PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-2229
SAYED GAD OMARGHARIB,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
-------------------------
CAPITAL AREA IMMIGRANTS' RIGHTS COALITION; IMMIGRANT AND
REFUGEE APPELLATE CENTER, LLC,
Amici Supporting Petitioner.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 16, 2014 Decided: December 23, 2014
Before NIEMEYER, WYNN, and FLOYD, Circuit Judges.
Petition for review granted; reversed and remanded with
instructions by published opinion. Judge Floyd wrote the
opinion, in which Judge Niemeyer and Judge Wynn joined. Judge
Niemeyer wrote a separate concurring opinion.
ARGUED: Steffanie Jones Lewis, INTERNATIONAL BUSINESS LAW FIRM,
PC, Washington, D.C., for Petitioner. Aimee J. Carmichael,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent. ON BRIEF: Stuart F. Delery, Assistant Attorney
General, Civil Division, John S. Hogan, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Heidi
Altman, Morgan Macdonald, CAPITAL AREA IMMIGRANTS' RIGHTS
COALITION, Washington, D.C.; Ben Winograd, IMMIGRANT & REFUGEE
APPELLATE CENTER, LLC, Alexandria, Virginia, for Amici
Supporting Petitioner.
2
FLOYD, Circuit Judge:
In this appeal, we consider whether Sayed Gad Omargharib’s
conviction under Virginia’s grand larceny statute, Va. Code Ann.
§ 18.2-95, constitutes an “aggravated felony” under the
Immigration and Nationality Act (INA) § 101, 8 U.S.C.
§ 1101(a)(43). The Board of Immigration Appeals (BIA) answered
this question in the affirmative using the so-called modified
categorical approach, as clarified by Descamps v. United States,
133 S. Ct. 2276 (2013). Under Descamps, the modified
categorical approach applies only if Virginia’s definition of
“larceny” is “divisible” — that is, if it lists potential
offense elements in the alternative, thus creating multiple
versions of the crime. The BIA concluded that Virginia larceny
is divisible because Virginia state courts have defined it to
include either theft or fraud.
Consistent with our prior precedent on this issue, however,
we conclude that mere use of the disjunctive “or” in the
definition of a crime does not automatically render it
divisible. We further hold that, under our recent decisions
construing Descamps, the Virginia crime of larceny is
indivisible as a matter of law. As such, we agree with
Omargharib that the modified categorical approach has no role to
play in this case. Instead, the categorical approach applies,
and under that approach Omargharib’s grand larceny conviction
3
does not constitute an aggravated felony under the INA. We
therefore grant Omargharib’s petition for review, reverse the
BIA’s ruling, and remand with instructions to vacate the order
of removal.
I.
Omargharib, an Egyptian native and citizen, entered the
United States in 1985 and became a lawful permanent resident in
1990. In 2011, he was convicted in Virginia state court of
grand larceny under Va. Code Ann. § 18.2-95 for “tak[ing],
steal[ing], and carry[ing] away” two pool cues valued in excess
of $200 following a dispute with his opponent in a local pool
league. J.A. 452. Omargharib received a suspended sentence of
twelve months. 1
Following his conviction, the Department of Homeland
Security sought Omargharib’s removal, contending that his
conviction constituted an “aggravated felony” under the INA —
namely, “a theft offense . . . for which the term of
imprisonment [is] at least one year.” 8 U.S.C.
§ 1101(a)(43)(G); see 8 U.S.C. § 1227(a)(2)(A)(iii) (rendering
deportable an alien who is convicted of an aggravated felony).
1
Omargharib later filed a motion to reconsider his sentence
(which the trial court denied), but did not appeal his
conviction. He also filed habeas motions in both state and
federal court, all of which were likewise denied.
4
Before an immigration judge (IJ), Omargharib denied that his
conviction made him removable. Omargharib argued that, under
the categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990), the IJ could only compare the elements of
larceny under Virginia law with the generic elements of a “theft
offense” in the INA and determine whether they match. According
to Omargharib, the elements do not match because Virginia law
broadly defines larceny to include both theft and fraud, whereas
the INA’s aggravated felony statute distinguishes between theft
and fraud. Compare 8 U.S.C. § 1101(a)(43)(G) (theft) with id.
§ 1101(a)(43)(M)(i) (fraud). 2
Under the categorical approach, it is thus possible that
Omargharib’s grand larceny conviction rested on facts amounting
to fraud, not theft. It is undisputed that Omargharib’s
conviction does not constitute a fraud offense under the INA. 3
And under the categorical approach, the IJ was not free to
review the record to determine whether Omargharib’s grand
larceny conviction was based on theft, not fraud.
2
The INA’s theft offense is not tied to any dollar
threshold – a theft of even one penny will suffice as long as
the term of imprisonment is at least one year. In contrast, the
INA’s fraud offense only applies if the loss to the victim
exceeds $10,000.
3
The record reflects that the two pool cues were together
valued between $525 and $800 – well below the INA’s $10,000
fraud threshold. Accordingly, the government does not argue
that Omargharib’s conviction constitutes a fraud offense under
the INA.
5
The IJ agreed that Virginia’s definition of larceny is
broader than the INA’s corresponding “theft offense” crime and
thus that the two crimes are not a categorical match. 4 But the
IJ proceeded to employ the modified categorical approach, which
the IJ held permits consideration of the underlying facts
surrounding Omargharib’s conviction. Applying that approach,
the IJ concluded that Omargharib’s larceny conviction rested on
facts amounting to theft, not fraud. As such, the IJ held that
Omargharib’s conviction constituted a theft offense under the
INA, making Omargharib removable and ineligible for all forms of
discretionary relief. 5
Omargharib appealed the IJ’s decision to the BIA. On
September 6, 2013, the BIA dismissed Omargharib’s appeal and
affirmed the IJ’s decision in all respects. Like the IJ, the
BIA concluded that the modified categorical approach applied
because Virginia law defines larceny in the disjunctive to
4
At the hearing, the IJ first issued an oral decision
devoid of any legal analysis. Omargharib appealed the oral
decision to the BIA, which remanded back to the IJ to explain
his reasoning. The IJ issued a written order on December 26,
2012.
5
If Omargharib’s state law conviction had been classified
as a crime under the INA other than an aggravated felony he
could have sought certain discretionary relief from removal,
such as asylum or cancellation of removal. See Moncrieffe v.
Holder, 133 S. Ct. 1678, 1682 (2013) (citing 8 U.S.C. §§ 1158,
1229b). Because the IJ found he committed an aggravated felony,
however, he was ineligible for these forms of discretionary
relief. See id.
6
include “wrongful or fraudulent” takings. J.A. 3. Omargharib
then timely petitioned this Court for review. We have
jurisdiction pursuant to 8 U.S.C. § 1252.
II.
The central issue before us is whether Omargharib’s 2011
grand larceny conviction in Virginia constitutes a “theft
offense” as defined by 8 U.S.C. § 1101(a)(43)(G), and thus an
aggravated felony under the INA that is grounds for removal.
We review the BIA’s determination on this issue de novo.
Karimi v. Holder, 715 F.3d 561, 566 (4th Cir. 2013). “Although
we generally defer to the BIA's interpretations of the INA,
where, as here, the BIA construes statutes [and state law] over
which it has no particular expertise, its interpretations are
not entitled to deference.” Id.; see also Matter of Chairez-
Castrejon, 26 I. & N. Dec. 349, 353 (BIA 2014) (recognizing that
the BIA is bound by this Court’s “interpretation of divisibility
under Descamps”). The government has the burden of proving that
Omargharib committed an aggravated felony by clear and
convincing evidence. Karimi, 715 F.3d at 566.
To qualify as an aggravated felony, Omargharib’s conviction
must have been “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment
[is] at least one year.” 8 U.S.C. § 1101(a)(43)(G). Because we
7
conclude that his crime of conviction did not constitute a
“theft offense” under the INA, we reverse without reaching
Omargharib’s alternative argument that his term of imprisonment
was for less than one year.
A.
In order to determine whether a state law conviction
qualifies as an aggravated felony for removal purposes, we use
the categorical approach set forth in Taylor v. United States,
495 U.S. 575 (1990), and recently clarified in Descamps. See
United States v. Aparicio-Soria, 740 F.3d 152, 160-61 (4th Cir.
2014) (en banc). 6 Under that approach, we consider only the
elements of the statute of conviction rather than the
defendant’s conduct underlying the offense. Descamps, 133 S.
Ct. at 2285 (stating that the categorical approach’s “central
feature” is “a focus on the elements, rather than the facts, of
a crime”). If the state offense has the same elements as the
generic INA crime, then the prior conviction constitutes an
6
Although Taylor discussed divisibility in the context of a
sentence enhancement under the Armed Career Criminal Act (ACCA),
we have held that it applies equally in the immigration context
to determine whether an alien is removable under the INA as a
result of a prior conviction. See Karimi, 715 F.3d at 567 n.6.
Because Descamps only clarified Taylor’s analysis, we hold it
also applies here (as several other Circuits have done in the
immigration context). Accord Avendano v. Holder, 770 F.3d 731,
734 (8th Cir. 2014); Aguilar-Turcios v. Holder, 740 F.3d 1294,
1299-1300 (9th Cir. 2014).
8
aggravated felony. See id., 133 S. Ct. at 2283. But, if the
state law crime “sweeps more broadly” and criminalizes more
conduct than the generic federal crime, the prior conviction
cannot count as an aggravated felony. Id. This is true “even
if the defendant actually committed the offense in its generic
form.” Id. 7
Like the BIA, we conclude that the Virginia crime of
larceny does not categorically match the INA’s theft offense
crime because Virginia larceny punishes a broader range of
conduct than that federal offense. Specifically, Virginia law
defines larceny to include both fraud and theft crimes. 8 See
7
The elements-based categorical approach thus avoids the
“daunting . . . practical difficulties and potential unfairness”
of a facts-based approach. Id. at 2289. Among other problems,
a facts-based approach would require sentencing courts “to
expend resources examining (often aged) documents for evidence
that a defendant admitted in a plea colloquy, or a prosecutor
showed at trial, facts that, although unnecessary to the crime
of conviction, satisfy an element of the relevant generic
offense. The meaning of those documents will often be uncertain.
And the statements of fact in them may be downright wrong. A
defendant, after all, often has little incentive to contest
facts that are not elements of the charged offense . . . .”).
Id. at 2289.
8
Although Omargharib was convicted of grand larceny under
Va. Code Ann. § 18.2-95, that statute does not define the
elements of larceny in Virginia. Rather, it merely categorizes
larceny of more than $200 as “grand larceny” and defines the
punishment for that crime. Id. The statute thus incorporates
Virginia’s common-law recitation of the elements for larceny.
And although Descamps addressed a state crime defined by
statute, we have since held that the Descamps analysis applies
to state crimes that, as here, are defined by common law rather
(Continued)
9
Britt v. Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (Keenan,
J.) (defining larceny as “the wrongful or fraudulent taking of
another’s property without his permission and with the intent to
permanently deprive the owner of that property” (emphasis
added)); see also Stokes v. Commonwealth, 641 S.E.2d 780, 782,
784 (Va. Ct. App. 2007) (upholding a conviction for grand
larceny when the defendant was indicted for defrauding a bank).
Indeed, the Supreme Court of Virginia has repeatedly sustained
larceny convictions when the property at issue was obtained
through fraudulently obtained consent. 9 See, e.g., Skeeter v.
Commonwealth, 232 S.E.2d 756, 758 (Va. 1977); Bourgeois v.
Commonwealth, 227 S.E.2d 714, 717 (Va. 1976).
By contrast, the INA expressly distinguishes between theft
and fraud offenses. Unlike the INA’s theft offense, which is
not tied to any dollar threshold, the INA’s fraud offense only
applies if the loss to the victim exceeds $10,000. Compare 8
than by statute. United States v. Hemingway, 734 F.3d 323, 331–
33 (4th Cir. 2013).
9
As these cases demonstrate, a “wrongful” taking means a
taking without the victim’s consent; a “fraudulent” taking means
a taking with the victim’s consent that has been obtained
fraudulently. As set forth below, both wrongful and fraudulent
takings satisfy the “without consent” element of larceny under
Virginia law. In contrast, under the generic federal definition
of “theft,” fraudulent takings do not constitute takings
“without consent.” See Soliman v. Gonzales, 419 F.3d 276, 282-
83 (4th Cir. 2005). The “without consent” element under
Virginia law is thus significantly broader than the federal
“without consent” element.
10
U.S.C. § 1101(a)(43)(G) (theft) with id. § 1101(a)(43)(M)(i)
(fraud). Consistent with this distinction, we have previously
held that a conviction for credit card fraud for less than
$10,000 under Virginia law does not amount to a “theft offense”
or “fraud offense” for purposes of the INA. Soliman, 419 F.3d
at 282-83 (noting that any other result would transform all
fraud offenses into theft offenses, thus rendering the $10,000
threshold for fraud offenses “superfluous”).
In short, Virginia law treats fraud and theft as the same
for larceny purposes, but the INA treats them differently. As
such, Virginia larceny “sweeps more broadly” than the INA’s
theft offense. Descamps, 133 S. Ct. at 2283. We therefore
conclude that Omargharib’s Virginia larceny conviction does not
constitute an aggravated felony for purposes of the INA under
the categorical approach.
B.
The government claims a different result is warranted under
the modified categorical approach. As Descamps recently
clarified, the modified categorical approach applies only if a
state crime consists of “multiple, alternative elements”
creating “several different crimes,” some of which would match
the generic federal offense and others that would not. 133 S.
Ct. at 2284-85. Under this approach, courts may look beyond the
11
statutory text and consult a limited set of documents in the
record – so-called Shepard documents 10 – to determine which crime
the defendant was convicted of committing. Id. at 2283-84. In
this way, the modified approach is a tool for implementing the
categorical approach. Id. at 2284.
According to the government, the BIA correctly applied the
modified categorical approach and so properly examined the
underlying facts of Omargharib’s conviction to determine that he
was convicted of theft, not fraud. 11 For the following reasons,
we disagree.
After Descamps, we may apply the modified categorical
approach only if the state crime at issue is divisible. Id. at
2283. A crime is divisible only if it is defined to include
“potential offense elements in the alternative,” thus rendering
“opaque which element played a part in the defendant's
conviction.” Id. Stated differently, crimes are divisible only
if they “set out elements in the alternative and thus create
10
These documents derive their name from the Supreme
Court’s decision in Shepard v. United States, 544 U.S. 13, 16
(2005). Relevant Shepard documents include the “charging
documents, plea agreements, transcripts of plea colloquies,
findings of fact and conclusions of law from a bench trial, and
jury instructions and verdict forms.” Johnson v. United States,
130 S. Ct. 1265, 1273 (2010).
11
Because we find that the modified categorical approach
does not apply, we need not address Omargharib’s alternative
argument that he would also prevail under that approach because
the Shepard documents purportedly do not demonstrate whether he
was convicted of a “theft offense.”
12
multiple versions of the crime.” 12 United States v. Montes-
Flores, 736 F.3d 357, 365 (4th Cir. 2013).
The government asserts that the Virginia common-law crime
of larceny is divisible because it purportedly lists the
elements of theft and fraud in the alternative. See Britt, 667
S.E.2d at 765 (defining “larceny” as a “wrongful or fraudulent
taking” (emphasis added)). In the government’s view, the use of
the word “or” creates two different versions of the crime of
larceny: one involving wrongful takings (theft), and one
involving fraudulent takings (fraud). In this view, the
Virginia larceny would be divisible under Descamps and so the
modified categorical approach would apply.
As we have previously held, however, use of the word “or”
in the definition of a crime does not automatically render the
crime divisible. See United States v. Royal, 731 F.3d 333, 341-
42 (4th Cir. 2013); see also Rendon v. Holder, 764 F.3d 1077,
1086-87 (9th Cir. 2014) (reasoning that when a state criminal
law “is written in the disjunctive . . . , that fact alone
cannot end the divisibility inquiry”). As these cases
recognize, a crime is divisible under Descamps only if it is
12
An indivisible crime, by contrast, contains the same
elements as the federal crime (or omits an element entirely),
but construes those elements expansively to criminalize a
“broader swath of conduct” than the relevant federal law.
Descamps, 133 S. Ct. at 2281.
13
defined to include multiple alternative elements (thus creating
multiple versions of a crime), as opposed to multiple
alternative means (of committing the same crime). Royal, 731
F.3d at 341; United States v. Cabrera-Umanzor, 728 F.3d 347, 353
(4th Cir. 2013); see also Rendon, 764 F.3d at 1086. Elements,
as distinguished from means, are factual circumstances of the
offense the jury must find “unanimously and beyond a reasonable
doubt.” Royal, 731 F.3d at 341 (quoting Descamps, 133 S. Ct. at
2288). In analyzing this distinction, we must consider how
Virginia courts generally instruct juries with respect to
larceny. See id.
Our decision in Royal is particularly instructive. In that
case we addressed a crime defined in the alternative – assault
under Maryland law – and held that it was indivisible under
Descamps. 731 F.3d at 340-341. Like here, the government
argued that use of the disjunctive “or” in the definition of
assault made the crime divisible, thus warranting application of
the modified approach. Id. at 341. But we rejected that
argument, holding that the requirements on either side of the
“or” were “merely alternative means of satisfying a single
element” of assault, rather than alternative elements. Id. at
341. This was true because “Maryland juries are not instructed
that they must agree 'unanimously and beyond a reasonable doubt'
on whether the defendant caused either ‘offensive physical
14
contact’ or ‘physical harm’ to the victim; rather, it is enough
that each juror agree only that one of the two occurred, without
settling on which.” Id.
We likewise conclude here that Virginia juries are not
instructed to agree “unanimously and beyond a reasonable doubt”
on whether defendants charged with larceny took property
“wrongfully” or “fraudulently.” Rather, as in Royal, it is
enough for a larceny conviction that each juror agrees only that
either a “wrongful or fraudulent” taking occurred, without
settling on which. By way of example, the Virginia model jury
instruction for grand larceny requires only a finding that “the
taking was against the will and without the consent of the
owner.” 2-36 Virginia Model Jury Instructions – Criminal
G36.100 (2014). The model instruction does not tell the jury to
distinguish between wrongful and fraudulent takings – rather, it
only requires a finding of a taking “without the consent of the
owner.” Id. Moreover, Virginia law has long used the
“wrongful” versus “fraudulent” distinction as two different
means of satisfying the “without consent” element:
The common law had substantial difficulty
with cases in which the thief, intending
permanently to deprive the possessor of his
chattel, obtained possession of it with the
apparent consent of the possessor by use of
some fraud. Such conduct, called larceny by
trick, was assimilated into larceny on the
theory that consent obtained by fraud was
not true consent and hence that the taker
15
had trespassed upon the chattel without
consent of the possessor. The Virginia
definition [of larceny], by use of the word
“fraudulent” has adopted this doctrine and
often applied it. This is the theory upon
which cashing a forged check becomes
larceny.
Ronald J. Bacigal, Larceny and Receiving, in Virginia Practice
Series, Va. Prac. Criminal Offenses & Defenses L3 (2014); see
also John Wesley Bartram, Note, Pleading for Theft Consolidation
in Virginia: Larceny, Embezzlement, False Pretenses and § 19.2-
284, 56 Wash. & Lee L. Rev. 249, 260-61 (1999) (noting that
Virginia incorporates larceny by trick into its common law
larceny definition through the use of the word “fraudulent”);
Skeeter, 232 S.E.2d at 758 (holding that personal property
acquired with fraudulently obtained consent will sustain a
larceny conviction); United States v. Argumedo-Perez, 326 F.
App’x 293, 295-98 (5th Cir. 2009) (per curiam) (holding that the
“without consent” element of Virginia larceny includes
“fraudulently obtained consent” and so a Virginia larceny
conviction does not constitute a generic federal theft crime). 13
Put simply, wrongful or fraudulent takings are alternative means
of committing larceny, not alternative elements.
13
Although Virginia law does distinguish certain types of
fraud offenses from general larceny, see Va. Code Ann. §§ 18.2-
111 (proscribing embezzlement), 18.2-178 (proscribing obtaining
money by false pretense), the above authorities clearly
demonstrate that larceny by trick – a fraud-based offense – is
included within Virginia’s general definition of larceny.
16
In summary, we conclude that larceny in Virginia law is
indivisible as a matter of law. That means only the categorical
approach applies. And as established above, Omargharib’s
larceny conviction is not categorically an INA theft offense.
The government makes no meaningful argument to rebut this
analysis other than pointing to the disjunctive “or” in
Virginia’s definition of larceny. 14 As such, it has not
satisfied its burden to establish removability by clear and
convincing evidence. See Karimi, 715 F.3d at 566.
III.
Because Omargharib’s 2011 conviction for grand larceny, in
violation of Va. Code Ann. § 18.2-95, was not a “theft offense”
under the INA, the BIA erred as a matter of law in relying on
that conviction as a basis to order his removal under 8 U.S.C.
14
The government’s policy argument that a ruling in
Omargharib’s favor will end deportations for theft and fraud
crimes in Virginia is not well-founded. Although Virginia
larceny convictions will no longer support an “aggravated
felony” finding under the INA, “escaping aggravated felony
treatment does not mean escaping deportation . . . . It means
only avoiding mandatory removal.” Moncrieffe, 133 S. Ct. at
1692. A Virginia larceny conviction can still render a non-
citizen deportable in some instances, though with the
opportunity to seek discretionary relief. See 8 U.S.C.
§§ 1227(a)(2)(A)(i), 1229b. Thus, “to the extent that our
rejection of the Government’s broad understanding of the scope
of ‘aggravated felony’ may have any practical effect on policing
our Nation’s borders, it is a limited one.” Moncrieffe, 133 S.
Ct. at 1692 (quoting Carachuri-Rosendo v. Holder, 560 U.S. 563,
581 (2010)).
17
§ 1227(a)(2)(A)(iii). Accordingly, we grant Omargharib’s
petition for review, reverse the BIA’s decision, and remand the
action with instructions to vacate Omargharib’s order of
removal.
PETITION FOR REVIEW GRANTED;
REVERSED AND REMANDED WITH INSTRUCTIONS
18
NIEMEYER, Circuit Judge, concurring:
I am pleased to concur in Judge Floyd’s well-crafted
opinion, especially in light of the existing state of the law
regarding when to apply the modified categorical approach.
Because of the ever-morphing analysis and the increasingly
blurred articulation of applicable standards, we are being asked
to decide, without clear and workable standards, whether
disjunctive phrases in a criminal law define alternative
elements of a crime or alternative means of committing it.
More particularly, in this case, we are called upon to
decide whether a wrongful taking and a fraudulent taking are
alternative elements defining two versions of the crime of
larceny or alternative means of committing larceny. While Judge
Floyd concludes that the applicable Virginia law defines
alternative means, thereby precluding use of the modified
categorical approach under current law, I find it especially
difficult to comprehend the distinction. Virginia’s law could
just as easily be viewed as prescribing two crimes: (1) larceny
by wrongful taking, and (2) larceny by fraudulent taking. ∗
∗
The applicable statute prohibits “simple larceny not from
the person of another of goods and chattels of the value of $200
or more,” Va. Code Ann. § 18.2-95(ii), leaving “larceny” to be
defined by common law. The Virginia Supreme Court has defined
larceny as “the wrongful or fraudulent taking of another’s
property without his permission and with the intent to
(Continued)
The Supreme Court’s recent decision in Descamps v. United
States, 133 S. Ct. 2276 (2013), which adopted the elements-
versus-means distinction, is the source of much of the
confusion. In Descamps, the Court held that it was error to
apply the modified categorical approach to determine whether a
defendant’s prior burglary conviction was for generic burglary
when the California statute under which he was convicted
prohibited a person from entering specified locations with
intent to commit grand or petit larceny or any felony. Id.
at 2282. In its discussion, the Court recognized that a
hypothetical statute defining burglary as the illegal “entry of
an automobile as well as a building” would be divisible, thus
justifying application of the modified categorical approach.
Id. at 2284 (quoting Taylor v. United States, 495 U.S. 575, 602
(1990)) (internal quotation marks omitted). It similarly noted
that it had previously recognized such divisibility in Nijhawan
v. Holder, 557 U.S. 29 (2009). To distinguish those cases and
others, however, the Descamps Court explained that “[a]ll those
decisions rested on the explicit premise that the laws
‘contain[ed] statutory phrases that cover several
different . . . crimes,’ not several different methods of
permanently deprive the owner of that property.” Britt v.
Commonwealth, 667 S.E.2d 763, 765 (Va. 2008) (emphasis added).
20
committing one offense.” 133 S. Ct. at 2285 n.2 (quoting
Johnson v. United States, 559 U.S. 133, 144 (2010)). While the
Court acknowledged that the California statute left open the
possibility that several means could be employed to commit
burglary, some but not all of which would qualify as generic
burglary, it dismissed the concern that “distinguishing between
‘alternative elements’ and ‘alternative means’ is difficult,”
telling us not “to worry.” Id. The Court elaborated:
Whatever a statute lists (whether elements or means),
the documents we approved in Taylor and Shepard . . .
[will] reflect the crime’s elements. So a court need
not parse state law in the way the dissent suggests:
When a state law is drafted in the alternative, the
court merely resorts to the approved documents and
compares the elements revealed there to those of the
generic offense.
Id. Respectfully, this purportedly comforting language hardly
clarifies. Indeed, in dissent, Justice Alito stated:
While producing very modest benefits at most, the
Court’s holding will create several serious
problems. . . . To determine whether a statute
contains alternative elements, as opposed to merely
alternative means of satisfying an element, a
court . . . will be required to look beyond the text
of the statute, which may be deceptive. . . . The
only way to be sure whether particular items are
alternative elements or simply alternative means of
satisfying an element may be to find cases concerning
the correctness of jury instructions that treat the
items one way or the other. And such cases may not
arise frequently.
Id. at 2301-02 (Alito, J., dissenting). In Justice Alito’s
view, a more practical approach is required.
21
Similarly, in his separate concurring opinion, Justice
Kennedy agreed that “the dichotomy between divisible and
indivisible state criminal statutes is not all that clear” and
suggested that the Court’s decision would require state
legislatures to amend their statutes to meet the Court’s new
divisibility requirement. Descamps, 133 S. Ct. at 2293-94
(Kennedy, J., concurring). He indicated that “[t]his is an
intrusive demand on the States.” Id. at 2294.
The relevant Virginia conviction for grand larceny in this
case could have been obtained either by showing that the
defendant wrongfully took property, which Judge Floyd notes
would constitute a generic theft conviction, or by showing that
the defendant fraudulently took property, which he notes would
not constitute generic theft. One would think that whether the
defendant was convicted of a wrongful taking or a fraudulent
taking could appropriately be resolved by looking at the
documents identified in Shepard v. United States, 544 U.S. 13
(2005). And this seems to have been the approach taken for
years before Descamps. Yet Descamps now applies a confusing
layer to this analysis that renders this area of the law
unsatisfactorily amorphous by limiting the use of Shepard
documents to distinguish elements but not means. Judge Floyd’s
analysis in this case is thus as good as any.
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Were the Supreme Court willing to take another look at this
area of law, it might well be persuaded, when focusing on the
goals of the categorical approach, to simply allow lower courts
to consider Shepard documents in any case where they could
assist in determining whether the defendant was convicted of a
generic qualifying crime. See, e.g., United States v. Gomez,
690 F.3d 194, 204 (4th Cir. 2012) (Niemeyer, J., dissenting)
(“In determining what convictions qualify as a sentencing
enhancement, courts [should be] authorized to use the modified
categorical approach pragmatically whenever the approach yields
an answer, in circumstances made ambivalent by an overbroad
statute, to whether the prior conviction qualifies as a
predicate conviction, so long as the use of the approach avoids
‘subsequent evidentiary inquiries in the factual basis for the
earlier conviction’ and ‘collateral trials’” (quoting Shepard,
544 U.S. at 20, 23)). It is difficult to find any downside to
such a pragmatic approach. Moreover, such an approach would
yield the same result here because no Shepard documents were
available to show that Omargharib was convicted of a crime that
qualifies as generic theft.
23