Assessing Divisibility in the Armed Career Criminal Act

When courts analyze whether a defendant's prior conviction qualifies as a "violent felony" under the Armed Career Criminal Act's "residual clause," they use a "categorical approach," looking only to the statutory language of the prior offense, rather than the facts disclosed by the record of conviction. But when a defendant is convicted under a "divisible" statute, which encompasses a broader range of conduct, only some of which would qualify as a predicate offense, courts may employ the "modified categorical approach." This approach allows courts to view additional documents to determine whether the jury convicted the defendant of the Armed Career Criminal Act-qualifying part of the statute. This Note identifies a split among the circuit courts regarding when a statute is divisible. Under the "formal method," a statute is divisible only when its text specifies qualifying and nonqualifying categories of conduct. By contrast, courts that employ the "functional method" divide a statute if, regardless of the statute's text, it is possible to violate the statute in a way that amounts to a "violent felony" and in a way that does not amount to a "violent felony." This Note contends that the text-based "formal method" is more consistent with the Supreme Court's Armed Career Criminal Act jurisprudence, the Sixth Amendment, and the rule of lenity. Finally, it argues that the "formal method" gives Congress the strongest incentive to revise the vague and confusing Armed Career Criminal Act.IntroductionMore than two decades after its passage, the Armed Career Criminal Act ("ACCA") remains a nagging source of confusion and frustration. The statute mandates a fifteen-year minimum sentence for a felon who is convicted of possessing a firearm and who has three or more previous convictions for a "violent felony"1 or "crime of violence."2 It is used to increase the sentences of hundreds of criminal defendants per year.3 In addition to four specifically enumerated crimes-burglary, arson, extortion, and the use of explosives-the ACCA includes as a "violent felony" any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another."4 This provision is known as the "residual clause."This broadly worded "residual clause" has attracted substantial attention from the Supreme Court, which has labored to interpret the ACCA five times in as many years and has produced an inconsistent patchwork of decisions. 5 The Justices themselves have described the ACCA's residual clause as "nearly impossible to apply consistently."6 This difficulty has caused numerous splits among the circuit courts, "the resolution of which could occupy [the Supreme Court] for years."7 The Court's own efforts to resolve the splits have fared no better, having been criticized as "piecemeal, suspenseful, [and] Scrabble-like."8 Nor has Congress escaped the critical eye. One Justice labeled the ACCA a "drafting failure,"9 and at least two Justices have urged Congress to rewrite the statute from square one.10Much of the difficulty that the courts have faced stems from their attempts to navigate the two approaches to applying the ACCA's residual clause: the "categorical approach" and the "modified categorical approach." When a court considers an ACCA residual-clause case, it typically employs the categorical approach, in which it looks only at the fact that a defendant was convicted of a particular offense and not at how the defendant actually committed the crime.11 The court then asks whether the conduct encompassed by the elements of the offense presents a serious potential risk of physical injury to another.12 But when the statute the defendant violated includes multiple categories of conduct, some of which could amount to a crime of violence and some of which could not, the court may use the "modified categorical approach." Under this approach, the court may consult a limited set of documents to determine whether the jury convicted the defendant of (or whether the defendant pleaded to) violating the part of the statute that would constitute a "violent felony. …