The categorical approach was first announced by the United States Supreme Court in a case called Taylor v. United States in 1990, however, since many courts were misapplying the categorical approach the Supreme Court clarified in Mathis v. United States. The categorical approach basically involves finding the minimum conduct that is criminalized under a statute and seeing if that minimum conduct makes a person eligible for career offender/armed career offender classification or makes an alien removable from the United States.
I did not make the above video, but it explains the categorical approach in the context of immigration. Even if you do not have an immigration case the application of the categorical approach is the same.
The hardest thing for most people to understand about the categorical approach is that your actual conduct, that is the conduct of conviction, or what the Supreme Court has referred to as the “brute facts” of the case simply do not matter. I am clarifying this before you read the rest of this article because I am asked so many times, and it is hard for people to get the fact that under the categorical approach your actual conduct is completely irrelevant and does not matter. For example, as will be explained below, if you think you have a conviction for distributing cocaine because your indictment specifically states cocaine and your plea agreement and judgement state cocaine, you may not have actually been convicted of cocaine. If the crime you committed was for “controlled substance” there may not be a judicially recognisable way to adequately prove the conviction was actually for cocaine because you were not required to admit cocaine, nor was a jury required to unanimously find cocaine. You are just going to have to trust on this one while you are learning about the categorical approach. The conduct of conviction does not matter under the categorical approach. The only thing that matters is the elements of the crime and the minimum way that those elements can be violated. If the minimum conduct can not predicate an enhancement or removability in the context of immigration then the crime is categorically overly broad.
To be clear under the categorical approach, a person’s actual conduct is completely irrelevant. Career/armed career offender predicates and immigration consequences are based on convictions. The only way a court can know for certain what a person was convicted of is by looking at the minimum way that the crime could be convicted, that is what a jury needs to unanimously decide, or what a defendant must necessarily admit when he pleads guilty. This may sound counterintuitive, but under the law it makes sense.
So to begin you need to understand what the difference is between the means of committing a crime and an element of the crime.
- An element is something that all twelve jurors must find beyond any reasonable doubt.
- A means is a way that an element can be committed, and does not require jury unanimity.
Say, for example, a person is accused of illegally possessing a firearm, and the different types of firearms are pistol, rifle, and shotgun.
The element is “firearm” and the means are “pistol, rifle, and shotgun”. All 12 jurors would have to agree that a defendant had a “firearm” to convict, but that would not have to unanimously decide what type of fire are that the person had. For example, 6 jurors could say that a person had a rifle and 6 jurors could say that a person had a shotgun.
So just for the sake of argument let’s say that you could become a career offender for possessing a pistol or a rifle, but not a shotgun. If you went to trial and the government produced a pistol and showed pictures and videos of you possessing the pistol and the pistol to trial, and even if the jury was instructed that they all had to find a pistol to convict, you would not be a career offender because your conviction could have been based on a shotgun. Again, as shown above, the categorical approach ignores the actual conduct and only focuses on the minimum conduct required to convict.
The categorical approach is a powerful weapon in the hands of a competent attorney or prose litigant to beat the career offender/armed career enhancements as well as beat the removability of predicate immigration crimes.
To further understand the categorical approach we need to understand the truly landmark case of MATHIS v. UNITED STATES No. 15–6092 in the Supreme Court (I’m including a link if you want to read the actual case here). In Mathis, the defendant was charged as an armed career offender. One of his predicate Iowa burglary convictions was being used to make him an armed career offender and make him serve a mandatory 15-year federal sentence. Under the categorical approach, the Iowa burglary must match the generic federal definition of burglary.
Under the generic definition of burglary, a person must burgle a “building or other structure”. Under the Iowa law, a person can be convicted if they burgled “any building, structure, [or] land, water, or air vehicle.” The location element under federal law is “building or other structure” and the location element under Iowa is “any building, structure, [or] land, water, or air vehicle”. This means that the Iowa law is broader than the federal law. A simple way to look at it is below.
building structure (federal)
building structure land water air vehicle (state)
You can literally stack the two on top of each other, and as shown above, the state law is broader than the federal law.
So the last question is how does one know what are means and what are elements?
Sometimes the courts themselves will answer the question if you know how to research state law, but in some cases, you need to pull conviction records to see things like if an indictment has multiple ways of committing a crime. For example, if an indictment charged a person in one count with burgling a building structure or land water or air vehicle this is a very good indication that each is only a means of committing the crime because it is not permissible to put two crimes in one count of an indictment. However, if a prosecutor does this by mistake a judge can correct the mistake by instructing the jury that they would need to unanimously decide on one alternative.
So in order to be sure sometimes you need to pull jury instructions, not necessarily your own, but and jury instruction to show that the crime does not require that a jury be unanimous as to how a crime is committed.
The categorical approach is very complicated, don’t get frustrated if you do not understand it in a few minutes. It took me years to fully grasp the proper application and power of the categorical approach. Keep in mind a lot of lawyers and judges do not understand how to properly apply the categorical approach, but a proper categorical argument is basically unbeatable and can remove career offender enhancements and immigration consequences of criminal convictions.
If you have any questions contact me by using the contact link above in the header, but if you want me to look at a conviction categorically make sure that you have all of the conviction paperwork. If it was a plead case, that means the indictment, plea agreement, and judgment and in the case of a jury trial, I would need the jury instruction as well.
Also, keep in mind that you do not have to show that the law is overly broad in your case if you can find any case that applied the law in an overly broad manner you can beat career/armed career predicates and you can beat immigration consequences of a conviction.