Categorical Approach: Longer Federal Sentences With Past Convictions

Things can get darker for those with past criminal convictions and a new federal arrest. There are times when new convictions will result in enhanced (greater, longer) punishments based upon prior criminal offenses.  How? Federal law will require the defendant’s sentence be boosted in time to be served behind bars because of something in the defendant’s past.  In legal parlance, this is done in accordance with the longstanding “categorical approach” to sentence determination.

For many, especially those practicing in the federal criminal defense bar, it can be a frustrating process.  Even Justices delivering their opinions from the United States Supreme Court have acknowledged that the categorial approach is a “seemingly complicated method” of determining punishment after a federal criminal conviction.   Pereida v. Wilkinson, 141 S. Ct. 754, 771 (2021) (J. Breyer, joined by J. Sotomayor and J. Kagan, dissenting).

Nevertheless, federal criminal defense lawyers; those accused of federal crimes in Texas as well as their loved ones; AUSAs; along with law enforcement, and all those interested in criminal justice must face the reality of this “seemingly complicated method” for calculating how long someone will be sentenced to incarceration in a federal facility.

SCOTUS, the Armed Career Criminal Act, and the Categorial Approach in Sentencing

SCOTUS is responsible for this mandated sentencing enhancement.  Two cases serve as introduction:   Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143, 109 L. Ed. 2d 607 (1990) and Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005). It was over thirty years ago that the “categorial approach” debuted in Taylor, with the “modified categorial approach” coming into federal sentencing procedures over a decade later with the Shepard decision in 2005.

At first, the categorial approach was focused upon convictions based upon a specific federal criminal statute.  Both Taylor and Shepard deal with the Armed Career Criminal Act (“ACCA”)(18 U.S.C. § 924(e)). As explained in August 2022 by the Congressional Research Service:

The Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), requires imposition of a mandatory minimum 15-year term of imprisonment for recidivists convicted of prohibited possession of a firearm under 18 U.S.C. § 922(g), who have three prior state or federal convictions for violent felonies or serious drug offenses. Section 924(e) defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies as those (1) that have an element of threat, attempt, or use of physical force against another; (2) that involve burglary, arson, or extortion; (3) that constitute crime similar to burglary, arson, or extortion; or (4) under the section’s “residual clause.” The U.S. Sentencing Commission recommended that Congress consider clarifying the statutory definitions of the violent felony categories. Thereafter in Johnson v. United States, the Supreme Court declared the residual clause (predicated on the “risk of violence”) unconstitutionally vague and thus effectively void. The residual clause aside, constitutional challenges to the application of § 924(e) have been largely unsuccessful, regardless of whether they were based on arguments of cruel and unusual punishment, double jeopardy, due process, grand jury indictment or jury trial rights, the right to bear arms, or limits on Congress’s legislative authority.

Read: Doyle, Charles. Armed Career Criminal Act (18 USC 924 (e)): An Overview. Congressional Research Service, 2022.

Congress, in the passage of the ACCA, has created a minimum 15-year sentence that must be faced by defendants (1) convicted of the federal firearms law (18 U.S.C. § 922(g), and (2) who are shown to have at least (a) three prior felony convictions for (b) a “violent felony” and/or a “serious drug offense.”

Taylor and Shepard, as court opinions do, explained how the ACCA was to be applied after its passage by Congress.  The two SCOTUS opinions gave us Taylor’s “categorical approach” and Shepard’s “modified categorical approach” as guidance on when a prior conviction qualifies as either a “violent felony” or a “serious drug offense” under the ACCA when sentencing is being imposed.

Expansion of the ACCA Approach Into Other Sentencing Determinations

Over time, case precedent has taken these two SCOTUS opinions as they applied to the ACCA and extended their logic to other criminal statutes for purposes of sentencing.

Both the (1) categorical approach and the (2) modified categorical approach have been applied in federal sentencing and approved upon appeal in lots of other situations.  It happens when the sentencing court needs to decide if an offense is a predicate offense when calculating a sentence.

For instance, it is used in federal immigration cases when considering “aggravated felony” in deportation under 8 U.S.C. §1101(a)(43).  See, Pereida; also read: How to Use the Categorial Approach Now, written by Kathy Brady and published by the Immigrant Legal Resource Center in 2021.

It also happens when a sentencing court needs to decide if an offense is a “crime of violence” or a “controlled substance offense” when assessing a career offender enhancement under the United States Sentencing Guidelines (USSG §4B1.1).

• For more on career offender convictions and sentencing, read our earlier discussion in When Someone Becomes A “Career Offender” Under Federal Law.

Over time, SCOTUS has instructed that the categorical approach is to be used for definitions of:

• “violent felony” in 18 U.S.C. § 924(e)(2);
• “misdemeanor crime of domestic violence” in 18 U.S.C. § 921(a)(33)(A);
• “crime of violence” in 18 U.S.C. § 924(c)(3); and
• “crime of violence” in 18 U.S.C. § 16.

See, Taylor 495 U.S. at 600; United States v. Castleman, 572 U.S. 157, 168 (2014); United States v. Davis, 139 S. Ct. 2319, 2327–31 (2019); and Sessions v. Dimaya, 138 S. Ct. 1204, 1211 (2018).

Federal appeals courts have followed SCOTUS’s example and also opined that the categorical approach should be used in some instances to decide if there should be an enhanced sentence for federal crimes involving sexual offenses, drug felonies, or violence.  For details, with significant precedent references, see the United States Sentencing Commission Primer August 2023, Sections III.A.5.-A.7.

The Categorial Approach in 2024 and the United States Sentencing Guidelines

Essentially, the categorial approach is used to find out if a past or present conviction comes within a type of offense category that will mandate an enhanced punishment in federal court.  It is not propounded in the United States Sentencing Guidelines (USSG), although it is found there.  It originates with SCOTUS precedent.

It does not look at the facts of the defendant’s conduct which corresponds to the offense.  Instead, it looks to the elements of the criminal statute to figure out the nature of the conviction.

The Three Steps to Follow

The basic steps to follow in its application are provided by the United States Sentencing Commission (USSC):

1. Identify the statutory wording under consideration in the federal case, such as the phrase “violent felony” in the ACCA or “crime of violence” within the USSG (g., Career Offender in USSG §4B1.2).

2. Reference the statute upon which the past conviction is based, and establish the conviction’s offense by either: (a) the categorial approach, which is examination of the conviction statute by itself; or (b) the modified categorial approach which uses limited documents alongside the conviction statute.

3. Analyze the past offense to determine if it meets the predicate category of offense for the purpose of sentencing enhancement (or establishing criminal liability). Here, you find out if the conviction offense, using a generic, contemporary definition, meet the elements of the listed offense in the statute.  Generic definitions can be found in the USSG; case precedent; and the Model Penal Code.

The Statute and the Categorial Approach

The judgment provides guidance here, explains the USSC.  If the judgment cites only the statute of conviction, then you go to the books and examine that statute’s language.

Things get more complex if the statute has options, like the statute referenced in Descamps, where the crime could be burglary of either a building or a car.    Descamps v. US, 570 U.S. 254, 133 S. Ct. 2276, 2281, 186 L. Ed. 2d 438 (2013).

The Modified Categorial Approach

Outside documents come into play under the modified categorial approach.  From the USSC, it is “… a way to determine the elements of the offense when a particular statute lists elements in the alternative.”

What is an element?

Analogous to a recipe with its list of ingredients, a criminal statute will have various things that the prosecution has to support with admissible evidence to show the crime was committed by the defendant beyond a reasonable doubt.  These are called the elements of the crime:

“’Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the “prosecution must prove to sustain a conviction. At a trial, they are what the jury must find beyond a reasonable doubt to convict the defendant, see and at a plea hearing, they are what the defendant necessarily admits when he pleads guilty (citations omitted).”  Mathis v. US, 136 S. Ct. 2243, 2248, 579 U.S. 500, 195 L. Ed. 2d 604 (2016).

If the statute has different elements and can be divided, then use the modified categorial approach.  Here, documents can be referenced in addition to the statute itself.  You want to answer the question of what section of the statute applies to the defendant’s past guilty plea or conviction.  (Was it a burglary of a car or a house?)

From SCOTUS: “[t]hat kind of statute sets out one or more elements of the offense in the alternative – for example, stating that burglary involves entry into a building or an automobile…. If one alternative matches an element in the generic offense, but the other does not, the modified categorical approach permits sentencing courts to consult a limited class of documents….to determine which alternative formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2281.

Is the statute divisible and needing the modified categorial approach?

If you are not sure if the statute is divisible with different elements, then check to see if there are different penalties for different actions within it.  If so, it is divisible.

Another way to check:  look at the jury instructions in the matter, and look at past court decisions interpreting that statute.  Has a past opinion already made this determination?

Documents to be Used in the Modified Categorial Approach

Additional documents are used in order to figure out which part of the statute applies to the conviction.  For instance, in the Descamps’ burglary statute example, was it entry into a building or into an automobile?  The underlying conduct of the defendant is irrelevant and is not to be considered.  You cannot go and look at old witness statements, for instance.

Pursuant to Shepard, 544 U.S. at 16, the following documents can be referenced:

• Jury instructions
• Written plea agreement
• Transcript of plea colloquy
• Charging documents
• Comparable judicial record.

Next Step: Analysis of the Conviction and the Definition

The next step is to determine if the elements of the conviction statute meet (or “match”) the federal definition.  Courts will assume that the defendant committed the least culpable conduct defined in the criminal statute needed to support the conviction.

From the USSC:

this analysis is limited to comparing the applicable definition to only what a jury necessarily found (or needed to find in the case of a plea) in reaching the prior conviction or to which a defendant necessarily pleaded guilty (i.e., the least culpable act that violates the statute of conviction). As a result, the court may not consider the defendant’s actual underlying conduct. Further, even when the court is permitted to review Shepard documents under the modified categorical approach, the focus of the court’s inquiry remains only on determining the statute of conviction and not the underlying conduct.

This can be a win for the defense.  An example is provided by USSC, citing US v. Jones, 914 F.3d 893, 903 (4th Cir. 2019)(discussing State v. Burton, 356 S.C. 259 (2003)) where the federal definition of force did not jive with the earlier conviction offense language:

…the Fourth Circuit held that a South Carolina statute prohibiting assaulting, beating, or wounding a police officer did not meet the ACCA’s force clause because in a prior South Carolina case, a defendant was convicted of that offense for “spitting blood on an officer’s boot,” providing a realistic probability that the offense could be premised upon rude or angry contact rather than violent contact.

Sentencing Complexities in Federal Criminal Defense

When facing a federal prosecution, sentencing is always more complicated here in Texas than if the defendant were moving through the state judicial system.  For one thing, federal sentencing will comport with the United States Sentencing Guidelines.  It will also demand compliance with established court precedent mandating things like the categorial approach in certain types of prosecutions.

Understanding these complexities is vital for federal criminal defense attorneys not only in plea negotiations but during the course of any trial and subsequent sentencing.

Categorial Approach

For more detailed instructions and cited discussion on the categorical approach in sentencing, read the United States Sentencing Commission’s August 2023 Primer, published with the following caveat:

This primer provides a general overview of selected statutes, sentencing guidelines, and case law involving application of the categorical approach. Although this primer identifies some of the key cases and concepts related to the categorical approach, it is not a comprehensive compilation of authority nor intended to be a substitute for independent research and analysis of primary sources.

Sentencing Guidelines and the Sentencing Tables

To learn more about federal sentencing, including examples of how the Sentencing Table works in the United States Sentencing Guidelines in its calculation of the impact of offense levels and criminal history, see our earlier discussions (including table examples) in:

• Money Laundering and Federal Sentencing Guidelines;
• Federal Sentencing Guidelines On Federal Child Pornography Cases;
• Federal Crimes and Sentencing Guidelines: Health Care Fraud;
• Methamphetamine Trafficking and Federal Sentencing; and
• Relevant Conduct In The Federal Sentencing Guidelines: Acquittals And Uncharged Conduct.

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For more information, check out our web resources, read Michael Lowe’s Case Results, and read his in-depth article, “Plea Bargaining and Making Deals in Federal Felony Cases: Criminal Defense Overview.”