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SCOTUS Takes Burglary-Prior ACCA Case

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The US Supreme Court has once again granted certiorari in a couple of cases in a midsummer orders list, a departure from usual practice.

The criminal case taken up is Descamps v. United States, No. 11-9540.  The Ninth Circuit's unpublished opinion in the case is here.  The case has to do with sentence enhancements for prior convictions, in this case a California commercial burglary.

The Ninth Circuit opinion rejected two arguments.  One was an Apprendi-based argument that priors such as this one must be found by the jury.  The Supreme Court rejected that argument in Almendarez-Torres v. United States, 523 U.S. 224 (1998), but that precedent is considered by many to be a ripe target for overruling.

The second argument is that California's definition of "burglary" is too broad to qualify as "burglary" for the purpose of the federal sentencing statute.  This is a chronic problem in recidivist sentencing when priors come from other jurisdictions with different definitions.

The order granting certiorari limits the case to one of the questions presented.  From Lyle Denniston's post at SCOTUSblog, that appears to be the burglary-definition question.

Update:  The Questions Presented, as framed by the petitioner, are now available here.  Question 1, which the Court agreed to take up, is:

Whether the Ninth Circuit's ruling in United States v. Aguila-Montes De Oca, 655 F.3d 915 (9th Cir. 2011), (En Banc) that a state conviction for burglary where the statute is missing an element of the generic crime, may be subject to the modified categorical approach, even though most other Circuit Courts of Appeal would not allow it.
Question 2, which the Court turned down, was the Almendarez-Torres question. The fact that there are not four votes to take up that question, even while the Court takes up a case presenting it on another issue, indicates that Almendarez-Torres is not as ripe for overruling as many have thought.

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