Brief filed: 10/31/2012
Descamps v. United States
United States Supreme Court; Case No. 11-9540
Decision below 466 Fed.Appx. 563 (9th Cir. 2012)
Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.
The Ninth Circuit construed the Supreme Court’s Modified Categorical Approach to permit a dramatic exception to the Categorical Approach’s limited elements-based inquiry, but the Modified Categorical Approach does not apply to missing-element statutes. Applying the Modified Categorical Approach to missing-element statutes would render the ACCA unconstitutional in many applications and poses significant practical difficulties and risks manifest unfairness. If there is no way to distinguish among applications of the Modified Categorical Approach, it should be abandoned, not expanded.
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Kevin K. Russell, Goldstein & Russell, P.C., Washington, DC; Jeffrey L. Fisher and Pamela S. Karlan, Stanford Law School Supreme Court Litigation Clinic, Stanford, CA.