the Fourth Circuit but upheld in the Fifth Circuit—

not because the law differs, but because of conflicting judicial interpretations of

Duenas-Alvarez. Had Porterie been charged with possessing this firearm outside of

the Fifth Circuit, he would not be serving a 15-year mandatory minimum sentence.

The arbitrary nature of these results is particularly stark given that the

underlying legal question is often identical. State statutes with facially overbroad

language present the same interpretive issue regardless of which circuit reviews

them. Yet the Fifth Circuit’s outlier approach means defendants in Texas, Louisiana,

and Mississippi face enhanced sentences that would be vacated elsewhere.

This is not a subtle disagreement susceptible to harmonization. The circuits

have explicitly acknowledged their differences and show no signs of converging. The

Second Circuit specifically noted that “[o]ther circuits have registered nearly

16

unanimous disagreement with the approach” taken by the Fifth Circuit. Hylton, 897

F.3d at 65. The Fifth Circuit has repeatedly reaffirmed Castillo-Rivera despite sharp

criticism from its own judges, and the denial of the en banc petition in this case

without recorded dissent demonstrates that the Fifth Circuit does not intend to

revisit its outlier position. 1

Meanwhile, the practical impact continues to grow. The categorical approach

applies not only to the ACCA but also to immigration law, the federal sentencing

guidelines, and numerous other federal statutes. Each application of the conflicting

approaches deepens the split and multiplies the injustice to defendants unlucky

enough to be prosecuted in the Fifth Circuit. Only this Court can resolve this

fundamental disagreement about the scope of Duenas-Alvarez and restore uniformity

to federal criminal law.

II.

THE FIFTH CIRCUIT'S “ACTUAL CASE” REQUIREMENT CONTRADICTS

THIS COURT’S PRECEDENT AND SOUND PRINCIPLES OF STATUTORY

INTERPRETATION

The Fifth Circuit's approach is not merely an outlier position—it is

fundamentally wrong. The “actual case” requirement contradicts this Court’s

precedent, violates basic principles of statutory interpretation, and creates an unjust

burden that Congress never intended.

Even within the Fifth Circuit, the excessively strict interpretation of Duenas-Alvarez is

controversial. Castillo-Rivera, 853 F.3d at 239-41 (Dennis, J., dissenting) & 243-44 (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.”); Alexis v. Barr, 960

F.3d 722, 731-34 (5th Cir. 2020) (Graves, Jr., J., concurring) (“the realistic probability test and ‘actual

case’ requirement are simply illogical and unfair…”) & 734-36 (Dennis, J., dissenting).

1

17

A.

This Court’s Recent Decision in Justin Taylor Forecloses the Fifth

Circuit’s Approach

This Court's decision in United States v. Justin Taylor, 596 U.S. 845 (2022),

definitively rejected the type of empirical inquiry the Fifth Circuit demands. In Justin

Taylor, the government argued that defendants must present evidence about

prosecutorial practices to prove a statute’s scope. This Court’s response was

unequivocal:

Put aside the oddity of placing a burden on the defendant to present

empirical evidence about the government's own prosecutorial habits.

Put aside, too, the practical challenges such a burden would present in

a world where most cases end in plea agreements, and not all of those

cases make their way into easily accessible commercial databases.

Id. at 857 (citing to J. Turner, Transparency in Plea Bargaining, 96 Notre Dame L.

Rev. 973, 974, 978-981 (2021)).

The Court continued with what can only be described as a direct repudiation

of the Fifth Circuit’s approach:

An even more fundamental and by now familiar problem lurks here. The

government’s theory cannot be squared with the statute’s terms. [The

elements clause] doesn’t ask whether the crime is sometimes or even

usually associated with * * * force * * *. It asks whether the government

must prove, as an element of its case, the use, attempted use, or

threatened use of force.

Id at 857-58. (emphasis in original).

Justin Taylor made clear that elements clause analysis is textual, not

empirical. Where statutory elements do not overlap with federal requirements,

“[t]hat ends the inquiry.” Id. at 859. The Fifth Circuit's demand for “actual cases”

directly conflicts with this holding.

18

B.

The “Actual Case” Requirement Misreads Duenas-Alvarez

The Fifth Circuit’s interpretation of Duenas-Alvarez stretches that decision far

beyond its original scope. Duenas-Alvarez involved a California statute whose text

closely resembled the federal generic definition of theft. 549 U.S. at 187, 189. The

defendant argued that California’s judicial interpretation of aiding and abetting

liability was broader than other states’, transforming an otherwise generic-looking

statute into a non-generic one. Id. at 190-91.

In that narrow context—where statutory text matched the generic definition

and the defendant sought to prove overbreadth through speculative judicial

construction—the Court required proof of “realistic probability” through actual cases.

Id. at 193. But Duenas-Alvarez never suggested this requirement applies when

statutory text itself is facially broader than the generic offense.

The Fifth Circuit has inverted Duenas-Alvarez’s logic. Instead of preventing

defendants from using “legal imagination” to transform generic-looking statutes, it

requires defendants to produce “actual cases” proving that facially non-generic

statutes mean what they plainly say. This reading contradicts fundamental

interpretive principles.

C.

The Rule Violates Basic Principles of Statutory Interpretation

When statutory text is unambiguous, the interpretive inquiry ordinarily ends

there. Bedroc Ltd. v. United States, 541 U.S. 176, 183 (2004). Courts do not require

extrinsic evidence to prove that clear language means what it says. Yet the Fifth

19

Circuit’s rule does exactly that, demanding “actual cases” even when state statutes

are facially broader than federal generic offenses.

This approach also creates an improper presumption that state statutes

conform to federal definitions until proven otherwise—a presumption found nowhere

in this Court’s categorical approach jurisprudence. The categorical approach asks

what juries were “actually required to find” to convict, Arthur Taylor, 495 U.S. at 602,

not what prosecutors typically charge or courts usually decide.

D.

The Categorical Approach Focuses on Elements, Not Enforcement

Patterns or Facts

This Court has consistently emphasized that the categorical approach

“involves, and involves only, comparing elements.” Mathis v. United States, 579 U.S.

500, 521 (2016). It “does not care about” facts. Id. The approach asks what juries were

“actually required to find” to convict, Arthur Taylor, 495 U.S. at 602, and examines

“the least of the acts criminalized” by statute, not the least culpable acts ever

prosecuted, Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013).

Classic examples from this Court’s precedent illustrate this text-focused

approach. The Massachusetts burglary statute in Shepard v. United States was nongeneric because it applied to “boats and cars” on its face. 544 U.S. 13, 17 (2005). The

Iowa burglary statute in Mathis was also non-generic because it facially included “a

broader range of places” than generic burglary, including any “land, water, or air

vehicle.” 579 U.S. at 519. The Kansas drug statute in Mellouli v. Lynch did not “relate

to” controlled substances because the statute applied to “at least nine substances not

included in the federal lists.” 575 U.S. 798, 802 (2015).

20

Notably, none of these cases required examination of state enforcement

practices. This Court never demanded proof that Massachusetts had actually

prosecuted boat burglars, that Iowa had actually charged vehicle burglary, or that

Kansas had actually prosecuted defendants for possessing the nine additional

substances. The facial overbreadth evident from the statutory text was sufficient.

The Fifth Circuit's “actual case” requirement fundamentally contradicts this

element-focused approach. By demanding proof of how state courts have applied

statutes in practice, the rule improperly shifts focus from statutory elements to

factual enforcement patterns. This shift violates the basic principle that categorical

analysis involves comparing legal definitions, not investigating prosecutorial habits

or judicial enforcement trends.

The practical problems with requiring empirical evidence about enforcement

are severe and precisely what this Court warned against in Justin Taylor. Most

criminal prosecutions end in plea agreements that generate no published opinions.

Even when appellate decisions exist, they rarely address the mental state issues

relevant to categorical analysis because such issues are typically legally irrelevant

under state law. Requiring defendants to locate published decisions addressing

hypothetical applications of statutes creates a nearly impossible evidentiary burden

that Congress never intended and that undermines the entire purpose of the

categorical approach.

21

III.

THE QUESTION PRESENTED IS OF EXCEPTIONAL IMPORTANCE AND

WARRANTS IMMEDIATE REVIEW

The circuit split on the “actual case” requirement affects thousands of federal

defendants and creates systemic unfairness in the application of federal criminal law.

The question’s importance extends far beyond the ACCA context, affecting

immigration law, the federal sentencing guidelines, and other federal statutes

employing categorical analysis.

A.

The Circuit Split Affects Thousands of Cases Across Multiple Areas of

Federal Law

This case presents an ideal vehicle for resolving a circuit split that has broad

implications nationwide. The conflict extends far beyond the ACCA context, affecting

virtually every federal statute that employs categorical analysis. The stakes could not

be higher: thousands of defendants face dramatically different outcomes based solely

on the geographic happenstance of where they are prosecuted.

The scope of this interpretive disagreement is breathtaking. The categorical

approach governs not only ACCA cases but also immigration law’s “aggravated

felony” determinations under 8 U.S.C. § 1101(a)(43), the Sentencing Guidelines’

“crime of violence” and “controlled substance offense” definitions under U.S.S.G. §

4B1.2, career offender enhancements under § 4B1.1, and various federal criminal

statutes defining “crime of violence” under 18 U.S.C. § 16. Each application of the

Fifth Circuit’s outlier rule deepens existing inequities and multiplies the injustice.

22

B.

The Fifth Circuit’s Rule Imposes an Unfair and Often Impossible

Burden

The Fifth Circuit’s “actual case” requirement imposes a burden that is both

fundamentally unfair and often practically impossible to satisfy. Most criminal

prosecutions end in plea agreements that generate no published appellate decisions.

See Betansos v. Barr, 928 F.3d 1133, 1146-47 (9th Cir. 2019) (finding that “nearly all”

criminal cases “are resolved through plea bargains,” which “are not published, nor

are they readily accessible for review.”). State court databases remain incomplete,

and many relevant decisions are never published or made easily accessible. 2

Defendants typically have no incentive to contest mental state issues that would be

legally irrelevant under state law, making it unlikely that published decisions will

address the precise questions relevant to categorical analysis. The result is an

arbitrary system where defendants’ fates depend not on legal merit but on the

publishing practices of state courts and the resources available for exhaustive case

research.

The practical consequences of this split grow more severe with each passing

day. In this very case, the Fifth Circuit panel expressed frustration with the difficulty

of analyzing Louisiana state court decisions containing “sparse reasoning” and being

“equivocal”—a candid acknowledgment of the unworkability of its own rule. Pet. App.

2 As the Eighth Circuit recently explained, defendants often “have no incentive, and likely no

ability” to generate reported decisions on issues that, while authorized by statute, become legally

irrelevant under state law. Gonzalez, 990 F.3d at 661 n.2. The same court recognized that even when

states have prosecuted conduct falling outside the federal definition, “it is unclear whether this fact

would be documented” in any accessible decision. Id.

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015-016. If experienced federal judges find the “actual case” requirement difficult to

apply, the burden on defendants and their counsel is exponentially worse.

C.

The Legal Question Is Cleanly Presented

This case presents the circuit split in its clearest form. The parties agree on all

relevant factual and legal premises: Louisiana aggravated battery can be committed

recklessly, reckless offenses cannot qualify under Borden, and the sole disputed issue

is whether the “actual case” requirement applies. This clean presentation allows the

Court to address the core interpretive disagreement without becoming mired in

factual disputes or tangential legal issues. Should this Court overrule the Fifth

Circuit’s “actual case” requirement, Porterie’s aggravated battery conviction would

no longer be a predicate offense under the ACCA, and the case can be remanded for

the Fifth Circuit to resolve Porterie’s Wooden claim.

CONCLUSION

For more than five years, the Fifth Circuit has stood alone in requiring

defendants to produce “actual cases” proving that facially overbroad state statutes

mean what their text plainly says. This outlier position contradicts this Court’s

precedent, violates fundamental principles of statutory interpretation, and creates

arbitrary results based on geographical luck and state court publishing practices.

The circuit split is acknowledged, entrenched, and affects thousands of cases

each year. It creates systemic unfairness in federal criminal law and undermines the

uniform administration of justice. The question presented goes to the heart of the

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categorical approach and requires this Court’s authoritative resolution. The petition

for a writ of certiorari should be granted.

Respectfully submitted this June 9, 2025,

REBECCA L. HUDSMITH

Federal Public Defender

BY:

s/ Dustin C. Talbot

DUSTIN C. TALBOT

Appellate Chief

Federal Public Defender’s Office

Middle and Western Districts of Louisiana

102 Versailles Boulevard, Suite 816

Lafayette, Louisiana 70501

Telephone: (337) 262-6336

Attorney for the Petitioner

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