Judge Owen Calls for En Banc Consideration of Fifth Circuit's Understanding of Taylor/Shepard Categorical Approach

United States v. Gonzalez-Terrazas, No. 07-50375 (5th Cir. May 22, 2008) (Garza, Stewart; Owen, concurring)

"Wait a minute," you're asking, "didn't the Fifth Circuit already decide this case a few months ago?" Yes, it did. But the court granted the Government's petition for panel rehearing, withdrew the prior opinion, and substituted a new one in its stead. The new opinion is largely the same, except that it omits the discussion of one sub-issue. Also, Judge Owen writes a separate concurring opinion urging the court to reconsider en banc one particular aspect of the Taylor/Shepard categorical approach.

To recap, the issue in the case was whether Gonzalez's prior California burglary conviction triggered a 16-level crime-of-violence enhancement under the illegal reentry guideline. As it did the first time around, the court held that the prior conviction did not so qualify, under the Fifth Circuit's decision in United States v. Ortega-Gonzaga. California's burglary statute is broader than generic burglary because it does not require that the entry or remaining-in be unlawful. It did not matter that a state charging document alleged that Gonzalez entered a house "willfully and unlawfully." The Taylor/Shepard modified categorical approach permits a court look to the charging papers and so forth only to identify which statutory subsection or which disjunctive elements the conviction satisfied. In the case of the California statute, there is no separate subsection or disjunctive element pertaining to "unlawful" entry, so a court cannot use the modified categorical approach to pare down the indivisible "entry" element of the offense.

The original opinion also held that, even if the court could go beyond the elements of the offense, the Government would have still failed to carry its burden of showing that the enhancement applied. The only document the Government offered, apart from the charging instrument, was an abstract of judgement from a subsequent revocation proceeding that mentioned the earlier burglary conviction. The court stated that, because California abstracts of judgment are of questionable reliability, the abstract may be sufficient to establish the fact of the burglary conviction, but not the specific facts underlying that conviction or that Gonzalez pleaded guilty to any particular charging instrument. The new opinion omits this discussion.

Judge Owen concurred, agreeing that this analysis is compelled by Ortega-Gonzaga. But she urged the court to reconsider this case en banc because, in her view, Ortega-Gonzaga "is at odds with Congressional intent in establishing the Sentencing Guidelines and the intent of the Guidelines with regard to what courts have termed 'enumerated offenses.'"

The case before us presents an important question: in determining if a prior conviction was for an enumerated “generic” offense within the meaning of the Guidelines, may we examine the underlying conviction to determine if it contained all the elements of the generic offense even though the statute of conviction did not? We have often examined records of a prior conviction when the statute of conviction could be violated in ways that constituted a generic enumerated offense and in ways that did not to determine if a defendant was convicted of a generic offense. However, it was not until Ortega-Gonzaga that we considered whether a prior conviction could be for a generic offense even if the statute of conviction was lacking one or more elements of the generic offense. I respectfully submit that if a defendant was charged with and a jury found all elements of a generic offense, or the defendant was charged with and pled guilty to such an offense, there has been a prior “conviction for” the generic offense even if the statute under which the defendant was prosecuted lacks all the requisite elements.

Judge Owen agreed that the Sentencing Commission intended for Taylor's generic burglary definition to control the meaning of "burglary of a dwelling" in guideline §2L1.2 (with the added "dwelling" qualification, of course). But she also pointed to Congress' statement

in the statute creating the Sentencing Commission that the intent of the Guidelines was, among other things, to “avoid[] unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct.” I submit that if a defendant was charged with and a jury found all the elements of generic burglary of a dwelling, or if a defendant so charged admitted to all elements of burglary of a dwelling, that defendant has a prior “conviction for” burglary of a dwelling within the meaning of U.S.S.G. § 2L1.2(b)(1)(A), even though the statute under which the defendant was prosecuted does not have all the elements of generic burglary of a building. Defendants charged with the elements of generic burglary and who have either been found guilty or who have pled guilty to the elements of generic burglary are defendants “with similar records who have been found guilty of similar criminal conduct” regardless of whether the statutes under which they have been convicted have all the elements of generic burglary. In other words, a “conviction for” an enumerated offense can be narrower than the statute of conviction, and the purpose of the Sentencing Guidelines is to treat “conviction[s] for” an enumerated offense the same. In Ortega-Gonzaga, our court refused, in an alternative ruling, to look beyond the underlying statute of conviction to determine whether the actual conviction had been for the generic offense of burglary of a dwelling. In doing so, our court did not give effect to the statutory purpose of the Guidelines or the meaning of the Guidelines themselves.

That's the approach the Seventh and Ninth Circuits take, as Judge Owen notes. She also argues that neither Taylor nor Shepard clearly resolve the issue.

I think Judge Owen is wrong, as the statute she cites doesn't really address this issue, and the approach she advocates runs contrary to Taylor's and Shepard's concerns about the Sixth Amendment doubts such an approach would raise. But I suppose the ball is in the Government's court now, so we'll have to wait and see what happens.