Ok… If you have not read my post about the categorical approach, click the news link on top of the site and read about the categorical approach first, as you need to understand the categorical approach first. The modified categorical approach simply tells courts when it is appropriate to apply the categorical approach.
The first thing you need to understand is the difference between an indivisible crime and a divisible crime.
So an indivisible crime is a crime that may have different ways of violating it, for example, if you read my post about the categorical approach and the case of Mathis, the crime at issue there was an Iowa burglary statute that had one crime of burglary with different means of committing of “any building, structure, [or] land, water, or air vehicle”. This is one crime with different ways of committing it, or it is indivisible.
A divisible crime is a crime that has multiple other crimes inside of it. For example, if a crime was listed in separable parts and each part carried a different penalty this crime would be divisible and look something like this:
Burglary
- Building (one year)
- Structure (two years)
- land, water, or air vehicle (three years) (the amount of time can be an element of an offense making a crime divisible)
This would be a divisible statute and a judge or sentencing would examine your prior crime documents (known as Shepard documents) to see exactly which section a person was convicted of. It is worth noting that the third option land, water, or air vehicle is not further divisible. So each of the three options are a means of committing Burglary(3). If you were found to have committed Burglary(3) and say one of the options like land vehicle was not a predicate offense for career offender or immigration consequences it is assumed that you only violated Burglary(3) in the least was, and no matter how you violated the statute, the statute is categorically overly broad.
And again we are back to another Supreme Court case. This time the case of Descamps v. United States, No. 11–9540 (A link to this case is here). Descamps laid out the proper application of the Modified Categorical approach to divisible statutes, but once you apply the modified categorical approach to find out which of the aternatives a predicate is based on the regular categorical approach applies that that particular branch of the conviction. It is worth mentioning that the “Sehpaed documents” mentioned above came from another Supreme Court case, Shepard v. United States, No. 03–9168 ( A link to this case is here). Shepard lays out what documents it is permissible for a court to examine to decide what version of a predicate a person was convicted of. It basically holds that you are only responsible for the crime that you admitted or that a jury unanimously decided that you committed. For example allegations in the judgement presenetencing report or in the judgement that were not proven beyond any reasonable doubt.
These are complex legal issues that many attotneys and judges do not understand, but are powerful legal tools to beat predicate convictions! If you ahve any questions contact me using the contact link in the header!
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