“Whoever commits a federal crime of violence after assaulting a happy clown shall be imprisoned for life.”
Consider the following ACCA prosecutions:Defendant #1 commits a federal crime of violence after a prior conviction under a California statute that makes it a felony to “assault a clown.” The government seeks a life sentence under the ACCA. Defendant #1’s intrepid lawyer, Carl Folsom, objects. “Judge," says Carl, “the California statute is missing an element. California only requires proof that he assaulted a clown. The state never had to prove that he assaulted a happy clown.” The prosecutor then provides a transcript of the plea proceeding, in which the defendant admits that the clown he assaulted was very happy indeed, contentedly twisting balloon animals at a child’s birthday party when the defendant began beating the poor clown with his own oversized shoe.
Undeterred, Carl presses on. “Your Honor, it doesn’t matter what the defendant admitted to. We only look to the elements of the crime, and the state never had to prove that my client assaulted a happy clown. They only had to prove that he assaulted a clown. It doesn’t matter what my client actually did; it only matters what the state had to prove.”Defendant #2 (happily also represented by Carl) receives notice of an ACCA enhancement. Defendant #2’s prior conviction was suffered under an Iowa statute that proscribes “assaulting a happy clown,” mirroring the language of the federal enhancement statute. Things look grim. But in studying the Iowa statute, Carl notices something. While Iowa requires the jury to agree that the defendant assaulted a happy clown, it defines “happy clown” as:
1) Birthday party clowns,
2) Rodeo clowns, or
3) Scary clowns that pop out of sewers and scare children.
Emboldened, Carl saunters into the sentencing. “Judge, my client cannot be punished under the ACCA. When Congress sought to punish assaults on happy clowns, it meant the kinds of clowns that we generally think of as happy clowns. When we think of happy clowns, we do not think of scary clowns that pop out of sewers and scare children. Put another way, a scary clown does not meet the generic definition of a happy clown.” The prosecutor, sensing something might be up, again produces a transcript which demonstrates the defendant admitted he assaulted a blissfully happy birthday party clown.
Looking like a man who knows something, Carl returns to the podium. “Judge, they’re doing it again. It just doesn’t matter what the defendant did. It only matters what the state had to prove. And the state did not have to prove that the defendant assaulted a generic happy clown. The state had to prove that the defendant assaulted either a birthday party clown, a rodeo clown, or a scary clown. Because the factfinder did not have to agree on which kind of clown was assaulted, the ACCA enhancement cannot be applied.”Is Carl right? Of course Carl is right.
Swap out "burglary" for "clown assault" and the Supreme Court has already decided both cases in our favor. Remember: Our question is whether the state offense the government wants to use to enhance our client’s sentence establishes all elements of the generic crime (burglary, clown bashing, etc.). Defendant #1’s case was resolved in Descamps v. United States. There, the Court held that when a state statute is missing an element of the generic offense, it does not qualify as a violent felony under the ACCA, whether the defendant admits that element or not. We look only at what the state had to prove. We don’t care if the defendant admitted something else.
The Supreme Court resolved Defendant #2’s case last week in Mathis v. United States. Mathis held that when a state statute sweeps more broadly than the generic offense, it cannot serve as a violent felony under § 924(e). Iowa burglary prohibits unlawfully entering an occupied structure to commit a crime. But Iowa then defines “occupied structure” to include non-generic objects of burglary like cars and airplanes. The key here is that the jurors need not agree on what kind of occupied structure the defendant burgled. Because the jurors do not have to agree that a generic burglary was committed, Iowa burglary, said Mathis, cannot serve as a violent felony under § 924(e).
Is this a big deal? We think it’s a big deal. For one, Mathis abrogated the Tenth Circuit’s approach to statutory divisibility and the modified categorical approach in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014). For two, a large number of Kansas statutes have the same problem the Court identified in Mathis. More on that later.
---From Kirk Redmond
---From Kirk Redmond